[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.

[[Page 440]]

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

[[Page 441]]

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.

[[Page 442]]

    (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

[[Page 443]]

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,

[[Page 444]]

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

[[Page 445]]

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,

[[Page 446]]

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.

[[Page 447]]

    (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

[[Page 457]]

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

[[Page 458]]

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

[[Page 462]]

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

[[Page 463]]

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

[[Page 464]]

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

[[Page 465]]

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.



Sec. 166.102  Do tribal laws apply to permits?

    Tribal laws will apply to permits of Indian land under the 
jurisdiction of the tribe enacting such laws, unless those tribal laws 
are inconsistent with applicable federal law.

[[Page 473]]



Sec. 166.103  How will tribal laws be enforced on Indian agricultural land?

    (a) Unless prohibited by federal law, we will recognize and comply 
with tribal laws regulating activities on Indian 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 Indian 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 Indian agricultural land, under Sec. 166.104(b) of this 
part; 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. 166.2 of this part, 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. 166.104  What notifications are required that tribal laws apply to 
permits on Indian agricultural lands?

    (a) Tribes must notify us of the content and effective dates of new 
tribal laws.
    (b) We will then notify affected Indian landowners and any persons 
or entities undertaking activities on Indian agricultural lands of the 
superseding or modifying effect of the tribal law. We will:
    (1) Provide individual written notice; or
    (2) Post public notice. This notice will be posted at the tribal 
community building, U.S. Post Office, and/or published in the local 
newspaper nearest to the Indian lands where activities are occurring.



                      Subpart C_Permit Requirements

                          General Requirements



Sec. 166.200  When is a permit needed to authorize possession of Indian 
land for grazing purposes?

    (a) Unless otherwise provided for in this part, any person or legal 
entity, including an independent legal entity owned and operated by a 
tribe, must obtain a permit under these regulations before taking 
possession of Indian land for grazing purposes.
    (b) An Indian landowner who owns 100% of the trust or restricted 
interests in a tract may take possession of that Indian land without a 
permit or any other prior authorization from us.
    (c) If an Indian landowner does not own 100 percent (%) of his or 
her Indian land and wants to use the Indian land for grazing purposes, a 
permit must be granted by the majority interest of the fractionated 
tract.



Sec. 166.201  Must parents or guardians of Indian minors who own Indian 
land obtain a permit before using land for grazing purposes?

    Parents or guardians need not obtain a permit for Indian lands owned 
by their minor Indian children if:
    (a) Those minor children own 100 percent (%) of the land; and
    (b) The minor children directly benefit from the use of the land. We 
may require the user to provide evidence of the direct benefits to the 
minor children. When one of the minor children becomes an adult, the 
permit will have to be obtained from the majority interest.



Sec. 166.202  May an emancipated minor grant a permit?

    Yes. An emancipated minor may grant a permit.



Sec. 166.203  When can the Indian landowners grant a permit?

    (a) Tribes grant permits of tribal land, including any tribally-
owned undivided interest(s) in a fractionated tract. A permit granted by 
the tribe

[[Page 474]]

must be approved by us, unless the permit is authorized by a charter 
approved by us under 25 U.S.C. Sec. 477, or unless our approval is not 
required under other applicable federal law. In order to permit tribal 
land in which the beneficial interest has been assigned to another 
party, the assignee and the tribe must both grant the permit, subject to 
our approval.
    (b) Individual Indian landowners may grant a permit of their land, 
including their undivided interest in a fractionated tract, subject to 
our approval. Except as otherwise provided in this part, these Indian 
landowners may include the owner of a life estate holding 100 percent 
(%) interest in their land.
    (c) The owners of a majority interest in the Indian ownership of a 
fractionated tract may grant a permit, subject to our approval, without 
giving prior notice to the minority Indian landowners as long as the 
minority interest owners receive fair annual rental.



Sec. 166.204  Who may represent an individual Indian landowner in granting 
a permit?

    The following individuals or entities may represent an individual 
Indian landowner in granting a permit:
    (a) An adult with custody acting on behalf of their 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 permitted; 
and
    (3) Describes the scope of the power granted and any limits thereon.



Sec. 166.205  When can the BIA grant a permit on behalf of Indian landowners?

    (a) We may grant a permit on behalf of:
    (1) An individual who is adjudicated to be non compos mentis by a 
court of competent jurisdiction;
    (2) An orphaned minor;
    (3) An Indian landowner who has granted us written authority to 
permit his or her land;
    (4) The undetermined heirs and devisees of a deceased Indian 
landowner;
    (5) An Indian landowner whose whereabouts are unknown to us after a 
reasonable attempt is made to locate the Indian landowner;
    (6) Indian landowners, where:
    (i) We have provided written notice of our intent to grant a permit 
on their behalf, but the Indian landowners are unable to agree upon a 
permit during a three-month negotiation period immediately following 
such notice, or any other notice period established by a tribe under 
Sec. 166.100(c)(2) of this part; and
    (ii) The land is not being used by an individual Indian landowner 
under Sec. 166.200 of this part.
    (7) The individual Indian owners of fractionated Indian land, when 
necessary to protect the interests of the individual Indian landowners.



Sec. 166.206  What requirements apply to a permit on a fractionated tract?

    We may grant a permit on behalf of all Indian landowners of a 
fractionated tract as long as the owners receive fair annual rental. 
Before granting such a permit, we may offer a preference right to any 
Indian landowner who:
    (a) Is in possession of the entire tract;
    (b) Submits a written offer to permit the land, subject to any 
required or negotiated terms and conditions, prior to our granting a 
permit to another party; and
    (c) Provides any supporting documents needed to demonstrate the 
ability to perform all of the obligations under the proposed permit.



Sec. 166.207  What provisions will be contained in a permit?

    A permit, at a minimum, must include:
    (a) Authorized user(s);
    (b) Conservation plan requirements;
    (c) Prohibition against creating a nuisance, any illegal activity, 
and negligent use or waste or resources;
    (d) Numbers and types of livestock allowed;
    (e) Season(s) of use;

[[Page 475]]

    (f) Grazing rental payment, payment schedule, and late payment 
interest and penalties;
    (g) Administrative fees;
    (h) Tribal fees, if applicable;
    (i) Payment method;
    (j) Range unit number or name;
    (k) Animal identification requirements;
    (l) A description (preferably a legal description) of the permitted 
area;
    (m) Term of permit (including beginning and ending dates of the term 
allowed, as well as any option to renew, extend or terminate);
    (n) Conditions for making improvements, if any;
    (o) A right of entry by the BIA for purposes of inspection or 
enforcement purposes;
    (p) A provision concerning the applicability of tribal jurisdiction;
    (q) A provision stating how trespass proceeds are to be distributed; 
and
    (r) A provision for the permittee to 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 
material from the permitted premises that occur during the permit term, 
regardless of fault.



Sec. 166.208  How long is a permit term?

    (a) The duration must be reasonable given the purpose of the permit 
and the level of investment required by the permittee to place the 
property into productive use.
    (b) On behalf of the undetermined heirs of an individual Indian 
decedent owning 100 percent (%) interest in the land, we will grant or 
approve permits for a maximum term of two years.
    (c) Permits granted for agricultural purposes will not usually 
exceed ten years. A term longer than ten years, but not to exceed 25 
years unless authorized by other federal law, may be authorized when a 
longer term is determined by us to be in the best interest of the Indian 
landowners and when such permit requires substantial investment in the 
development of the lands by the permittee.
    (d) A tribe may determine the duration of permits composed entirely 
of its tribal land or in combination with government land, subject to 
the same limitations provided in paragraph (d) of this section.
    (e) A permit will specify the beginning and ending dates of the term 
allowed, as well as any option to renew, extend, or terminate.
    (f) Permits granted by us for protection of the Indian land will be 
for no more than two years.



Sec. 166.209  Must a permit be recorded?

    A permit must be recorded in our Land Titles and Records Office 
which has jurisdiction over the land. We will record the permit 
immediately following our approval under this subpart.



Sec. 166.210  When is a decision by the BIA regarding a permit effective?

    Our decision to approve a permit will be effective immediately, 
notwithstanding any appeal which may be filed under Part 2 of this 
title. Copies of the approved permit will be provided to the permitee 
and made available to the Indian landowners upon request.



Sec. 166.211  When are permits effective?

    Unless otherwise provided in the permit, a permit will be effective 
on the date on which the permit is approved by us. A permit may be made 
effective on some past or future date, by agreement, but such a permit 
may not be granted or approved more than one year prior to the date on 
which the permit term is to commence.



Sec. 166.212  When may a permittee take possession of permitted Indian land?

    The permittee may take possession of permitted Indian land on the 
date specified in the permit as the beginning date of the term, but not 
before we approve the permit.



Sec. 166.213  Must I comply with any standards of conduct if I am granted 
a permit?

    Yes. Permittees are expected to:
    (a) Conduct grazing operations in accordance with the principles of 
sustained yield management, agricultural resource management planning, 
sound

[[Page 476]]

conservation practices, and other community goals as expressed in tribal 
laws, agricultural resource management plans, and similar sources.
    (b) Comply with all applicable laws, ordinances, rules, regulations, 
and other legal requirements. You must also pay all applicable penalties 
that may be assessed for non-compliance.
    (c) Fulfill all financial obligations of your permit owed to the 
Indian landowners and the United States.
    (d) Conduct only those activities authorized by the permit.



Sec. 166.214  Will the BIA notify the permittee of any change in land 
title status?

    Yes. We will notify the permittee if a fee patent is issued or if 
restrictions are removed. After we notify the permittee our obligation 
under Sec. 166.228 of this part ceases.

                           Obtaining A Permit



Sec. 166.215  How can I find Indian land available for grazing?

    You may contact a local BIA office or tribal office to determine 
what Indian land may be available for grazing permits.



Sec. 166.216  Who is responsible for permitting Indian land?

    The Indian landowner is primarily responsible for granting permits 
on their Indian land, with the assistance and approval of the BIA, 
except where otherwise provided by law. You may contact the local BIA or 
tribal office for assistance in obtaining a permit for grazing purposes 
on Indian land.



Sec. 166.217  In what manner may a permit on Indian land be granted?

    (a) A tribe may grant a permit on tribal land through tribal 
allocation, negotiation, or advertisement in accordance with Sec. 
166.203 of this part. We must approve all permits of tribal land in 
order for the permit to be valid, except where otherwise provided by 
law.
    (b) Individual Indian landowners may grant a permit on their Indian 
land through negotiation or advertisement in accordance with Sec. 
166.203 of this part. We must approve all permits of Individual Indian 
land in order for the permit to be valid.
    (c) We will grant permits through negotiation or advertisement for 
range units containing, in whole or part, individually-owned Indian land 
and range units that consist of, or in combination with individually-
owned Indian land, tribal or government land, under Sec. 166.205 of 
this part. We will consult with tribes prior to granting permits for 
range units that include tribal land.



Sec. 166.218  How do I acquire a permit through tribal allocation?

    (a) A tribe may allocate grazing privileges on range units 
containing trust or restricted land which is entirely tribally-owned or 
which contains only tribal and government land under the control of the 
tribe.
    (b) A tribe may allocate grazing privileges to its members and to 
tribally-authorized entities without competitive bidding on tribal and 
tribally-controlled government land.
    (c) We will implement the tribe's allocation procedure by 
authorizing the grazing privileges on individually-owned Indian land and 
government land, subject to the rental rate provisions in Sec. 
166.400(b) and (c) of this part.
    (d) A tribe may prescribe the eligibility requirements for 
allocations 60 days before granting a new permit or before an existing 
permit expires.
    (e) 120 days before the expiration of existing permits, we will 
notify the tribe of the 60-day period during which the tribe may 
prescribe eligibility requirements.
    (f) We will prescribe the eligibility requirements after the 
expiration of the 60-day period in the event satisfactory action is not 
taken by the tribe.
    (g) Grazing rental rates for grazing privileges allocated from an 
existing permit, in whole or in part, must equal or exceed the rates 
paid by the preceding permittee(s). Tribal members will pay grazing 
rental rates established by the tribe on tribal lands.



Sec. 166.219  How do I acquire a permit through negotiation?

    (a) Permits may be negotiated and granted by the Indian landowners 
with the permittee of their choice. The BIA may negotiate and grant 
permits on behalf of Indian landowners pursuant to Sec. 166.205 of this 
part.

[[Page 477]]

    (b) Upon the conclusion of negotiations with the Indian landowners 
or their representatives, and the satisfaction of any applicable 
conditions, you may submit an executed permit and any required 
supporting documents to us for appropriate action. Where a permit 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 this part have 
been received, we will decide whether to approve the permit within 30 
days of the date of our receipt of the permit and supporting documents. 
If we decide to approve or disapprove a permit, we will notify the 
parties immediately and advise them of their right to appeal the 
decision under part 2 of this title.
    (c) In negotiating a permit, the Indian landowners may choose to 
include their land in the permit in exchange for their receipt of a 
share of the revenues or profits generated by the permit. Under such an 
arrangement, the permit may be granted to a joint venture or other legal 
entity owned, in part, by the Indian landowners.
    (d) Receipt of permit payments based upon income received from the 
land will not, of itself, make the Indian landowner a partner, joint 
venturer, or associate of the permittees.
    (e) We will assist prospective permittees in contacting the Indian 
landowners or their representatives, for the purpose of negotiating a 
permit.



Sec. 166.220  What are the basic steps for acquiring a permit through 
negotiation?

    The basic steps for acquiring a permit by negotiation are as 
follows:
    (a) The BIA or the Indian landowner will:
    (1) Receive a request to permit from an Indian landowner or the 
potential permittee;
    (2) Prepare the permit documents; and
    (3) Grant the permit.
    (b) A potential permittee will complete the requirements for 
securing a permit, (e.g., bond, insurance, payment of administrative 
fee, etc.);
    (c) We will:
    (1) Review the permit for proper documentation and compliance with 
all applicable laws and regulations;
    (2) Approve the permit after our review;
    (3) Send the approved permit to the permittee and, upon request, to 
the Indian landowner; and
    (4) Record and maintain the approved permit.



Sec. 166.221  How do I acquire an advertised permit through competitive 
bidding?

    (a) As part of the negotiation of a permit, Indian landowners may 
advertise their Indian land to identify potential permittees with whom 
to negotiate.
    (b) When the BIA grants and approves a permit on behalf of an 
individual Indian landowner using an advertisement for bids, we will:
    (1) Prepare and distribute an advertisement of lands available for 
permit that identifies the terms and conditions of the permit sale, 
including, for agricultural permits, any preference rights;
    (2) Solicit sealed bids and conduct the public permit sale;
    (3) Determine and accept the highest or best responsible bidder(s), 
which may require further competitive bidding after the bid opening; and
    (4) Prepare permits for successful bidders.
    (c) After completion of the steps in paragraph (b) of this section, 
the successful bidder must complete and submit the permit and satisfy 
all applicable requirements, (e.g., bond, insurance, payment of 
administrative fee, etc.).
    (d) After review of the permit documentation for proper completion 
and compliance with all applicable laws and regulations, within 30 days 
we will:
    (1) Grant and approve the permit on behalf of Indian landowners 
where we are authorized to do so by law;
    (2) Distribute the approved permit to the permittee(s) and, upon 
request, to the Indian landowner(s); and
    (3) Record and maintain the approved permit.

[[Page 478]]



Sec. 166.222  Are there standard permit forms?

    Yes. Standard permit forms, including bid forms, permit forms, and 
permit modification forms are available at our agency offices.

                       Permit (Leasehold) Mortgage



Sec. 166.223  Can I use a permit as collateral for a loan?

    We may approve a permit containing a provision that authorizes the 
permittee to encumber the permit interest, known as a leasehold 
mortgage, for the development and improvement of the permitted Indian 
land. We must approve the leasehold mortgage that encumbers the permit 
interest before it can be effective. We will record the approved 
leasehold mortgage instrument.



Sec. 166.224  What factors does the BIA consider when reviewing a leasehold 
mortgage?

    (a) We will approve the leasehold mortgage if:
    (1) All consents required in the permit have been obtained from the 
Indian landowners and any surety or guarantor;
    (2) The mortgage covers only the permit interest, and no unrelated 
collateral belonging to the permittee;
    (3) The financing being obtained will be used only in connection 
with the development or use of the permitted premises, and the mortgage 
does not secure any unrelated obligations owed by the permittee to the 
mortgagee; and
    (4) We find no compelling reason to withhold our approval, in order 
to protect the best interests of the Indian landowner.
    (b) In making the finding required by paragraph (a)(4) of this 
section, we will consider whether:
    (1) The ability to perform the permit obligations would be adversely 
affected by the cumulative mortgage obligations;
    (2) Any negotiated permit provisions as to the allocation or control 
of insurance or condemnation proceeds would be modified;
    (3) The remedies available to us or the Indian landowners would be 
limited (beyond the additional notice and cure rights to be afforded to 
the mortgagee), if the permittee defaults on the permit;
    (4) Any rights of the Indian landowners would be subordinated or 
adversely affected in the event of a foreclosure, assignment in lieu of 
foreclosure, or issuance of a ``new permit'' to the mortgagee.
    (c) We will notify the Indian landowners of our approval of the 
leasehold mortgage.



Sec. 166.225  May a permittee voluntarily assign a leasehold interest 
under an approved encumbrance?

    With our approval, under an approved encumbrance, a permittee 
voluntarily may assign the leasehold interest to someone other than the 
holder of a leasehold mortgage if the assignee agrees in writing to be 
bound by the terms of the permit. A permit may provide the Indian 
landowners with a right of first refusal on the conveyance of the 
leasehold interest.



Sec. 166.226  May the holder of a leasehold mortgage assign the leasehold 
interest after a sale or foreclosure of an approved encumbrance?

    Yes. The holder of a leasehold mortgage may assign a leasehold 
interest obtained by a sale or foreclosure of an approved encumbrance 
without our approval if the assignee agrees in writing to be bound by 
the terms of the permit. A permit may provide the Indian landowners with 
a right of first refusal on the conveyance of the permit interest 
(leasehold).

                           Modifying a Permit



Sec. 166.227  How can Indian land be removed from an existing permit?

    (a)We will remove Indian land from the permit if:
    (1)The trust status of the Indian land terminates;
    (2) The Indian landowners request removal of their interest, with 
the written approval of the majority interest of the fractionated tract 
to be removed, and we determine that the removal is beneficial to such 
interests;
    (3) A tribe allocates grazing privileges for Indian land covered by 
your permit under Sec. 166.218 of this part;

[[Page 479]]

    (4) The permittee requests removal of the Indian land, the owners of 
the majority interest of the Indian land provides written approval of 
the removal of the Indian land, and we determine that the removal is 
warranted; or
    (5) We determine that removal of the Indian land is appropriate, 
with the written approval of the owners of the majority interest of the 
Indian land.
    (b) We will revise the grazing capacity to reflect the removal of 
Indian land and show it on the permit.



Sec. 166.228  How will the BIA provide notice if Indian land is removed 
from an existing permit?

    If the reason for removal is:
    (a) Termination of trust status. We will notify the parties to the 
permit in writing within 30 days. The removal will be effective on the 
next anniversary date of the permit.
    (b) A request from Indian landowners or the permittee, or our 
determination. We will notify the parties to the permit in writing 
within 30 days of such request. The removal will be effective 
immediately if all sureties, Indian landowners, and permittee agree. 
Otherwise, the removal will be effective upon the next anniversary date 
of the permit. If our written notice is within 180 days of the 
anniversary date of the permit, the removal of Indian land will be 
effective 180 days after the written notice.
    (c) Tribal allocation under Sec. 166.218 of this part. We will 
notify the parties to the permit in writing within 180 days of such 
action. The removal of tribal land will be effective on the next 
anniversary date of the permit. If our written notice is within 180 days 
of the anniversary date of the permit, the removal of Indian land will 
be effective 180 days after the written notice.



Sec. 166.229  Other than to remove land, how can a permit be amended, 
assigned, subpermitted, or mortgaged?

    (a) We must approve an amendment, assignment, subpermit, or mortgage 
with the written consent of the parties to the permit in the same manner 
that the permit was approved, and the consent of the sureties.
    (b) Indian landowners may designate in writing one or more of their 
co-owners or representatives to negotiate and/or agree to amendments on 
their behalf.
    (1) The designated landowner or representative may:
    (i) Negotiate or agree to amendments; and
    (ii) Consent to or approve other items as necessary.
    (2) The designated landowner or representative may not:
    (i) Negotiate or agree to amendments that reduce the grazing rental 
payments payable to the other Indian landowners; or
    (ii) Terminate the permit or modify the term of the permit.
    (c) We may approve a permit for tribal land to individual members of 
a tribe which contains a provision permitting the assignment of the 
permit by the permittee or the lender without our approval when a 
lending institution or an agency of the United States:
    (1) Accepts the interest in the permit (leasehold) as security for 
the loan; and
    (2) Obtains the interest in the permit (leasehold) through 
foreclosure or otherwise.
    (d) We will revise the grazing capacity and modify the permit.



Sec. 166.230  When will a BIA decision to approve an amendment, assignment, 
subpermit, or mortgage under a permit be effective?

    Our decision to approve an amendment, assignment, subpermit, or 
mortgage under a permit will be effective immediately, notwithstanding 
any appeal which may be filed under Part 2 of this title. Copies of 
approved documents will be provided to the party requesting approval, 
and made available to the Indian landowners upon request.



Sec. 166.231  Must an amendment, assignment, subpermit, or mortgage approved 
under a permit be recorded?

    An amendment, assignment, subpermit, or mortgage approved under a 
permit must be recorded in our Land Titles and Records Office which has 
jurisdiction over the Indian land. We will record the document 
immediately following our approval.

[[Page 480]]



                Subpart D_Land and Operations Management



Sec. 166.300  How is Indian agricultural land managed?

    Tribes, individual Indian landowners, and the BIA will manage Indian 
agricultural land either directly or through contracts, compacts, 
cooperative agreements, or grants under the Indian Self-Determination 
and Education Assistance Act (Public Law 93-638, as amended).



Sec. 166.301  How is Indian land for grazing purposes described?

    Indian land for grazing purposes should be described by legal 
description (e.g., aliquot parts, metes and bounds) or other acceptable 
description. 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 permitted land.



Sec. 166.302  How is a range unit created?

    We create a range unit after we consult with the Indian landowners 
of rangeland, by designating units of compatible size, availability, and 
location.



Sec. 166.303  Can more than one parcel of Indian land be combined into 
one permit?

    Yes. A permit may include more than one parcel of Indian land. 
Permits may include tribal land, individually-owned Indian land, or 
government land, or any combination thereof.



Sec. 166.304  Can there be more than one permit for each range unit?

    Yes. There can be more than one permit for each range unit.



Sec. 166.305  When is grazing capacity determined?

    Before we grant, modify, or approve a permit, in consultation with 
the Indian landowners, we will establish the total grazing capacity for 
each range unit based on the summation of each parcel's productivity. We 
will also establish the season(s) of use on Indian lands.



Sec. 166.306  Can the BIA adjust the grazing capacity?

    Yes. In consultation with the Indian landowners or in the BIA's 
discretion based on good cause, we may adjust the grazing capacity using 
the best evaluation method(s) relevant to the ecological region.



Sec. 166.307  Will the grazing capacity be increased if I graze adjacent 
trust or non-trust rangelands not covered by the permit?

    No. You will not receive an increase in grazing capacity in the 
permit if you graze trust or non-trust rangeland in common with the 
permitted land. Grazing capacity will be established only for Indian 
land covered by your permit.



Sec. 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?

    Yes. The number of animals and/or season of use may be modified on 
permitted Indian land with an on-and-off grazing permit only when a 
conservation plan includes the use of adjacent trust or non-trust 
rangelands not covered by the permit and when that land is used in 
common with permitted land.



Sec. 166.309  Who determines livestock class and livestock ownership 
requirements on permitted Indian land?

    (a) Tribes determine the class of livestock and livestock ownership 
requirements for livestock that may be grazed on range units composed 
entirely of tribal land or which include government land, subject to the 
grazing capacity prescribed by us under Sec. 166.305 of this part.
    (b) For permits on range units containing, in whole or part, 
individually-owned Indian land, we will adopt the tribal determination 
in paragraph (a) of this section.



Sec. 166.310  What must a permittee do to protect livestock from 
exposure to disease?

    In accordance with applicable law, permittees must:
    (a) Vaccinate livestock;

[[Page 481]]

    (b) Treat all livestock exposed to or infected with contagious or 
infectious diseases; and
    (c) Restrict the movement of exposed or infected livestock.

              Management Plans and Environmental Compliance



Sec. 166.311  Is an Indian agricultural resource management plan required?

    (a) Indian 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 the AIARMA.
    (b) The 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. 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 tribe and its members and provide 
identified 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. 166.312  Is a conservation plan required?

    A conservation plan must be developed for each permit with the 
permittee and approved by us prior to the issuance of the permit. The 
conservation plan must be consistent with the tribe's agricultural 
resource management plan and must address the permittee's management 
objectives regarding animal husbandry and resource conservation. The 
conservation plan must cover the entire permit period and reviewed by us 
on an annual basis.



Sec. 166.313  Is environmental compliance required?

    Actions taken by the BIA under the regulations in this part must 
comply with the National Environmental Policy Act of 1969 (42 U.S.C. 
4321 et seq.), applicable regulations of the Council on Environmental 
Quality (40 CFR part 1500), and applicable tribal laws and regulations.

                 Conservation Practices and Improvements



Sec. 166.314  Can a permittee apply a conservation practice on permitted 
Indian land?

    Yes. A permittee can apply a conservation practice on permitted 
Indian land as long as the permittee has approval from the BIA and 
majority interest and the conservation practice is consistent with the 
conservation plan.



Sec. 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?

    Prior to undertaking a conservation practice, the BIA, landowner, 
and permittee will negotiate who will complete and maintain a 
conservation practice if the permit expires or is canceled before the 
conservation practice is completed. That conservation practice agreement 
will be reflected in the conservation plan and permit.



Sec. 166.316  Can a permittee construct improvements on permitted Indian 
land?

    Improvements may be constructed on permitted Indian land if the 
permit contains a provision allowing improvements.

[[Page 482]]



Sec. 166.317  What happens to improvements constructed on Indian lands 
when the permit has been terminated?

    (a) If improvements are to be constructed on Indian land, the permit 
must contain a provision that improvements will either:
    (1) Remain on the land upon termination of the permit, in a 
condition that is in compliance with applicable codes, to become the 
property of the Indian landowner; or
    (2) Be removed and the land restored within a time period specified 
in the permit. The land must be restored as close as possible to the 
original condition prior to construction of such improvements. At the 
request of the permittee we may, at our discretion, grant an extension 
of time for the removal of improvements and restoration of the land for 
circumstances beyond the control of the permittee.
    (b) If the permittee fails to remove improvements within the time 
allowed in the permit, the permittee may forfeit the right to remove the 
improvements and the improvements may become the property of the Indian 
landowner or at the request of the Indian landowner, we will apply the 
bond for the removal of the improvement and restoration of the land.



 Subpart E_Grazing Rental Rates, Payments, and Late Payment Collections

                Rental Rate Determination and Adjustment



Sec. 166.400  Who establishes grazing rental rates?

    (a) For tribal lands, a tribe may establish a grazing rental rate 
that is less or more than the grazing rental rate established by us. We 
will assist a tribe to establish a grazing rental rate by providing the 
tribe with available information concerning the value of grazing on 
tribal lands.
    (b) We will establish the grazing rental rate by determining the 
fair annual rental for:
    (1) Individually-owned Indian lands; and
    (2) Tribes that have not established a rate under paragraph (a) of 
this section.
    (c) Indian landowners may give us written authority to grant grazing 
privileges on their individually-owned Indian land at a grazing rental 
rate that is:
    (1) Above the grazing rental rate set by us; or
    (2) Below the grazing rental rate set by us, subject to our 
approval, when the permittee is a member of the Indian landowner's 
immediate family as defined in this part.



Sec. 166.401  How does the BIA establish grazing rental rates?

    An appraisal can be used to determine the rental value of real 
property. The development and reporting of the valuation will be 
completed in accordance with the Uniform Standards of Professional 
Appraisal Practices (USPAP). If an appraisal is not desired, competitive 
bids, negotiations, advertisements, or any other method can be used in 
conjunction with a market study, rent survey, or feasibility analysis 
developed in accordance with the USPAP.



Sec. 166.402  Why must the BIA determine the fair annual rental of Indian land?

    The BIA must determine the fair annual rental of Indian land to:
    (a) Assist the Indian landowner in negotiating a permit with 
potential permittees; and
    (b) Enable us to determine whether a permit is in the best interests 
of the Indian landowner.



Sec. 166.403  Will the BIA ever grant or approve a permit at less than 
fair annual rental?

    (a) We will grant a permit for grazing on individually-owned Indian 
land at less than fair annual rental if, after competitive bidding of 
the permit, we determine that such action would be in the best interests 
of the individual Indian landowners.
    (b) We may approve a permit for grazing on individually-owned Indian 
land at less than fair annual rental if:

[[Page 483]]

    (1) The permit is for the Indian landowner's immediate family or co-
owner; or
    (2) We determine it is in the best interest of the Indian 
landowners.
    (c) We may approve a permit for grazing on tribal land at less than 
fair annual rental if the tribe sets the rate.



Sec. 166.404  Whose grazing rental rate will be applicable for a permit 
on tribal land?

    The following grazing rental rate schedule will apply for tribal 
land:

------------------------------------------------------------------------
                                                       Then you will pay
        If you are * * *             And if * * *            * * *
------------------------------------------------------------------------
(a) Grazing livestock on tribal   The tribe           The rate set by
 land.                             established the     the tribe.
                                   grazing rental
                                   rate.
(b) Grazing livestock on tribal   No tribal grazing   The rate set by
 land.                             rental rate has     the BIA.
                                   been established.
(c) The successful bidder for                         Your rental rate
 use of any of these specific                          bid, but not less
 parcels of Indian land.                               than the minimum
                                                       bid rate
                                                       advertised.
------------------------------------------------------------------------



Sec. 166.405  Whose grazing rental rate will be applicable for a permit 
on individually-owned Indian land?

    The following grazing rental rate schedule will apply for 
individually-owned Indian land:

------------------------------------------------------------------------
       If you are * * *                 Then you will pay * * *
------------------------------------------------------------------------
(a) Grazing livestock on       The rate set by the BIA or by the
 Individually-owned Indian      individual Indian landowner and approved
 land.                          by us.
(b) The successful bidder for  Your rental rate bid, but not less than
 use of any of these specific   the minimum bid rate advertised, unless
 parcels of Indian land.        the permit is granted at less than fair
                                annual rental under Sec.  166.403.
(c) The recipient of an        The bid rate or the appraised rate,
 allocation from a bid unit.    whichever is higher.
------------------------------------------------------------------------



Sec. 166.406  Whose grazing rental rate will be applicable for a permit 
on government land?

    The following grazing rental rate schedule will apply for government 
land:

------------------------------------------------------------------------
                                                       Then you will pay
        If you are * * *             And if * * *            * * *
------------------------------------------------------------------------
(a) Grazing livestock on          The tribe has       The rate set by
 government land.                  control over the    the tribe.
                                   land or the tribe
                                   has authority to
                                   set the rate.
(b) Grazing livestock on          Government          The rate set by
 government land.                  controls all use    the BIA.
                                   of the land.
------------------------------------------------------------------------



Sec. 166.407  If a range unit consists of tribal and individually-owned 
Indian lands, what is the grazing rental rate?

    The grazing rental rate for tribal land will be the rate set by the 
tribe. The grazing rental rate for individually-owned Indian land will 
be the grazing rental rate set by us.



Sec. 166.408  Is the grazing rental rate established by the BIA adjusted 
periodically?

    Yes. To ensure that Indian landowners are receiving the fair annual 
return, we may adjust the grazing rental rate established by the BIA, 
based upon an appropriate valuation method, taking into account the 
value of improvements made under the permit, unless the permit provides 
otherwise, following the Uniform Standards of Professional Appraisal 
Practice.
    (a) We will:
    (1) Review the grazing rental rate prior to each anniversary date or 
when specified by the permit.
    (2) Provide you with written notice of any adjustment of the grazing 
rental rate 60 days prior to each anniversary date.
    (3) Allow the adjusted grazing rental rate to be less than the fair 
annual rental if we determine that such a rate is in the best interest 
of the Indian landowner.

[[Page 484]]

    (b) If adjusted, the grazing rental rate will become effective on 
the next anniversary date of the permit.
    (c) These adjustments will be retroactive, if they are not made at 
the time specified in the permit.
    (d) For permits granted by tribes, we will consult with the granting 
tribe to determine whether an adjustment of the grazing rental payment 
should be made. The permit must be modified to document the granting 
tribe's waiver of the adjustment. A tribe may grant a permit without 
providing for a rental adjustment, if the tribe establishes such a 
policy under Sec. 166.100(a)(4) of this part and negotiates such a 
permit.

                             Rental Payments



Sec. 166.409  How is my grazing rental payment determined?

    The grazing rental payment is the total of the grazing rental rate 
multiplied by the number of AUMs or acres covered by the permit.



Sec. 166.410  When are grazing rental payments due?

    The initial grazing rental payment is due and payable as specified 
in the permit or 15 days after the BIA approves the permit, whichever is 
later. Subsequent payments are due as specified in the permit.



Sec. 166.411  Will a permittee be notified when a grazing rental payment 
is due?

    Each permit states the schedule of rental payments agreed to by the 
parties. We will issue an invoice to the permittee 30 to 60 days prior 
to the rental payment due date.



Sec. 166.412  What if the permittee does not receive an invoice that 
a grazing rental payment is due?

    If we fail to send an invoice or if we send an invoice and the 
permittee does not receive it, the permittee is still responsible for 
making timely payment of all amounts due under the permit.



Sec. 166.413  To whom are grazing rental payments made?

    (a) A permit must specify whether grazing rental payments will be 
made directly to the Indian landowners or to us on behalf of the Indian 
landowners. If the permit provides for payment to be made directly to 
the Indian landowners, the permit must also require that the permittee 
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. 166.1000 
and 166.1001 of this part.
    (b) Grazing rental payments made directly to the Indian landowners 
must be made to the parties specified in the permit, unless the 
permittee receives a notice of a change of ownership. Unless otherwise 
provided in the permit, grazing rental payments may not be made payable 
directly to anyone other than the Indian landowners.
    (c) A permit which provides for grazing rental payments to be made 
directly to the Indian landowners must also provide for such payments to 
be suspended and rent thereafter paid to us, rather than directly than 
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. 166.414  What forms of grazing rental payments are acceptable?

    (a) When grazing rental 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 
permittee;
    (2) Money orders;
    (3) Cashier's checks;
    (4) Certified checks; or
    (5) Electronic funds transfer payments.

[[Page 485]]



Sec. 166.415  What will the BIA do if the permittee fails to make a 
direct payment to an Indian landowner?

    Within five business days of the Indian landowner's notification to 
us that a payment has not been received, we will contact the permittee 
either in writing or by telephone requesting that the permittee provide 
documentation (e.g., canceled check, cash receipt voucher, copy of a 
money order or cashier's check) showing that payment has been made to 
the Indian landowner. If the permitee fails to provide such 
documentation, we will follow the procedures identified in Sec. 166.419 
of this part to collect the money on behalf of the Indian landowner or 
to cancel the permit.



Sec. 166.416  May a permittee make a grazing rental payment in advance 
of the due date?

    Rent may be paid no more than 30 days in advance, unless otherwise 
specified in the permit.



Sec. 166.417  May an individual Indian landowner modify the terms of 
the permit on a fractionated tract for advance grazing rental payment?

    No. An individual Indian landowner of a fractionated tract may not 
modify a permit to allow a grazing rental payment in advance of the due 
date specified in the initial approved permit.



Sec. 166.418  When is a grazing rental payment late?

    A grazing rental payment is late if it is not received on or before 
the due date.

                     Late Rental Payment Collections



Sec. 166.419  What will the BIA do if grazing rental payments are not 
made in the time and manner required by the permit?

    (a) A permitee's failure to pay grazing rental payments in the time 
and manner required by a permit will be a violation of the permit, and a 
notice of violation will be issued under Sec. 166.703 of this part. If 
the permit requires that grazing rental payments be made to us, we will 
send the permittee and its sureties a notice of violation within five 
business days of the date on which the grazing rental payment was due. 
If the permit provides for payment directly to the Indian landowner(s), 
we will send the permittee 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 Indian landowner(s).
    (b) If a permittee fails to provide adequate proof of payment or 
cure the violation within the requisite time period described in Sec. 
166.704 of this part, 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 permit under Sec. 166.705 of this part, or invoke any other 
remedies available under the permit 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 
permit or any further notice to the permittee, nor will such an action 
be precluded by a prior cancellation.
    (c) Partial payments may be accepted, under special circumstances, 
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 permit violations. Unless otherwise provided in the permit, 
overpayments may be credited as an advance against future grazing rental 
payments.
    (d) If a personal or business check is dishonored, and a grazing 
rental 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 permit, 
and a written notice of violation will be issued under Sec. 166.703 of 
this part. Any payment made to cure such a default, and any future 
payments by the same permittee, must be made by one of the alternative 
payment methods listed in Sec. 166.414(b) of this part.



Sec. 166.420  Will any special fees be assessed on delinquent grazing 
rental payments due under a permit?

    The following special fees will be assessed if a grazing rental 
payment is not paid in the time and manner required, in addition to any 
interest or

[[Page 486]]

late payment penalties which must be paid to the Indian landowners under 
a permit. The following special fees will be assessed to cover 
administrative costs incurred by the United States in the collection of 
the debt:

------------------------------------------------------------------------
    The permittee will pay * * *                   For * * *
------------------------------------------------------------------------
(a) $50.00..........................  Administrative fee for checks
                                       returned by the bank for
                                       insufficient funds.
(b) $15.00..........................  Administrative fee for the BIA
                                       processing of each demand letter.
(c) 18% of balance due..............  Administrative fee charged by the
                                       Department of Treasury for
                                       collection.
------------------------------------------------------------------------



Sec. 166.421  If a permit is canceled for non-payment, does that 
extinguish the permittee's debt?

    No. The permittee remains liable for any delinquent payment. No 
future permits will be issued until all outstanding debts related to 
Indian agricultural lands are paid.

                    Compensation to Indian Landowners



Sec. 166.422  What does the BIA do with grazing rental payments received 
from permittees?

    Unless arrangements for direct payment to the Indian landowners has 
been provided, the rent will be deposited to the appropriate account 
maintained by the Office of Trust Funds Management in accordance with 
part 115 of this title.



Sec. 166.423  How do Indian landowners receive grazing rental payments 
that the BIA has received from permittees?

    Funds will be paid to the Indian landowners by the Office of Trust 
Funds Management in accordance with 25 CFR part 115.



Sec. 166.424  How will the BIA determine the grazing rental payment 
amount to be distributed to each Indian landowner?

    Unless otherwise specified in the permit, the grazing rental payment 
will be distributed to each Indian landowner according to the forage 
production that each parcel of Indian land contributes to the permit, 
annual rental rate of each parcel, and the Indian landowner's interest 
in each parcel.



                Subpart F_Administrative and Tribal Fees



Sec. 166.500  Are there administrative fees for a permit?

    Yes. We will charge an administrative fee before approving any 
permit, subpermit, assignment, encumbrance, modification, or other 
related document.



Sec. 166.501  How are annual administrative fees determined?

    (a) Except as provided in subsection (b), we will charge a three 
percent (%) administrative fee based on the annual grazing rent.
    (b) The minimum administrative fee is $10.00 and the maximum 
administrative fee is $500.00.
    (c) If a tribe performs all or part of the administrative duties for 
this part, the tribe may establish, collect, and use reasonable fees to 
cover its costs associated with the performance of administrative 
duties.



Sec. 166.502  Are administrative fees refundable?

    No. We will not refund administrative fees.



Sec. 166.503  May the BIA waive administrative fees?

    Yes. We may waive the administrative fee for a justifiable reason.



Sec. 166.504  Are there any other administrative or tribal fees, taxes, 
or assessments that must be paid?

    Yes. The permittee may be required to pay additional fees, taxes, 
and/or assessments associated with the use of the land as determined by 
us or by the tribe. Failure to make such payments will constitute a 
permit violation under subpart H of this part.



              Subpart G_Bonding and Insurance Requirements



Sec. 166.600  Must a permittee provide a bond for a permit?

    Yes. A permittee, assignee or subpermittee must provide a bond for 
each permit interest acquired. Upon request by an Indian landowner, we 
may waive the bond requirement.

[[Page 487]]



Sec. 166.601  How is the amount of the bond determined?

    (a) The amount of the bond for each permit is based on the:
    (1) Value of one year's grazing rental payment;
    (2) Value of any improvements to be constructed;
    (3) Cost of performance of any additional obligations; and
    (4) Cost of performance of restoration and reclamation.
    (b) Tribal policy made applicable by Sec. 166.100 of this part may 
establish or waive specific bond requirements for permits.



Sec. 166.602  What form of bonds will the BIA accept?

    (a) We will only accept bonds in the following forms:
    (1) Cash;
    (2) Negotiable Treasury securities that:
    (i) Have a market value equal to the bond amount; and
    (ii) Are accompanied by a statement granting full authority to the 
BIA to sell such securities in case of a violation of the terms of the 
permit.
    (3) Certificates of deposit that indicate on their face that 
Secretarial approval is required prior to redemption by any party;
    (4) Irrevocable letters of credit (LOC) issued by federally-insured 
financial institutions authorized to do business in the United States. 
LOC's must:
    (i) Contain a clause that grants the BIA authority to demand 
immediate payment if the permittee defaults or fails to replace the LOC 
within 30 calendar days prior to its expiration date;
    (ii) Be payable to the ``Department of the Interior, BIA'';
    (iii) Be irrevocable during its term and have an initial expiration 
date of not less than one year following the date we receive it; and
    (iv) Be automatically renewable for a period of not less than one 
year, unless the issuing financial institution provides the BIA with 
written notice at least 90 calendar days before the letter of credit's 
expiration date that it will not be renewed;
    (5) Surety bond; or
    (6) Any other form of highly liquid, non-volatile security 
subsequently approved by us that is easily convertible to cash by us and 
for which our approval is required prior to redemption by any party.
    (b) Indian landowners may negotiate a permit term that specifies the 
use of any of the bond forms described in paragraph (a) of this section.
    (c) A tribe may accept and hold any form of bond described in 
paragraph (a) of this section, to secure performance under a permit of 
tribal land.



Sec. 166.603  If cash is submitted as a bond, how is it administered?

    If cash is submitted as a bond, we will establish an account in the 
name of the permittee and retain it.



Sec. 166.604  Is interest paid on a cash performance bond?

    No. Interest will not be paid on a cash performance bond.



Sec. 166.605  Are cash performance bonds refunded?

    If the cash performance bond has not been forfeited for cause, the 
amount deposited will be refunded to the depositor at the end of the 
permit period.



Sec. 166.606  What happens to a bond if a violation occurs?

    We may apply the bond to remedy the violation, in which case we will 
require the permittee to submit a replacement bond of an appropriate 
amount.



Sec. 166.607  Is insurance required for a permit?

    When we determine it to be in the best interest of the Indian 
landowners, we will require a permittee to provide insurance. If 
insurance is required, it must:
    (a) Be provided in an amount sufficient to:
    (1) Protect any improvements on the permit premises;
    (2) Cover losses such as personal injury or death; and
    (3) Protect the interest of the Indian landowner.
    (b) Identify the tribe, individual Indian landowners, and United 
States as insured parties.

[[Page 488]]



Sec. 166.608  What types of insurance may be required?

    We may require liability or casualty insurance (such as for fire, 
hazard, or flood), depending upon the activity conducted under the 
permit.



                       Subpart H_Permit Violations



Sec. 166.700  What permit violations are addressed by this subpart?

    This subpart addresses violations of permit provisions other than 
trespass. Trespass is addressed under subpart I of this part.



Sec. 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?

    Unless the permit provides otherwise, we may enter the range unit at 
any reasonable time, without prior notice, to protect the interests of 
the Indian landowners and ensure that the permittee is in compliance 
with the operating requirements of the permit.



Sec. 166.702  Can a permit provide for negotiated remedies in the event 
of a permit violation?

    (a) A permit of tribal land may provide the tribe with certain 
negotiated remedies in the event of a permit violation, including the 
power to terminate the permit. A permit of individually-owned Indian 
land may provide the individual Indian landowners with similar remedies, 
so long as the permit also specifies the manner in which those remedies 
may be exercised by or on behalf of the Indian landowners. Any notice of 
violation must be provided by written notice.
    (b) The negotiated remedies described in paragraph (a) of this 
section will apply in addition to the cancellation remedy available to 
us under Sec. 166.705(c) of this subpart. If the permit 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 permit may provide for permit 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 any 
ongoing proceedings, as appropriate, in deciding whether to exercise any 
of the remedies available to us under Sec. 166.705 of this subpart.



Sec. 166.703  What happens if a permit violation occurs?

    (a) If an Indian landowner notifies us that a specific permit 
violation has occurred, we will initiate an appropriate investigation 
within five business days of that notification.
    (b) If we determine that a permit violation has occurred based on 
facts known to us, we will provide written notice to the permittee and 
the sureties of the violation within five business days.



Sec. 166.704  What will a written notice of a permit violation contain?

    The written notice of a permit violation will provide the permittee 
with ten days from the receipt of the written notice to:
    (a) Cure the permit violation and notify us that the violation is 
cured.
    (b) Explain why we should not cancel the permit; or
    (c) Request in writing additional time to complete corrective 
actions. If additional time is granted, we may require that certain 
corrective actions be taken immediately.



Sec. 166.705  What will the BIA do if a permit violation is not cured 
within the required time period?

    (a) If the permittee does not cure a violation within the required 
time period, we will consult with the Indian landowners, as appropriate, 
and determine whether:
    (1) The permit should be canceled by us under paragraph (c) of this 
section and Sec. Sec. 166.706 through 166.707 of this subpart;
    (2) We should invoke any other remedies available to us under the 
permit, including collecting on any available bond;
    (3) The Indian landowners wish to invoke any remedies available to 
them under the permit; or

[[Page 489]]

    (4) The permittee should be granted additional time in which to cure 
the violation.
    (b) If we decide to grant a permittee additional time in which to 
cure a violation, the permittee 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 permit, we will send the permittee 
and its sureties a written notice of cancellation within five business 
days of that decision. We will also provide actual or constructive 
notice of a cancellation decision to the Indian landowners, as 
appropriate. The written notice of cancellation will:
    (1) Explain the grounds for cancellation;
    (2) Notify the permittee of the amount of any unpaid rent, interest 
charges, or late payment penalties due under the permit;
    (3) Notify the permittee of its right to appeal under Part 2 of this 
chapter, as modified by Sec. 166.706 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 permittee to vacate the property within 30 days of the 
date of receipt of the written notice of cancellation, if an appeal is 
not filed by that time.



Sec. 166.706  Will the BIA's regulations concerning appeal bonds 
apply to cancellation decisions involving permits?

    (a) The appeal bond provisions in Sec. 2.5 of part 2 of this 
chapter will not apply to appeals from permit cancellation decisions 
made under Sec. 166.705 of this subpart. Instead, when we decide to 
cancel a permit, we may require the permittee to 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 
permit cancellation decision.



Sec. 166.707  When will a cancellation of a permit be effective?

    A cancellation decision involving a permit will not be effective for 
30 days after the permittee receives a written notice of cancellation 
from us. The cancellation decision will remain ineffective if the 
permittee files an appeal under Sec. 166.706 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 permittee must 
continue to pay rent and comply with the other terms of the permit. If 
an appeal is not filed in accordance with Sec. 166.706 of this subpart 
and part 2 of this chapter, the cancellation decision will be effective 
on the 31st day after the permittee receives the written notice of 
cancellation from us.



Sec. 166.708  Can the BIA take emergency action if the rangeland is 
threatened with immediate, significant, and irreparable harm?

    Yes. If a permittee or any other party causes or threatens to cause 
immediate, significant and irreparable harm to the Indian land during 
the term of a permit, we will take appropriate emergency action. 
Emergency action may include trespass proceedings under subpart I of 
this part, 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. 166.709  What will the BIA do if a permittee holds over after 
the expiration or cancellation of a permit?

    If a permittee remains in possession of Indian land after the 
expiration or cancellation of a permit, we will treat the unauthorized 
use as a trespass. Unless we have reason to believe that the permittee 
is engaged in negotiations with the Indian landowners to obtain a new 
permit, we will take action to recover possession of the Indian land on 
behalf of the Indian landowners, and pursue any additional remedies 
available under applicable law, including

[[Page 490]]

the assessment of civil penalties and costs under subpart I of this 
part.



                           Subpart I_Trespass



Sec. 166.800  What is trespass?

    Under this part, trespass is any unauthorized occupancy, use of, or 
action on Indian agricultural lands. These provisions also apply to 
Indian agricultural land managed under an agricultural lease or permit 
under part 162 of this title.



Sec. 166.801  What is the BIA's trespass policy?

    We will:
    (a) Investigate accidental, willful, and/or incidental trespass on 
Indian agricultural land;
    (b) Respond to alleged trespass in a prompt, efficient manner;
    (c) Assess trespass penalties for the value of products used or 
removed, cost of damage to the Indian agricultural land, and enforcement 
costs incurred as a consequence of the trespass.
    (d) Ensure that damage to Indian agricultural lands resulting from 
trespass is rehabilitated and stabilized at the expense of the 
trespasser.



Sec. 166.802  Who can enforce this subpart?

    (a) The BIA enforces the provisions of this subpart. If the tribe 
adopts the provisions of this subpart, the tribe will have concurrent 
jurisdiction to enforce this subpart. Additionally, if the tribe so 
requests, we will defer to tribal prosecution of trespass on Indian 
agricultural lands.
    (b) Nothing in this subpart shall be construed to diminish the 
sovereign authority of Indian tribes with respect to trespass.

                              Notification



Sec. 166.803  How are trespassers notified of a trespass determination?

    (a) Unless otherwise provided under tribal law, when we have reason 
to believe that a trespass on Indian agricultural land has occurred, 
within five business days, we or the authorized tribal representative 
will provide written notice to the alleged trespasser, the possessor of 
trespass property, any known lien holder, and beneficial Indian 
landowner, as appropriate. The written notice will include the 
following:
    (1) The basis for the trespass determination;
    (2) A legal description of where the trespass occurred;
    (3) A verification of ownership of unauthorized property (e.g., 
brands in the State Brand Book for cases of livestock trespass, if 
applicable);
    (4) Corrective actions that must be taken;
    (5) Time frames for taking the corrective actions;
    (6) Potential consequences and penalties for failure to take 
corrective action; and
    (7) A statement that unauthorized livestock or other property may 
not be removed or disposed of unless authorized by us.
    (b) If we determine that the alleged trespasser or possessor of 
trespass property is unknown or refuses delivery of the written notice, 
a public trespass notice will be posted at the tribal community 
building, U.S. Post Office, and published in the local newspaper nearest 
to the Indian agricultural lands where the trespass is occurring.
    (c) Trespass notices under this subpart are not subject to appeal 
under 25 CFR part 2.



Sec. 166.804  What can I do if I receive a trespass notice?

    If you receive a trespass notice, you will within the time frame 
specified in the notice:
    (a) Comply with the ordered corrective actions; or
    (b) Contact us in writing to explain why the trespass notice is in 
error. You may contact us by telephone but any explanation of trespass 
you wish to provide must be in writing. If we determine that we issued 
the trespass notice in error, we will withdraw the notice.



Sec. 166.805  How long will a written trespass notice remain in effect?

    A written trespass notice will remain in effect for the same conduct 
identified in that written notice for a period of one year from the date 
of receipt of the written notice by the trespasser.

[[Page 491]]

                                 Actions



Sec. 166.806  What actions does the BIA take against trespassers?

    If the trespasser fails to take the corrective action specified by 
us, we may take one or more of the following actions, as appropriate:
    (a) Seize, impound, sell or dispose of unauthorized livestock or 
other property involved in the trespass. We may keep such property we 
seize for use as evidence.
    (b) Assess penalties, damages, and costs, under Sec. 166.812 of 
this subpart.



Sec. 166.807  When will we impound unauthorized livestock or other 
property?

    We will impound unauthorized livestock or other property under the 
following conditions:
    (a) Where there is imminent danger of severe injury to growing or 
harvestable crop or destruction of the range forage.
    (b) When the known owner or the owner's representative of the 
unauthorized livestock or other property refuses to accept delivery of a 
written notice of trespass and the unauthorized livestock or other 
property are not removed within the period prescribed in the written 
notice.
    (c) Any time after five days of providing notice of impoundment if 
you failed to correct the trespass.



Sec. 166.808  How are trespassers notified if their unauthorized 
livestock or other property are to be impounded?

    (a) If the trespass is not corrected in the time specified in the 
initial trespass notice, we will send written notice of our intent to 
impound unauthorized livestock or other property to the unauthorized 
livestock or property owner or representative, and any known lien holder 
of the unauthorized livestock or other property.
    (b) If we determine that the owner of the unauthorized livestock or 
other property or the owner's representative is unknown or refuses 
delivery of the written notice, we will post a public notice of intent 
to impound at the tribal community building, U.S. Post Office, and 
published in the local newspaper nearest to the Indian agricultural 
lands where the trespass is occurring.
    (c) After we have given notice as described above, we will impound 
unauthorized livestock or other property without any further notice.



Sec. 166.809  What happens after my unauthorized livestock or other 
property are impounded?

    Following the impoundment of unauthorized livestock or other 
property, we will provide notice that we will sell the impounded 
property as follows:
    (a) We will provide written notice of the sale to the owner, the 
owner's representative, and any known lien holder. The written notice 
must include the procedure by which the impounded property may be 
redeemed prior to the sale.
    (b) We will provide public notice of sale of impounded property by 
posting at the tribal community building, U.S. Post Office, and 
publishing in the local newspaper nearest to the Indian agricultural 
lands where the trespass is occurring. The public notice will include a 
description of the impounded property, and the date, time, and place of 
the public sale. The sale date must be at least five days after the 
publication and posting of notice.



Sec. 166.810  How do I redeem my impounded livestock or other property?

    You may redeem impounded livestock or other property by submitting 
proof of ownership and paying all penalties, damages, and costs under 
Sec. 166.812 of this subpart and completing all corrective actions 
identified by us under Sec. 166.804 of this subpart.



Sec. 166.811  How will the sale of impounded livestock or other property 
be conducted?

    (a) Unless the owner or known lien holder of the impounded livestock 
or other property redeems the property prior to the time set by the 
sale, by submitting proof of ownership and settling all obligations 
under Sec. 166.804 and Sec. 166.812 of this subpart, the property will 
be sold by public sale to the highest bidder.
    (b) If a satisfactory bid is not received, the livestock or property 
may be re-offered for sale, returned to the

[[Page 492]]

owner, condemned and destroyed, or otherwise disposed of.
    (c) We will give the purchaser a bill of sale or other written 
receipt evidencing the sale.

                      Penalties, Damages, and Costs



Sec. 166.812  What are the penalties, damages, and costs payable by 
trespassers on Indian agricultural land?

    Trespassers on Indian agricultural land must pay the following 
penalties and costs:
    (a) Collection of the value of the products illegally used or 
removed plus a penalty of double their values;
    (b) Costs associated with any damage to Indian agricultural land 
and/or property;
    (c) The costs associated with enforcement of the regulations, 
including field examination and survey, damage appraisal, investigation 
assistance and reports, witness expenses, demand letters, court costs, 
and attorney fees;
    (d) Expenses incurred in gathering, impounding, caring for, and 
disposal of livestock in cases which necessitate impoundment under Sec. 
166.807 of this subpart; and
    (e) All other penalties authorized by law.



Sec. 166.813  How will the BIA determine the value of forage or crops 
consumed or destroyed?

    We will determine the value of forage or crops consumed or destroyed 
based upon the average rate received per month for comparable property 
or grazing privileges, or the estimated commercial value or replacement 
costs of such products or property.



Sec. 166.814  How will the BIA determine the value of the products or 
property illegally used or removed?

    We will determine the value of the products or property illegally 
used or removed based upon a valuation of similar products or property.



Sec. 166.815  How will the BIA determine the amount of damages to 
Indian agricultural land?

    We will determine the damages by considering the costs of 
rehabilitation and revegetation, loss of future revenue, loss of 
profits, loss of productivity, loss of market value, damage to other 
resources, and other factors.



Sec. 166.816  How will the BIA determine the costs associated with 
enforcement of the trespass?

    Costs of enforcement may include detection and all actions taken by 
us through prosecution and collection of damages. This includes field 
examination and survey, damage appraisal, investigation assistance and 
report preparation, witness expenses, demand letters, court costs, 
attorney fees, and other costs.



Sec. 166.817  What happens if I do not pay the assessed penalties, 
damages and costs?

    Unless otherwise provided by applicable tribal law:
    (a) We will refuse to issue you a permit for use, development, or 
occupancy of Indian agricultural lands; and
    (b) We will forward your case for appropriate legal action.



Sec. 166.818  How are the proceeds from trespass distributed?

    Unless otherwise provided by tribal law:
    (a) We will treat any amounts recovered under Sec. 166.812 of this 
subpart as proceeds from the sale of agricultural property from the 
Indian agricultural land upon which the trespass occurred.
    (b) Proceeds recovered under Sec. 166.812 of this subpart may be 
distributed to:
    (1) Repair damages of the Indian agricultural land and property;
    (2) Reimburse the affected parties, including the permittee for loss 
due to the trespass, as negotiated and provided in the permit; and
    (3) Reimburse for costs associated with the enforcement of this 
subpart.
    (c) If any money is left over after the distribution of the proceeds 
described in paragraph (b) of this section, we will return it to the 
trespasser or, where we cannot identify the owner of the impounded 
property within 180 days, we will deposit the net proceeds of the sale 
into the accounts of the landowners where the trespass occurred.

[[Page 493]]



Sec. 166.819  What happens if the BIA does not collect enough money 
to satisfy the penalty?

    We will send written notice to the trespasser demanding immediate 
settlement and advising the trespasser that unless settlement is 
received within five business days from the date of receipt, we will 
forward the case for appropriate legal action. We may send a copy of the 
notice to the Indian landowner, permittee, and any known lien holders.



Subpart J_Agriculture Education, Education Assistance, Recruitment, and 
                                Training



Sec. 166.900  How are the Indian agriculture education programs operated?

    (a) The purpose of the Indian agriculture education programs is to 
recruit and develop promising Indian and Alaska Natives who are enrolled 
in secondary schools, tribal or Alaska Native community colleges, and 
other post-secondary schools for employment as professional resource 
managers and other agriculture-related professionals by approved 
organizations.
    (b) We will operate the student educational employment program as 
part of our Indian agriculture education programs in accordance with the 
provisions of 5 CFR 213.3202(a) and (b).
    (c) We will establish an education committee to coordinate and carry 
out the agriculture education assistance programs and to select 
participants for all agriculture education assistance programs. The 
committee will include at least one Indian professional educator in the 
field of natural resources or agriculture, a personnel specialist, a 
representative of the Intertribal Agriculture Council, and a natural 
resources or agriculture professional from the BIA and a representative 
from American Indian Higher Education Consortium. The committee's duties 
will include the writing of a manual for the Indian and Alaska Native 
Agriculture Education and Assistance Programs.
    (d) We will monitor and evaluate the agriculture education 
assistance programs to ensure that there are adequate Indian and Alaska 
Native natural resources and agriculture-related professionals to manage 
Indian natural resources and agriculture programs by or for tribes and 
Alaska Native Corporations. We will identify the number of participants 
in the intern, student educational employment program, scholarship, and 
outreach programs; the number of participants who completed the 
requirements to become a natural resources or agriculture-related 
professional; and the number of participants completing advanced degree 
requirements.



Sec. 166.901  How will the BIA select an agriculture intern?

    (a) The purpose of the agriculture intern program is to ensure the 
future participation of trained, professional Indians and Alaska Natives 
in the management of Indian and Alaska Native agricultural land. In 
keeping with this purpose, we will work with tribes and Alaska Natives:
    (1) To obtain the maximum degree of participation from Indians and 
Alaska Natives in the agriculture intern program;
    (2) To encourage agriculture interns to complete an undergraduate 
degree program in natural resources or agriculture-related field; and
    (3) To create an opportunity for the advancement of natural 
resources and agriculture-related technicians to professional resource 
management positions with the BIA, other federal agencies providing an 
agriculture service to their respective tribe, a tribe, or tribal 
agriculture enterprise.
    (b) Subject to restrictions imposed by agency budgets, we will 
establish and maintain in the BIA at least 20 positions for the 
agriculture intern program. All Indians and Alaska Natives who satisfy 
the qualification criteria may compete for positions.
    (c) Applicants for intern positions must meet the following 
criteria:
    (1) Be eligible for Indian preference as defined in 25 CFR part 5;
    (2) Possess a high school diploma or its recognized equivalent;
    (3) Be able to successfully complete the intern program within a 
three-year period; and
    (4) Possess a letter of acceptance to an accredited post-secondary 
school or

[[Page 494]]

demonstrate that one will be sent within 90 days.
    (d) We will advertise vacancies for agriculture intern positions 
semi-annually, no later than the first day of April and October, to 
accommodate entry into school.
    (e) In selecting agriculture interns, we will seek to identify 
candidates who:
    (1) Have the greatest potential for success in the program;
    (2) Will take the shortest time period to complete the intern 
program; and
    (3) Provide the letter of acceptance required by paragraph (c)(4) of 
this section.
    (f) Agriculture interns must:
    (1) Maintain full-time status in an agriculture-related curriculum 
at an accredited post-secondary school;
    (2) Maintain good academic standing;
    (3) Enter into an obligated service agreement to serve as a 
professional resource manager or agriculture-related professional with 
an approved organization for one year in exchange for each year in the 
program; and
    (4) Report for service with the approved organization during any 
break in attendance at school of more than three weeks.
    (g) The education committee will evaluate annually the performance 
of the agriculture intern program participants against requirements to 
ensure that they are satisfactorily progressing toward completion of 
program requirements.
    (h) We will pay all costs for tuition, books, fees, and living 
expenses incurred by an agriculture intern while attending an accredited 
post-secondary school.



Sec. 166.902  How can I become an agriculture educational employment 
student?

    (a) To be considered for selection, applicants for the student 
educational employment program must:
    (1) Meet the eligibility requirements in 5 CFR part 308; and
    (2) Be accepted into or enrolled in a course of study at an 
accredited post-secondary institution which grants degrees in natural 
resources or agriculture-related curricula.
    (b) Student educational employment steering committees established 
at the field level will select program participants based on eligibility 
requirements without regard to applicants' financial needs.
    (c) A recipient of assistance under the student educational 
employment program will be required to enter into an obligated service 
agreement to serve as a natural resources or agriculture-related 
professional with an approved organization for one year in exchange for 
each year in the program.
    (d) We will 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 the cooperative education 
program.



Sec. 166.903  How can I get an agriculture scholarship?

    (a) We may grant agriculture scholarships to Indians and Alaska 
Natives enrolled as full-time students in accredited post-secondary and 
graduate programs of study in natural resources and agriculture-related 
curricula.
    (b) The education committee established in Sec. 166.900(c) of this 
subpart will select program participants based on eligibility 
requirements stipulated in paragraphs (e) through (g) of this section 
without regard to applicants' financial needs or past scholastic 
achievements.
    (c) Recipients of scholarships must reapply annually to continue to 
receive funding beyond the initial award period. Students who have 
received scholarships in past years, are in good academic standing, and 
have been recommended for continuation by their academic institution 
will be given priority over new applicants for scholarship assistance.
    (d) The amount of scholarship funds an individual is awarded each 
year will be contingent upon the availability of funds appropriated each 
fiscal year and is subject to yearly change.
    (e) Preparatory scholarships may be available for a maximum of three 
academic years of general, undergraduate course work leading to a degree 
in natural resources or agriculture-related curricula and may be awarded 
to individuals who:

[[Page 495]]

    (1) Possess a high school diploma or its recognized equivalent; and
    (2) Are enrolled and in good academic standing at an acceptable 
post-secondary school.
    (f) Undergraduate scholarships are available for a maximum of three 
academic years and may be awarded to individuals who:
    (1) Have completed a minimum of 55 semester hours toward a 
bachelor's degree in a natural resources or agriculture-related 
curriculum; and
    (2) Have been accepted into a natural resource or agriculture-
related degree-granting program at an accredited college or university.
    (g) Graduate scholarships are available for a maximum of five 
academic years for individuals selected into the graduate program of an 
accredited college or university that grants advanced degrees in natural 
resources or agriculture-related fields.
    (h) A recipient of assistance under the scholarship program must 
enter into an obligated service agreement to serve as a natural 
resources or agriculture-related professional with the BIA, other 
federal agency providing assistance to their respective tribe, a tribe, 
tribal agriculture enterprise, or an ANCSA Corporation for one year for 
each year in the program.
    (i) We will pay all scholarships approved by the education committee 
established in Sec. 166.900 of this subpart for which funding is 
available.



Sec. 166.904  What is agriculture education outreach?

    (a) We will establish and maintain an agriculture education outreach 
program for Indian and Alaska Native youth that will:
    (1) Encourage students to acquire academic skills needed to succeed 
in post-secondary mathematics and science courses;
    (2) Promote agriculture career awareness;
    (3) Involve students in projects and activities oriented to 
agriculture related professions early so students realize the need to 
complete required pre-college courses; and
    (4) Integrate Indian and Alaska Native agriculture program 
activities into the education of Indian and Alaska Native students.
    (b) We will develop and carry out the program in consultation with 
appropriate community education organizations, tribes, ANCSA 
Corporations, Alaska Native organizations, and other federal agencies 
providing agriculture services to Indians.
    (c) The education committee established under Sec. 166.900(c) of 
this subpart will coordinate and implement the program nationally.



Sec. 166.905  Who can get assistance for postgraduate studies?

    (a) The purpose of the postgraduate studies program is to enhance 
the professional and technical knowledge of Indian and Alaska Native 
natural resource and agriculture-related professionals working for an 
approved organization so that the best possible service is provided to 
Indian and Alaska Natives.
    (b) We may pay the cost of tuition, fees, books, and salary of 
Alaska Natives and Indians who are employed by an approved organization 
and who wish to pursue advanced levels of education in natural resource 
or agriculture-related fields.
    (c) The goal of the advanced study program is to encourage 
participants to obtain additional academic credentials such as a degree 
or diploma in a natural resources or agriculture-related field. 
Requirements of the postgraduate study program are:
    (1) The duration of course work cannot be less than one semester or 
more than three years; and
    (2) Students in the postgraduate studies program must meet 
performance standards as required by the graduate school offering the 
study program.
    (d) Program applicants must submit application packages to the 
education committee. At a minimum, such packages must contain a resume 
and an endorsement signed by the applicant's supervisor clearly stating 
the need for and benefits of the desired training.
    (e) The education committee must use the following criteria to 
select participants:
    (1) Need for the expertise sought at both the local and national 
levels;

[[Page 496]]

    (2) Expected benefits, both locally and nationally; and
    (3) Years of experience and the service record of the employee.
    (f) Program participants will enter into an obligated service 
agreement to serve as a natural resources or agriculture-related 
professional with an approved organization for one year for each year in 
the program. We may reduce the obligated service requirement if the 
employee receives supplemental funding such as research grants, 
scholarships, or graduate stipends and, as a result, reduces the need 
for financial assistance under this part. If the obligated service 
agreement is breached, we will collect the amount owed us in accordance 
with Sec. 166.910 of this subpart.



Sec. 166.906  What can happen if we recruit you after graduation?

    (a) The purpose of the post graduation recruitment program is to 
recruit Indian and Alaska Native natural resource and trained 
agriculture technicians into the agriculture programs of approved 
organizations.
    (b) We may assume outstanding student loans from established lending 
institutions of Indian and Alaska Native natural resources and 
agriculture technicians who have successfully completed a post-secondary 
natural resources or agriculture-related curriculum at an accredited 
institution.
    (c) Indian and Alaska Natives receiving benefits under this program 
will enter into an obligated service agreement in accordance with Sec. 
166.901 of this subpart. Obligated service required under this program 
will be one year for every $5,000 of student loan debt repaid.
    (d) If the obligated service agreement is breached, we will collect 
student loan(s) in accordance with Sec. 166.910 of this subpart.



Sec. 166.907  Who can be an intern?

    (a) Natural resources or agriculture personnel working for an 
approved organization may apply for an internship within agriculture-
related programs of agencies of the Department of the Interior or other 
federal agencies providing an agriculture service to their respective 
reservations.
    (b) Natural resources or agriculture-related personnel from other 
Department of the Interior agencies may apply through proper channels 
for ``internships'' within the BIA's agriculture programs. With the 
consent of a tribe or Alaska Native organization, the BIA can arrange 
for an Intergovernmental Personnel Act assignment in tribal or Alaska 
Native agriculture programs.
    (c) Natural resources and agriculture 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 BIA and, with the consent of a tribe or Alaska Native 
organization, we can facilitate an Intergovernmental Personnel Act 
assignment in a tribe, tribal agriculture enterprise, or Alaska Native 
Corporation.
    (d) Natural resources or agriculture personnel from a tribe, tribal 
agriculture enterprise, or Alaska Native Corporation may apply, through 
proper channels and pursuant to a cooperative agreement, for an 
internship within another tribe, tribal forest enterprise, or ANCSA 
Corporation agriculture program.
    (e) The employing agency of participating federal employees will 
provide for the continuation of salary and benefits.
    (f) The host agency for participating tribal, tribal agriculture 
enterprise, or Alaska Native Corporation agriculture employees will 
provide for salaries and benefits.
    (g) A bonus pay incentive, up to 25 percent (%) of the intern's base 
salary, may be provided to intergovernmental interns at the conclusion 
of the internship period. Bonus pay incentives will be at the discretion 
of and funded by the host organization and must 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.



Sec. 166.908  Who can participate in continuing education and training?

    (a) The purpose of continuing education and training is to establish 
a program to provide for the ongoing

[[Page 497]]

education and training of natural resources and agriculture personnel 
employed by approved organizations. This program will emphasize 
continuing education and training in three areas:
    (1) Orientation training including tribal-federal relations and 
responsibilities;
    (2) Technical agriculture education; and
    (3) Developmental training in agriculture-based enterprises and 
marketing.
    (b) We will maintain an orientation program to increase awareness 
and understanding of Indian culture and its effect on natural resources 
management and agriculture practices and on federal laws that effect 
natural resources management and agriculture operations and 
administration in the Indian agriculture program.
    (c) We will maintain a continuing technical natural resources and 
agriculture education program to assist natural resources managers and 
agriculture-related professionals to perform natural resources and 
agriculture management on Indian land.
    (d) We will maintain an agriculture land-based enterprise and 
marketing training program to assist with the development and use of 
Indian and Alaska Native agriculture resources.



Sec. 166.909  What are my obligations to the BIA after I participate 
in an agriculture education program?

    (a) Individuals completing agriculture education programs with an 
obligated service requirement may be offered full time permanent 
employment with an approved organization to fulfill their obligated 
service within 90 days of the date all program education requirements 
have been completed. If employment is not offered within the 90-day 
period, the student will be relieved of obligated service requirements. 
Not less than 30 days before the start of employment, the employer must 
notify the participant of the work assignment, its location and the date 
work must begin. If the employer is other than the BIA, the employer 
must also notify us.
    (b) Employment time that can be credited toward obligated service 
requirement will begin the day after all program education requirements 
have been completed, with the exception of the agriculture intern 
program which includes the special provisions outlined in Sec. 
166.901(f)(4) of this subpart. The minimum service obligation period 
will be one year of full time employment.
    (c) The employer has the right to designate the location of 
employment for fulfilling the service obligation.
    (d) A participant in any of the agriculture education programs with 
an obligated service requirement may, within 30 days of completing all 
program education requirements, request a deferment of obligated service 
to pursue postgraduate or post-doctoral studies. In such cases, we will 
issue a decision within 30 days of receipt of the request for deferral. 
We may grant such a request; however, deferments granted in no way waive 
or otherwise affect obligated service requirements.
    (e) A participant in any of the agriculture education programs with 
an obligated service requirement may, within 30 days of completing all 
program education requirements, request a waiver of obligated service 
based on personal or family hardship. We may grant a full or partial 
waiver or deny the request for wavier. In such cases, we will issue a 
decision within 30 days of receiving the request for waiver.



Sec. 166.910  What happens if I do not fulfill my obligation to the BIA?

    (a) Any individual who accepts financial support under agriculture 
education programs with an obligated service requirement, and who does 
not accept employment or unreasonably terminates employment must repay 
us in accordance with the following table:

------------------------------------------------------------------------
                               Then the costs that   And then the costs
        If you are...            you must repay     that you do not need
                                     are...            to repay are...
------------------------------------------------------------------------
(1) Agriculture intern......  Living allowance,     Salary paid during
                               tuition, books, and   school breaks or
                               fees received while   when recipient was
                               occupying position    employed by an
                               plus interest.        approved
                                                     organization.
(2) Cooperative education...  Tuition, books, and
                               fees plus interest.
(3) Scholarship.............  Costs of scholarship
                               plus interest.

[[Page 498]]

 
(4)Post graduation            All student loans
 recruitment.                  assumed by us under
                               the program plus
                               interest.
(5) Postgraduate studies....  Living allowance,     Salary paid during
                               tuition, books, and   school breaks or
                               fees received while   when recipient was
                               in the program plus   employed by an
                               interest.             approved
                                                     organization.
------------------------------------------------------------------------

    (b) For agriculture education programs with an obligated service 
requirement, we will adjust the amount required for repayment by 
crediting toward the final amount of debt any obligated service 
performed before breach of contract.



                            Subpart K_Records



Sec. 166.1000  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. 166.1001  How must a records associated with this part be preserved?

    (a) Any organization, including tribes and tribal organizations, 
that have records identified in Sec. 166.1000(a) of this part 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. 166.1000(b) of this part 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.



PART 167_NAVAJO GRAZING REGULATIONS--Table of Contents




Sec.
167.1 Authority.
167.2 General regulations.
167.3 Objectives.
167.4 Regulations; scope; exceptions.
167.5 Land management districts.
167.6 Carrying capacities.
167.7 Records.
167.8 Grazing rights.
167.9 Grazing permits.
167.10 Special grazing permits.
167.11 Tenure of grazing permits.
167.12 Grazing fees.
167.13 Trespass.
167.14 Movement of livestock.
167.15 Control of livestock disease and introduction of livestock.
167.16 Fences.
167.17 Construction near permanent livestock water developments.

    Authority: R.S. 465, 2117, as amended, sec. 3, 26 Stat. 795, sec. 1, 
28 Stat. 305, as amended; 25 U.S.C. 9, 179, 397, 345, 402.

    Source: 22 FR 10578, Dec. 24, 1957, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 167.1  Authority.

    It is within the authority of the Secretary of the Interior to 
protect Indian tribal lands against waste. Subject to regulations of 
this part, the right exists for Indian tribes to authorize the granting 
of permits upon their tribal

[[Page 499]]

lands and to prescribe by appropriate tribal action the conditions under 
which their lands may be used.



Sec. 167.2  General regulations.

    Part 166 of this subchapter authorizes the Commissioner of Indian 
Affairs to regulate the grazing of livestock on Indian lands under 
conditions set forth therein. In accordance with this authority and that 
of the Navajo Tribal Council, the Central Grazing Committee and the 
District Grazing Committees, the grazing of livestock on the Navajo 
Reservation shall be governed by the regulations in this part.



Sec. 167.3  Objectives.

    It is the purpose of the regulations in this part to aid the Navajo 
Indians in achievement of the following objectives:
    (a) The preservation of the forage, the land, and the water 
resources on the Navajo Reservation, and the building up of those 
resources where they have deteriorated.
    (b) The protection of the interests of the Navajo Indians from the 
encroachment of unduly aggressive and anti-social individuals who may or 
may not be members of the Navajo Tribe.
    (c) The adjustment of livestock numbers to the carrying capacity of 
the range in such a manner that the livestock economy of the Navajo 
Tribe will be preserved.
    (d) To secure increasing responsibility and participation of the 
Navajo people, including tribal participation in all basic policy 
decisions, in the sound management of one of the Tribe's greatest 
assets, its grazing lands, and to foster a better relationship and a 
clearer understanding between the Navajo people and the Federal 
Government in carrying out the grazing regulations.
    (e) The improvement of livestock through proper breeding practices 
and the maintenance of a sound culling policy. Buck and bull pastures 
may be established and maintained either on or off the reservation 
through District Grazing Committee and Central Grazing Committee action.



Sec. 167.4  Regulations; scope; exceptions.

    The grazing regulations in this part apply to all lands within the 
boundaries of the Navajo Reservation held in trust by the United States 
for the Navajo Tribe and all the trust lands hereafter added to the 
Navajo Reservation. The regulations in this part do not apply to any of 
the area described in the Executive order of December 16, 1882, to 
individually owned allotted lands within the Navajo Reservation nor to 
tribal purchases, allotted or privately owned Navajo Indian lands 
outside the exterior boundaries of the Navajo Reservation.

[34 FR 14599, Sept. 19, 1969. Redesignated at 47 FR 13327, Mar. 30, 
1982]



Sec. 167.5  Land management districts.

    The Commissioner of Indian Affairs has established and will retain 
the present land management districts within the Navajo Indian 
Reservation, based on the social and economic requirements of the Navajo 
Indians and the necessity of rehabilitating the grazing lands. District 
boundary changes may be made when deemed necessary and advisable by the 
District Grazing Committees, Central Grazing Committee and Tribal 
Council, with approval by the Superintendent, Area Director, and the 
Commissioner of Indian Affairs.



Sec. 167.6  Carrying capacities.

    (a) The Commissioner of Indian Affairs on June 26, 1943, promulgated 
the authorized carrying capacity for each land management district of 
the Navajo Reservation.
    (b) Recommended adjustments in carrying capacities shall be referred 
by the Superintendent to District Grazing Committee, Central Grazing 
Committee, and the Navajo Tribal Council for review and recommendations 
prior to presentation to the Area Director and the Commissioner of 
Indian Affairs for approval.
    (c) Upon the request of the District Grazing Committee, Central 
Grazing Committee and Navajo Tribal Council to the Superintendent; 
recommendations for future adjustments to the established carrying 
capacities shall be made by Range Technicians based on

[[Page 500]]

the best information available through annual utilization studies and 
range condition studies analyzed along with numbers of livestock and 
precipitation data. The recommendations of the Range Technicians shall 
be submitted to the Superintendent, the Area Director and the 
Commissioner of Indian Affairs.
    (d) Carrying capacities shall be stated in terms of sheep units 
yearlong, in the ratio of horses, mules, and burros 1 to 5; cattle 1 to 
4; goats 1 to 1. The latter figure in each case denotes sheep units. 
Sheep, goats, cattle, horses, mules, and burros one year of age or older 
shall be counted against the carrying capacity.



Sec. 167.7  Records.

    The District Grazing Committee, the Superintendent, and his 
authorized representatives shall keep accurate rec ords of all grazing 
permits and ownership of all livestock. Master files shall be maintained 
by the Superintendent or his authorized representatives.
    (a) The District Grazing Committee shall be responsibile for and 
assist in organizing the sheep and goat dipping and horse and cattle 
branding program and obtaining the annual live- stock count.
    (b) In order to obtain true records of ownership the permittee shall 
personally appear at the dipping vat or tallying point designated by the 
Grazing Committee with his or her sheep and goats and at branding and 
tallying points for cattle and horses. Should the permittee be unable to 
appear personally he or she shall designate a representative to act for 
and in his or her behalf. The sheep and goats will be dipped and the 
cattle and horses will be branded and recorded in the name of the 
permittee.
    (c) The Superintendent shall prepare and keep current a register 
containing the names of all permittees using the range, the number of 
each class of stock by age classes grazed annually and the periods 
during which grazing shall be permitted in each part thereof. An annual 
stock census will be taken to insure that the carrying capacity is not 
exceeded. All classes of livestock twelve months of age or over will be 
counted against range use and permitted number, except that yearling 
colts will not be counted against permitted numbers on all permits with 
less than six horses. (Cross Reference Sec. 167.9.)



Sec. 167.8  Grazing rights.

    (a) The Superintendent shall determine grazing rights of bona fide 
live-stock owners based on recommendations of District Grazing 
Committees. Grazing rights shall be recognized for those permittees 
having ownership records as established in accordance with Sec. 167.7 
or who have acquired grazing rights by marriage, inheritance, purchase 
or division of permits. Whenever the permitted number of sheep units 
within a district is less than the carrying capacity, new permits to the 
carrying capacity limit may be granted as provided in Sec. 167.9.
    (b) All enrolled members of the Navajo Tribe over 18 years of age 
are eligible to acquire and hold grazing permits. Minors under 18 years 
of age can get possession of grazing permits only through inheritance or 
gift, and in each case Trustees must be appointed by the Tribal Courts 
to manage the permits and livestock of such minors until they become 18 
years of age and can hold grazing permits in their own right.
    (c) No person can hold a grazing permit in more than one district on 
the Navajo Reservation.
    (d) Determination of rights to grazing permits involved in cases of 
divorce, separation, threatened family disruption, and permits of 
deceased permittees shall be the responsibility of the Navajo Court of 
Indian Offenses under existing laws, rules, and regulations.



Sec. 167.9  Grazing permits.

    (a) All livestock grazed on the Navajo Reservation must be covered 
by an authorized grazing permit issued by the Superintendent based upon 
the recommendations of the District Grazing Committee. All such grazing 
permits will be automatically renewed annually until terminated. 
District Grazing Committees shall act on all grazing permit changes 
resulting from negotiability within their respective Districts.

[[Page 501]]

The number of livestock that may be grazed under each permit shall be 
the number originally permitted plus or minus any changes as indicated 
by Transfer Agreements and Court Judgment Orders.
    (b) Any permittee who has five or more horses on his current permit 
will be required to apply any acquired sheep units in classes of stock 
other than horses. If the purchaser wishes more than his present number 
of horses, he must have his needs evaluated by the District Grazing 
Committee. Yearling colts will be counted against permitted number on 
all permits with six or more horses. Yearling colts will not be counted 
against permitted number on all permits with less than six horses. In 
hardship cases the District Grazing Committee may reissue horses removed 
from grazing permits through negotiability to permit holders who are 
without sufficient horses on their present permits to meet minimum 
needs.
    (c) No permittee shall be authorized to graze more than ten head of 
horses or to accumulate a total of over 350 sheep units.
    (d) Upon recommendation of the District Grazing Committee and with 
the approval of the Superintendent, grazing permits may be transferred 
from one permittee to another in accordance with instructions provided 
by the Advisory Committee of the Navajo Tribal Council, or may be 
inherited; provided that the permitted holdings of any individual 
permittee shall not exceed 350 sheep units or the equivalent thereof. 
Should inheritance or other acquisition of permits increase the holdings 
of any permittee to more than 350 sheep units, said permittee shall 
dispose of all livestock in excess of 350 sheep units not later than 
November 15 following date of inheritance or other acquisition, and that 
portion of his or her permit in excess of 350 sheep units within one 
year from date of inheritance.
    (e) By request of a permittee to sublet all or a part of his or her 
regular grazing permit to a member of his family or to any person who 
would receive such permit by inheritance, such subletting of permits may 
be authorized by the District Grazing Committee and the Superintendent 
or his authorized representative.



Sec. 167.10  Special grazing permits.

    The problem of special grazing permits shall be settled by the 
Bureau of Indian Affairs working in cooperation with the Tribal Council, 
or any Committee designated by it, with a view to terminating these 
permits at a suitable date and with the least hardship to the Indians 
concerned.



Sec. 167.11  Tenure of grazing permits.

    (a) All active regular grazing permits shall be for one year and 
shall be automatically renewed annually until terminated. Any Navajo 
eligible to hold a grazing permit as defined in Sec. 167.8 may become a 
livestock operator by obtaining an active grazing permit through 
negotiability or inheritance or both.
    (b) In many Districts, and portions of all districts, unused grazing 
permits or portions of grazing permits are beneficial in aiding range 
recovery. Each District Grazing Committee will handle each matter of 
unused grazing permit or portions of grazing permits on individual 
merits. Where ample forage is available operators will be encouraged to 
fill their permits with livestock or dispose of their unused permits 
through negotiability. In those areas where forage is in need of 
rehabilitation permittees will not be encouraged to stock to their 
permitted numbers until the range has sufficiently recovered to justify 
the grazing of additional livestock.



Sec. 167.12  Grazing fees.

    Grazing fees shall not be charged at this time.\1\
---------------------------------------------------------------------------

    \1\ Grazing Committees were organized in May 1953. These committees 
have not had ample time to fully acquaint themselves or the stockmen in 
their respective districts with all of the various items of range 
administration and range management. Also the drought of several years 
has not broken. The Navajo Tribe therefore requests that the matter of 
establishing regulations regarding the adoption of grazing fees be 
deferred until such a time as a full understanding of the advantages of 
fees can be had by the majority of the stockmen in all Districts. The 
assessment of grazing fees will not aid materially in obtaining proper 
range use. At this time it is more important that other sections of 
these grazing regulations be adopted and enforced. Resolution of Navajo 
Tribal Council No. CJ-22-54 of June 9, 1954.

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

[[Page 502]]



Sec. 167.13  Trespass.

    The owner of any livestock grazing in trespass in Navajo Tribal 
ranges shall be subject to action by the Navajo Court of Indian Offenses 
as provided in part 11 of this chapter, however, upon recommendations of 
the District Grazing Committee, first offenses may be referred to the 
Central Grazing Committee and the Superintendent or his authorized 
representative for proper settlement out of court. The following acts 
are considered as trespass:
    (a) Any person who sells an entire permit must dispose of all his 
livestock or be in trespass. Any person selling a portion of his permit 
must not run more stock than covered by his remaining permit, or be 
subject to immediate trespass.
    (b) All persons running livestock in excess of their permitted 
number must by April 25, 1959, either obtain permits to cover their 
total livestock numbers or reduce to their permitted number, or be in 
trespass. Additional time may be granted in unusual individual cases as 
determined and approved by the District Grazing Committee, General 
Grazing Committee, and the Superintendent or his authorized 
representative.
    (c) Failure to comply with the provisions in Sec. 167.9, shall be 
considered as trespass.
    (d) Any person who willfully allows his livestock to drift from one 
district to another shall be subject to trespass action. The grazing of 
livestock in customary use areas extending over District Boundary lines, 
when such customary use areas are defined and agreed upon by the 
District Grazing Committees involved, shall not be considered as willful 
trespass.
    (e) The owner of any livestock who violates the customary or 
established use units of other permittees shall be subject to trespass 
action.

[22 FR 10578, Dec. 24, 1957, as amended at 24 FR 1178, Feb. 17, 1959. 
Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 167.14  Movement of livestock.

    Annually, prior to the normal lamb buying season, the Central 
Grazing Committee after consultation with District Grazing Committees 
shall issue regulations covering the buying period and the procedures 
and methods to be used in moving livestock to market. All movements of 
livestock other than trucking from buying areas to loading or shipping 
points must be authorized by Trailing Permits issued by the District 
Grazing Committees on the approved forms. Failure to comply with this 
section and with annual lamb buying regulations will be considered as 
trespass.



Sec. 167.15  Control of livestock disease and introduction of livestock.

    (a) The District Grazing Committees with the approval of the 
Superintendent shall require livestock to be dipped, vaccinated, 
inspected and be restricted in movement when necessary to prevent the 
introduction and spread of contagious or infectious disease in the 
economic interest of the Navajo stock owners. Upon the recommendation of 
the District Grazing Committee livestock shall be dipped annually when 
such dipping is necessary to prevent the spread of contagious diseases. 
These annual dippings shall be completed on or before September 1st each 
year. Livestock, however, may be dipped at other times when necessary. 
The Superintendent or his authorized representative and the District 
Grazing Committee may also require the rounding up of cattle, horses, 
mules, etc., in each District for the purpose of inspection for disease, 
vaccinating, branding and other related operations.
    (b) No livestock shall be brought onto the Reservation without a 
permit issued by the Superintendent or his authorized representative 
following inspection, in order to safeguard Indian livestock from 
infections and contagious disease and to insure the introduction of good 
quality sires and breeding stock.
    (c) Any unusual disease conditions beyond the control measures 
provided herein shall be immediately reported by the District Grazing 
Committee to the Chairman of the Navajo Tribal Council and the 
Superintendent who

[[Page 503]]

shall attempt to obtain specialists and provide emergency funds to 
control and suppress the disease.



Sec. 167.16  Fences.

    Favorable recommendation from the District Grazing Committee and a 
written authorization from the Superintendent or his authorized 
representative must be secured before any fences may be constructed in 
non-agricultural areas. The District Grazing Committee shall recommend 
to the Superintendent the removal of unauthorized existing fences, or 
fences enclosing demonstration areas no longer used as such, if it is 
determined that such fences interfere with proper range management or an 
equitable distribution of range privileges. All enclosures fenced for 
the purpose of protecting agricultural land shall be kept to a size 
commensurate with the needs for protection of agricultural land and must 
be enclosed by legal four strand barbed wire fence or the equivalent.



Sec. 167.17  Construction near permanent livestock water developments.

    (a) The District Grazing Committee shall regulate the construction 
of all dwellings, corrals and other structures within one-half mile of 
Government or Navajo Tribal developed permanent livestock waters such as 
springs, wells, and charcos or deep reservoirs.
    (b) A written authorization from the District Grazing Committee must 
be secured before any dwellings, corrals, or other structures may be 
constructed within one-half mile of Government or Navajo Tribal 
developed springs, wells and charcos or deep reservoirs.
    (c) No sewage disposal system shall be authorized to be built which 
will drain into springs or stream channels in such a manner that it 
would cause contamination of waters being used for livestock or human 
consumption.



PART 168_GRAZING REGULATIONS FOR THE HOPI PARTITIONED LANDS AREA
--Table of Contents




Sec.
168.1 Definitions.
168.2 Authority.
168.3 Purpose.
168.4 Establishment of range units.
168.5 Grazing capacity.
168.6 Grazing on range units authorized by permit.
168.7 Kind of livestock.
168.8 Grazing fees.
168.9 Assignment, modification and cancellation of permits.
168.10 Conservation and land use provisions.
168.11 Range improvements; ownership; new construction.
168.12 Special permit requirements and provisions.
168.13 Fences.
168.14 Livestock trespass.
168.15 Control of livestock diseases and parasites.
168.16 Impoundment and disposal of unauthorized livestock.
168.17 Concurrence procedures.
168.18 Appeals.
168.19 Information collection.

    Authority: 5 U.S.C. 301; 25 U.S.C. 2, 640d-8, and 640d-18.

    Source: 47 FR 39817, Sept. 10, 1982, unless otherwise noted.



Sec. 168.1  Definitions.

    As used in this part, terms shall have the meanings set forth in 
this section.
    (a) Secretary means the Secretary of Interior or his designee;
    (b) Area Director means the officer in charge of the Phoenix Bureau 
of Indian Affairs Area Office (or his successor; and/or his authorized 
representative) to whom has been delegated the authority of the 
Assistant Secretary--Indian Affairs to act in all matters pertaining to 
lands partitioned to the Hopi Tribe under its jurisdiction, within the 
boundaries of the former Joint Use Area.
    (c) Superintendent means the Superintendent, Hopi Agency or his 
designee.
    (d) Tribal Government means the Hopi Tribal Council, or its duly 
designated representative.
    (e) Project Officer means the former Special Project Officer of the 
Bureau of Indian Affairs, Administrative Office, Flagstaff, Arizona 
86001, who had been delegated the authority of the Commissioner of 
Indian Affairs to act in matters respecting the former Joint Use Area.
    (f) Former Joint Use Area means the area established by the United 
States District Court for the District of Arizona in the case entitled 
Healing v. Jones, 210 F. Supp. 125 (1962), which is

[[Page 504]]

inside the Executive order area (Executive order of December 16, 1882) 
but outside Land Management District 6 and which was partitioned by the 
judgment of partition dated April 18, 1979.
    (g) Hopi Partition Area means that portion of the Former Joint Use 
Area which has been added to the Hopi Tribe's reservation.
    (h) Range Unit means a tract of range land designated as a 
management unit for administration of grazing.
    (i) Range improvements means fences, stockwater devices, corrals, 
trails and other similar devices or practices which are applied to the 
land to enhance range productivity or usability.
    (j) Permit means a revocable privilege granted in writing limited to 
entering on and utilizing forage by domestic livestock on a specified 
tract of land. The term as used herein shall include written 
authorizations issued to enable the crossing or trailing of domestic 
livestock across specified tracts or range units.
    (k) Interim permit means a permit granted to members of the Navajo 
tribe residing on Hopi Partitioned Lands who meet the qualifications of 
Sec. 168.6(b) in accordance with Pub. L. 93-531 as amended.
    (l) Animal unit (AU) means one adult cow with unweaned calf by her 
side or equivalent thereof based on comparative forage consumption. 
Accepted conversion factors are: sheep and goats, one ewe, doe, buck or 
ram equals 0.25 A.U.; one sheep unit year long (SUYL) equals 0.25 Animal 
Unit year long; horses and mules, one horse, mule, donkey or burro 
equals 1.25 A.U.
    (m) Tribe means the Hopi Tribe including all villages and clans.
    (n) Allocate means to apportion grazing, including the determination 
of who may graze livestock, the number and kind of livestock, and the 
place such livestock will be grazed.
    (o) Person awaiting relocation means a resident of the Hopi 
Partitioned Area who meets each of the following criteria:
    (1) Is listed on the Bureau of Indian Affairs enumeration (as 
defined in (q) below);
    (2) Has a livestock inventory listed with the project Officer (see 
(r) below);
    (3) Is awaiting relocation under the Settlement Act; and
    (4) Was grazing livestock on the date of the entry of the Judgment 
of Partition, April 18, 1979.
    (p) Carrying capacity means the maximum stocking rate possible 
without inducing damage to vegetation or related resources.
    (q) BIA enumeration means the list of persons living on and 
improvements located within the former Joint Use Area obtained by 
interviews by the Project Officer's staff.
    (r) Livestock inventory means the original list as amended 
(developed by the Project Officer in 1976-77) of livestock owned by 
persons having customary grazing use in the former Joint Use Area.
    (s) Settlement Act means the Act of December 22, 1974, 88 Stat. 
1712, as amended.
    (t) Life tenant means a person who has applied for and been granted 
a life estate lease pursuant to section 30 of the Settlement Act, 25 
U.S.C. 640d-28.



Sec. 168.2  Authority.

    It is within the general authority of the Secretary to protect 
Indian trust lands against waste and to prescribe rules and regulations 
under which these lands may be leased or permitted for grazing. Also, 
under the Navajo-Hopi Settlement Act as amended, 25 U.S.C. 640d-8 and 
18, the Secretary is authorized and directed to:
    (a) Reduce livestock grazing within the former Joint Use Area to 
carrying capacity,
    (b) Restore the grazing range potential of the resource to maximum 
grazing extent feasible,
    (c) Survey, monument and fence the partition boundary,
    (d) Protect the rights and property of individuals awaiting 
relocation or authorized to reside on life estates, and
    (e) To administer conservation practices, including grazing control 
and range restoration activities on the Hopi Partitioned Lands.



Sec. 168.3  Purpose.

    These regulations are issued to implement the Secretary's 
responsibilities mandated by the Settlement Act and subsequent U.S. 
District Court

[[Page 505]]

Judgement filed May 4, 1982, in the case, Hopi Tribe v. Watt, Civ. No. 
81-272 PCT-EHC. This portion of the regulations apply only to lands 
partitioned to the Hopi Tribe within the former Joint Use Area.



Sec. 168.4  Establishment of range units.

    The Area Director will use Soil and Range Inventory data to 
establish range units on the Hopi Partitioned Area to provide for a 
surface land management program to restore the land to its full grazing 
potential and maintain that potential to the maximum extent feasible. 
The establishment of range units on Hopi Partitioned Lands is subject to 
the concurrence of the Hopi Tribe in accordance with Sec. 168.17 of 
these regulations.



Sec. 168.5  Grazing capacity.

    (a) The Area Director shall prescribe the maximum number of each 
kind of livestock which may be grazed on land under his jurisdiction 
without inducing damage to vegetation or related resources on each range 
unit and the season or seasons of use to achieve the objectives of the 
land recovery program required by the Settlement Act.
    (b) The Area Director shall review the stocking rate upon which the 
grazing permits are issued on a continuing basis and adjust that rate as 
conditions warrant.



Sec. 168.6  Grazing on range units authorized by permit.

    Grazing use on range units is authorized only by permits granted 
under paragraph (a) or (b) of this section.
    (a) Grazing permits to Hopi tribal members on their partitioned 
lands. The Area Director shall assign grazing privileges to the Hopi 
Tribe for lands within Hopi Partitioned Lands. The tribal government 
will then allocate use to their tribal members for permit periods not to 
exceed five years. Grazing use by Hopi tribal enterprises may be 
authorized. The Area Director will issue permits based on the 
determination of the Hopi tribal government.
    (b) Interim Grazing Permit for persons awaiting relocation. Navajo 
Tribal members who have maintained both a permanent residence on Hopi 
Partitioned lands; a livestock inventory since enumeration; and meet all 
the criteria listed in Sec. 168.1(o), shall be eligible for an interim 
grazing allocation on Hopi Partitioned Lands under the following terms 
and conditions:
    (1) The Area Director shall first verify that an applicant meets the 
criteria of the definition in Sec. 168.1(o) and will issue all permits.
    (2) The permitted number shall not exceed either (i) 10 SUYL (See 
Sec. 168.1(1)) for each eligible family member, or (ii) the grazing 
applicant's livestock inventory reduced by voluntary sales as adjusted 
by reproduction, in accordance with procedures developed by the Project 
Officer based upon the study by Stubblefield and Camfield, 1975 page 5. 
The determination of the person to whom permits will be issued and the 
number of livestock to be permitted will be based on information 
provided by the permit applicant and an assessment of the number of 
dependents residing in the immediate household.
    (3) The permit shall authorize grazing for a specific number and 
kind of animal(s) in a specified range unit. Interim grazing permits 
will not be issued in excess of one-half the authorized carrying 
capacity of the Hopi Partition area.
    (4) Subject to the provisions of Sec. 168.9(b), permits shall 
expire when the person awaiting relocation is relocated pursuant to the 
Settlement Act. No interim permit will be issued for a term greater than 
one year. Permits may be reissued upon application and redetermination 
of eligibility. All interim permits will expire at the end of the period 
provided for completion of relocation, Pub. L. 99-190. When a Navajo 
permit holder discontinues grazing livestock or reduces the number being 
grazed whether by reason of his relocating or for any other reason, his 
grazing permit will be cancelled or reduced and no permit will be issued 
in lieu thereof. The total number of authorized animal units grazed by 
the Navajo permit holders awaiting relocation will reduced by the number 
of animal units authorized under the cancelled or reduced permit.

[47 FR 39817, Sept. 10, 1982, as amended at 51 FR 23052, June 25, 1986]

[[Page 506]]



Sec. 168.7  Kind of livestock.

    Unless determined otherwise by the Area Director for conservation 
purposes, the Hopi Tribe may determine, subject to the authorized 
carrying capacity, the kind of livestock that may be grazed by their 
tribal members on the range units within the Hopi Partitioned Land area.



Sec. 168.8  Grazing fees.

    (a) The rental value of all uses of Hopi Partitioned lands by 
persons who are not members of the Hopi Tribe, including eligible 
holders of interim permits, will be determined, and assessed by the Area 
Director and paid in accordance with 25 U.S.C. 640d-15.
    (b) The Hopi Tribe has established an annual grazing fee to be 
assessed all range users on Hopi Partitioned Lands. The annual Hopi 
grazing fee shall be paid in full in advance of the annual effective 
date of the permit, prior to the issuance of a grazing permit. All 
interim permits will expire at the end of the period provided for 
completion of relocation, Pub. L. 99-190. Failure of the permittee to 
make payment in full in advance will be cause to deny issuance of the 
grazing permit.

[47 FR 39817, Sept. 10, 1982, as amended at 51 FR 23052, June 25, 1986]



Sec. 168.9  Assignment, modification and cancellation of permits.

    (a) Grazing permits to Hopi tribal members shall not be reassigned, 
subpermitted or transferred without the approval of the permit 
issuer(s).
    (b) The Area Director may revoke or withdraw all or any part of any 
grazing permit in Hopi Partitioned Lands by cancellation or modification 
on 30 days written notice of a violation of the permit or special 
conditions affecting the land or the safety of the livestock thereon, as 
may result from flood, disaster, drought, contagious diseases, etc. 
Except in the case of extreme necessity, cancellation or modification 
shall be effected on the next annual anniversay date of the grazing 
permit following the date of notice. Revocation or withdrawal of all or 
any of the grazing permit by cancellation or modification as provided 
herein is effective on the date the notice of cancellation or 
modification is received and shall be appealable under 25 CFR

part 2.



Sec. 168.10  Conservation and land use provisions.

    Grazing operations shall be conducted in accordance with recognized 
principles of good range management. Conservation management plans 
necessary to accomplish this will be made a part of the grazing permit 
by stipulation.



Sec. 168.11  Range improvements; ownership; new construction.

    Except as provided by the Relocation Act, range improvements placed 
on the permitted land shall be considered affixed to the land unless 
specifically excepted therefrom under the permit terms. Written 
permission to construct or remove improvements must be obtained from the 
Hopi Tribe.



Sec. 168.12  Special permit requirements and provisions.

    All grazing permits shall contain the following provisions:
    (a) Because the lands covered by the permit are in trust status, all 
of the permittees' obligations on the permit and the obligations of his 
sureties are to the United States as well as to the beneficial owners of 
the lands.
    (b) The permittee agrees he will not use, cause, or allow to be used 
any part of the permitted area for any unlawful conduct or purpose.
    (c) The permit authorizes only the grazing of livestock.



Sec. 168.13  Fences.

    Fencing will be erected by the Federal Government around the 
perimeter of the 1882 Executive Order Area, Land Management District 6, 
and on the boundary of the former Joint Use Area partitioned to each 
tribe by the Judgment of Partition of April 18, 1979. Fencing of other 
areas in the former Joint Use Area will be required for a range recovery 
program in accordance with the range units established under Sec. 
168.4. Such fencing shall be erected at Government expense and ownership 
shall be clearly identified by appropriate posting on the fencing. 
Intentional destruction of Federal property

[[Page 507]]

will be treated as a violation of 18 U.S.C. 1164.



Sec. 168.14  Livestock trespass.

    The owner of any livestock grazing in trespass on the Hopi 
Partitioned Lands Area is liable to a civil penalty of $1 per head per 
day for each animal in trespass, together with the replacement value of 
the forage consumed and a reasonable value for damages to property 
injured or destroyed. The Superintendent may take appropriate action to 
collect all such penalties and damages and seek injunctive relief when 
appropriate. All payments for such penalties and damages shall be 
credited to the Tribe. The following acts are prohibited:
    (a) The grazing upon or driving across any of the Hopi Partitioned 
Lands of any livestock without an approved grazing or crossing permit;
    (b) Allowing livestock to drift and graze on lands without an 
approved permit;
    (c) The grazing of livestock upon lands within an area closed to 
grazing of that class of livestock;
    (d) The grazing of livestock by permittees upon any land withdrawn 
from use for grazing purpose to protect it from damage, after the 
receipt of notice from the Area Director; and
    (e) Grazing livestock in excess of those numbers and kinds 
authorized on a livestock grazing permit approved by the Area Director.



Sec. 168.15  Control of livestock diseases and parasites.

    Whenever livestock within the Hopi Partitioned Lands become infected 
with contagious or infectious diseases or parasites or have been exposed 
thereto, such livestock must be treated and the movement thereof 
restricted in accordance with applicable laws.



Sec. 168.16  Impoundment and disposal of unauthorized livestock.

    Unauthorized livestock within any range unit of the Hopi Partitioned 
Lands which are not removed therefrom within the periods prescribed by 
the regulation will be impounded and disposed of by the Superintendent 
as provided herein.
    (a) When the Area Director determines that unauthorized livestock 
use is occurring and has definite knowledge of the kind of unauthorized 
livestock, and knows the name and address of the owners, such livestock 
may be impounded any time five days after written notice of intent to 
impound unauthorized livestock is mailed by certified mail or personally 
delivered to such owners or their agent.
    (b) When the Area Director determines that unauthorized livestock 
use is occurring but does not have complete knowledge of the number and 
class of livestock or if the name and address of the owner thereof are 
unknown, such livestock will be impounded anytime 15 days after the date 
of a General Notice of Intent to Impound unauthorized livestock is first 
published in the local newspaper, posted at the nearest chapter house, 
and in one or more local trading posts.
    (c) Unauthorized livestock on the Hopi Partitioned Lands which are 
owned by persons given notice under paragraph (a) of this section, and 
any unauthorized livestock in areas for which a notice has been posted 
and published under paragraph (b) of this section, will be impounded 
without further notice anytime within the twelve-month period 
immediately following the effective date of the notice.
    (d) Following the impoundment of unauthorized livestock a notice of 
sale of impounded livestock will be published in the local newspaper, 
posted at the nearest chapter house, and in one or more local trading 
posts. The notice will describe the livestock and specify the date, time 
and place of sale. The date set shall be at least 5 days after the 
publication and posting of such notice.
    (e) The owners or their agent may redeem the livestock anytime 
before the time set for the sale by submitting proof of ownership and 
paying for all expenses incurred in gathering, impounding and feeding or 
pasturing the livestock and any trespass fees and/or damages caused by 
the animals.
    (f) Livestock erroneously impounded shall be returned to the 
rightful owner and all expenses accruing thereto shall be waived.

[[Page 508]]

    (g) If the livestock are not redeemed before the time fixed for 
their sale, they shall be sold at public sale to the highest bidder, 
provided his bid is at or above the minimum amount set by the 
Superintendent based upon U.S.D.A.'s current Agricultural Statistic's 
Report for Arizona. If a bid at or above the minimum is not received the 
livestock may be sold at private sale at or above the minimum amount, 
reoffered at public sale, condemned and destroyed, or otherwise disposed 
of. When livestock are sold pursuant to this regulation, the 
superintendent shall furnish the buyer a bill of sale or other written 
instrument evidencing the sale.
    (h) The proceeds of any sale of impounded livestock shall be applied 
as follows:
    (1) To the payment of all expenses incurred by the United States in 
gathering, impounding, and feeding or pasturing the livestock;
    (2) In payment of any penalties or damages assessed pursuant to 
Sec. 168.14 of this part which penalties or damages shall be credited 
to the Hopi tribe as provided in said section;
    (3) Any remaining amount shall be paid over to the owner of said 
livestock upon his submitting proof of ownership.

Any proceeds remaining after payment of the first and second items noted 
above not claimed with one year from the date of sale, will be credited 
to the Hopi Tribe.



Sec. 168.17  Concurrence procedures.

    (a) Definitions. As used in this section, terms shall have the 
meaning set forth as follows:
    (1) Concurrence means agreement by the Area Director and the Hopi 
Tribe, speaking through the Chairman of the Tribe (or his designee).
    (2) Non-concurrence means disagreement between the Area Director and 
the Hopi Tribe, speaking through the Chairman of the Hopi Tribe (or his 
designee), or a failure of the Hopi Tribe to respond to a proposal by 
the Area Director in a timely manner.
    (3) Timely manner means a period of thirty days, unless this period 
is shortened by the existence of an emergency. Upon request by the 
Tribal Council, the Area Director may extend the 30 day period. In 
instances where this period applies to the Area Director, he may extend 
the period by so notifying the Tribe.
    (4) An emergency is a condition that the Area Director finds 
threatens the rights and property of life tenants and persons awaiting 
relocation or one that the Area Director finds is causing the condition 
of the range land to deteriorate.
    (5) Conservation practice is a program consisting of a series of 
acts in conformance with the Bureau's range management policies and 
procedures which maintains or seeks to achieve the grazing potential of 
range lands on a continuing basis.
    (6) Range restoration activities is a program consisting of a series 
of range management acts, including but not limited to procedures which 
increase range forage production, reduce erosion, improve range 
usability and reduce stocking by issuing grazing permits to persons 
residing on Hopi partitioned lands at rates which maximize the carrying 
capacity of the range lands on a continuing basis.
    (7) Grazing control is a program consisting of a series of range 
management acts, including but not limited to procedures by which 
grazing permits are issued to persons residing on Hopi partitioned 
lands, which limit the grazing on range lands to its carrying capacity.
    (b) The Area Director will seek the participation of the Hopi Tribe 
in his investigation, formulation and planning of conservation practices 
for Hopi partitioned lands. The Area Director will submit, in writing, 
the proposed plan to the Hopi Tribe.
    (c) Upon receipt of the Area Director's proposed conservation 
practices, the Hopi Tribe will deliver, in writing, to the Area Director 
its concurrence or non-concurrence on all of the proposed conservation 
practices in a timely manner. The Area Director will continue to seek 
Hopi Tribal participation during the review process.
    (d) Concurrence of the Hopi Tribe will be sought on all conservation 
practices, range restoration activities, and grazing control programs on 
the Hopi Partitioned Lands.

[[Page 509]]

    (1) If the Area Director and the Hopi Tribe concur on all or part of 
the proposed conservation practices in writing in a timely manner, those 
practices concurred upon may be immediately implemented.
    (2) If the Hopi Tribe does not concur on all or part of the proposed 
conservation practices in a timely manner, the Area Director will submit 
in writing to the Hopi Tribe a declaration of non-concurrence. The Area 
Director will then notify the Hopi Tribe in writing of a formal hearing 
to be held not sooner than 15 days from the date of the non-concurrence 
declaration.
    (i) The formal hearing on non-concurrence will permit the submission 
of written evidence and argument concerning the proposal. Minutes of the 
hearing will be taken. Following the hearing, the Area Director may 
amend, alter or otherwise change his proposed conservation practices. 
Except as provided in Sec. 168.17(d)(1) of this section, if following 
the hearing, the Area Director altered or amends portions of his 
proposed plan of action, he will submit those individual altered or 
amended portions of the plan to the Tribe in a timely manner for their 
concurrence.
    (ii) In the event the Tribe fails or refuses to give its concurrence 
to the proposal at the hearing, then the implementation of such proposal 
may only be undertaken in those situations where the Area Director 
expressly determines in a written order, based upon findings of fact, 
that the proposed action is necessary to protect the rights and property 
of life tenants and/or persons awaiting relocation.



Sec. 168.18  Appeals.

    Appeals from decisions issued under this part will be in accordance 
with procedures in 25 CFR part 2.



Sec. 168.19  Information collection.

    The information collection requirement(s) contained in this 
regulation have been approved by the Office of Management and Budget 
under 44 U.S.C. 3501 et seq. and assigned clearance number 1076-0027. 
The information is being collected in order to ascertain eligibility for 
the issuance of a grazing permit. Response is mandatory in order to 
obtain a permit.



PART 169_RIGHTS-OF-WAY OVER INDIAN LANDS--Table of Contents




Sec.
169.1 Definitions.
169.2 Purpose and scope of regulations.
169.3 Consent of landowners to grants of right-of-way.
169.4 Permission to survey.
169.5 Application for right-of-way.
169.6 Maps.
169.7 Field notes.
169.8 Public survey.
169.9 Connection with natural objects.
169.10 Township and section lines.
169.11 Affidavit and certificate.
169.12 Consideration for right-of-way grants.
169.13 Other damages.
169.14 Deposit and disbursement of consideration and damages.
169.15 Action on application.
169.16 Affidavit of completion.
169.17 Change of location.
169.18 Tenure of approved right-of-way grants.
169.19 Renewal of right-of-way grants.
169.20 Termination of right-of-way grants.
169.21 Condemnation actions involving individually owned lands.
169.22 Service lines.
169.23 Railroads.
169.24 Railroads in Oklahoma.
169.25 Oil and gas pipelines.
169.26 Telephone and telegraph lines; radio, television, and other 
          communications facilities.
169.27 Power projects.
169.28 Public highways.

    Authority: 5 U.S.C. 301; 62 Stat. 17 (25 U.S.C. 323--328), and other 
acts cited in the text.

    Source: 33 FR 19803, Dec. 27, 1968, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 169.1  Definitions.

    As used in this part 169:
    (a) Secretary means the Secretary of the Interior or his authorized 
representative acting under delegated authority. Before proceeding under 
these regulations anyone desiring a right-of-way should inquire at the 
Indian Agency, Area Field Office, or other office of the Bureau of 
Indian Affairs having immediate supervision over the lands involved to 
determine the identity of the authorized representative of the Secretary 
for the purposes of this part 169.
    (b) Individually owned land means land or any interest therein held 
in

[[Page 510]]

trust by the United States for the benefit of individual Indians and 
land or any interest therein held by individual Indians subject to 
Federal restrictions against alienation or encumbrance.
    (c) Tribe means a tribe, band, nation, community, group or pueblo of 
Indians.
    (d) Tribal land means land or any interest therein, title to which 
is held by the United States in trust for a tribe, or title to which is 
held by any tribe subject to Federal restrictions against alienation or 
encumbrance, and includes such land reserved for Indian Bureau 
administrative purposes. The term also includes lands held by the United 
States in trust for an Indian corporation chartered under section 17 of 
the Act of June 18, 1934 (48 Stat. 988; 25 U.S.C. 477).
    (e) Government owned land means land owned by the United States and 
under the jurisdiction of the Secretary which was acquired or set aside 
for the use and benefit of Indians and not included in the definitions 
set out in paragraphs (b) and (d) of this section.



Sec. 169.2  Purpose and scope of regulations.

    (a) Except as otherwise provided in Sec. 1.2 of this chapter, the 
regulations in this part 169 prescribe the procedures, terms and 
conditions under which rights-of-way over and across tribal land, 
individually owned land and Government owned land may be granted.
    (b) Appeals from administrative action taken under the regulations 
in this part 169 shall be made in accordance with part 2 of this 
chapter.
    (c) The regulations contained in this part 169 do not cover the 
granting of rights-of-way upon tribal lands within a reservation for the 
purpose of constructing, operating, or maintaining dams, water conduits, 
reservoirs, powerhouses, transmission lines or other works which shall 
constitute a part of any project for which a license is required by the 
Federal Power Act. The Federal Power Act provides that any license which 
shall be issued to use tribal lands within a reservation shall be 
subject to and contain such conditions as the Secretary of the Interior 
shall deem necessary for the adequate protection and utilization of such 
lands. (16 U.S.C. 797(e)). In the case of tribal lands belonging to a 
tribe organized under the Act of June 18, 1934 (48 Stat. 984), the 
Federal Power Act requires that annual charges for the use of such 
tribal lands under any license issued by the Federal Power Commission 
shall be subject to the approval of the tribe (16 U.S.C. 803(e)).



Sec. 169.3  Consent of landowners to grants of right-of-way.

    (a) No right-of-way shall be granted over and across any tribal 
land, nor shall any permission to survey be issued with respect to any 
such lands, without the prior written consent of the tribe.
    (b) Except as provided in paragraph (c) of this section, no right-
of-way shall be granted over and across any individually owned lands, 
nor shall any permission to survey be issued with respect to any such 
lands, without the prior written consent of the owner or owners of such 
lands and the approval of the Secretary.
    (c) The Secretary may issue permission to survey with respect to, 
and he may grant rights-of-way over and across individually owned lands 
without the consent of the individual Indian owners when
    (1) The individual owner of the land or of an interest therein is a 
minor or a person non compos mentis, and the Secretary finds that such 
grant will cause no substantial injury to the land or the owner, which 
cannot be adequately compensated for by monetary damages;
    (2) The land is owned by more than one person, and the owners or 
owner of a majority of the interests therein consent to the grant;
    (3) The whereabouts of the owner of the land or an interest therein 
are unknown, and the owners or owner of any interests therein whose 
whereabouts are known, or a majority thereof, consent to the grant;
    (4) The heirs or devisees of a deceased owner of the land or an 
interest therein have not been determined, and the Secretary finds that 
the grant will cause no substantial injury to the land or any owner 
thereof;
    (5) The owners of interests in the land are so numerous that the 
Secretary finds it would be impracticable

[[Page 511]]

to obtain their consent, and also finds that the grant will cause no 
substantial injury to the land or any owner thereof.

[36 FR 14183, July 31, 1971. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 169.4  Permission to survey.

    Anyone desiring to obtain permission to survey for a right-of-way 
across individually owned, tribal or Government owned land must file a 
written application therefor with the Secretary. The application shall 
adequately describe the proposed project, including the purpose and 
general location, and it shall be accompanied by the written consents 
required by Sec. 169.3, by satisfactory evidence of the good faith and 
financial responsibility of the applicant, and by a check or money order 
of sufficient amount to cover twice the estimated damages which may be 
sustained as a result of the survey. With the approval of the Secretary, 
a surety bond may be substituted in lieu of a check or money order 
accompanying an application, provided the company issuing the surety 
bond is licensed to do business in the State where the land to be 
surveyed is located. The application shall contain an agreement to 
indemnify the United States, the owners of the land, and occupants of 
the land, against liability for loss of life, personal injury and 
property damage occurring because of survey activities and caused by the 
applicant, his employees, contractors and their employees, or 
subcontractors and their employees. When the applicant is an agency or 
instrumentality of the Federal or a State Government and is prohibited 
by law from depositing estimated damages in advance or agreeing to 
indemnification, the requirement for such a deposit and indemnification 
may be waived providing the applicant agrees in writing to pay damages 
promptly when they are sustained. An application filed by a corporation 
must be accompanied by a copy of its charter or articles of 
incorporation duly certified by the proper State official of the State 
where the corporation was organized, and a certified copy of the 
resolution or bylaws of the corporation authorizing the filing of the 
application. When the land covered by the application is located in a 
State other than that in which the application was incorporated, it must 
also submit a certificate of the proper State official that the 
applicant is authorized to do business in the State where the land is 
located. An application filed by an unincorporated partnership or 
association must be accompanied by a certified copy of the articles of 
partnership or association, or if there be none, this fact must be 
stated over the signature of each member of the partnership or 
association. If the applicant has previously filed with the Secretary an 
application accompanied by the evidence required in this section, a 
reference to the date and place of such filing, accompanied by proof of 
current financial responsibility and good faith, will be sufficient. 
Upon receipt of an application made in compliance with the regulations 
of this part 169, the Secretary may grant the applicant written 
permission to survey.



Sec. 169.5  Application for right-of-way.

    Written application identifying the specific use requested shall be 
filed in duplicate with the Secretary. The application shall cite the 
statute or statutes under which it is filed and the width and length of 
the desired right-of-way, and shall be accompanied by satisfactory 
evidence of the good faith and financial responsibility of the 
applicant. An application filed by a corporation must be accompanied by 
a copy of its charter or articles of incorporation duly certified by the 
proper State official of the State where the corporation was organized, 
and a certified copy of the resolution or bylaws of the corporation 
authorizing the filing of the application. When the land covered by the 
application is located in a State other than that in which the applicant 
was incorporated, it must also submit a certificate of the proper State 
official that the applicant is authorized to do business in the State 
where the land is located. An application filed by an unincorporated 
partnership or association must be accompanied be a certified copy of 
the articles of partnership or association, or if there be none, this 
fact must be stated over the signature of each member of the partnership 
or association. If the

[[Page 512]]

applicant has previously filed with the Secretary an application 
accompanied by the evidence required by this section, a reference to the 
date and place of such filing will be sufficient. Except as otherwise 
provided in this section, the application shall be accompanied by a duly 
executed stipulation, in duplicate, expressly agreeing to the following:
    (a) To construct and maintain the right-of-way in a workmanlike 
manner.
    (b) To pay promptly all damages and compensation, in addition to the 
deposit made pursuant to Sec. 169.4, determined by the Secretary to be 
due the landowners and authorized users and occupants of the land on 
account of the survey, granting, construction and maintenance of the 
right-of-way.
    (c) To indemnify the landowners and authorized users and occupants 
against any liability for loss of life, personal injury and property 
damage arising from the construction, maintenance, occupancy or use of 
the lands by the applicant, his employees, contractors and their 
employees, or subcontractors and their employees.
    (d) To restore the lands as nearly as may be possible to their 
original condition upon the completion of construction to the extent 
compatible with the purpose for which the right-of-way was granted.
    (e) To clear and keep clear the lands within the right-of-way to the 
extent compatible with the purpose of the right-of-way; and to dispose 
of all vegetative and other material cut, uprooted, or otherwise 
accumulated during the construction and maintenance of the project.
    (f) To take soil and resource conservation and protection measures, 
including weed control, on the land covered by the right-of-way.
    (g) To do everything reasonably within its power to prevent and 
suppress fires on or near the lands to be occupied under the right-of-
way.
    (h) To build and repair such roads, fences, and trails as may be 
destroyed or injured by construction work and to build and maintain 
necessary and suitable crossings for all roads and trails that intersect 
the works constructed, maintained, or operated under the right-of-way.
    (i) That upon revocation or termination of the right-of-way, the 
applicant shall, so far as is reasonably possible, restore the land to 
its original condition.
    (j) To at all times keep the Secretary informed of its address, and 
in case of corporations, of the address of its principal place of 
business and of the names and addresses of its principal officers.
    (k) That the applicant will not interfere with the use of the lands 
by or under the authority of the landowners for any purpose not 
inconsistent with the primary purpose for which the right-of-way is 
granted.

When the applicant is the U.S. Government or a State Government or an 
instrumentality thereof and is prohibited by law from executing any of 
the above stipulations, the Secretary may waive the requirement that the 
applicant agree to any stipulations so prohibited.

[33 FR 19803, Dec. 27, 1968, as amended at 45 FR 45910, July 8, 1980. 
Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 169.6  Maps.

    (a) Each application for a right-of-way shall be accompanied by maps 
of definite location consisting of an original on tracing linen or other 
permanent and reproducible material and two reproductions thereof. The 
field notes shall accompany the application, as provided in Sec. 169.7. 
The width of the right-of-way shall be clearly shown on the maps.
    (b) A separate map shall be filed for each section of 20 miles of 
right-of-way, but the map of the last section may include any excess of 
10 miles or less.
    (c) The scale of maps showing the line of route normally should be 
2,000 feet to an inch. The maps may, however, be drawn to a larger scale 
when necessary and when an increase in scale cannot be avoided through 
the use of separate field notes, but the scale must not be increased to 
such extent as to make the maps too cumbersome for convenient handling 
and filing.
    (d) The maps shall show the allotment number of each tract of 
allotted land, and shall clearly designate each tract of tribal land 
affected, together with the sections, townships, and

[[Page 513]]

ranges in which the lands crossed by the right-of-way are situated.



Sec. 169.7  Field notes.

    Field notes of the survey shall appear along the line indicating the 
right-of-way on the maps, unless the maps would be too crowded thereby 
to be easily legible, in which event the field notes may be filed 
separately on tracing linen in such form that they may be folded readily 
for filing. Where field notes are placed on separate tracing linen, it 
will be necessary to place on the maps only a sufficient number of 
station numbers so as to make it convenient to follow the field notes. 
The field notes shall be typewritten. Whether endorsed on the maps or 
filed separately, the field notes shall be sufficiently complete so as 
to permit the line indicating the right-of-way to be readily retraced on 
the ground from the notes. They shall show whether the line was run on 
true or magnetic bearings, and, in the latter case, the variation of the 
needle and date of determination must be stated. One or more bearings 
(or angular connections with public survey lines) must be given. The 10-
mile sections must be indicated and numbered on all lines of road 
submitted.



Sec. 169.8  Public survey.

    (a) The terminal of the line of route shall be fixed by reference of 
course and distance to the nearest existing corner of the public survey. 
The maps, as well as the engineer's affidavit and the certificate, shall 
show these connections.
    (b) When either terminal of the line of route is upon unsurveyed 
land, it must be connected by traverse with an established corner of the 
public survey if not more than 6 miles distant from it, and the single 
bearing and distance from the terminal point to the corner computed and 
noted on the maps, in the engineer's affidavit, and in the certificate. 
The notes and all data for the computation of the traverse must be 
given.



Sec. 169.9  Connection with natural objects.

    When the distance to an established corner of the public survey is 
more than 6 miles, this connection will be made with a natural object or 
a permanent monument which can be readily found and recognized, and 
which will fix and perpetuate the position of the terminal point. The 
maps must show the position of such mark, and course and distance to the 
terminus. There must be given an accurate description of the mark and 
full data concerning the traverse, and the engineer's affidavit and the 
certificate on the maps must state the connections.



Sec. 169.10  Township and section lines.

    Whenever the line of survey crosses a township or section line of 
the public survey, the distance to the nearest existing corner shall be 
noted. The maps shall show these distances and the station numbers at 
the points of intersections. The field notes shall show these distances 
and the station numbers.



Sec. 169.11  Affidavit and certificate.

    (a) There shall be subscribed on the maps of definite location an 
affidavit executed by the engineer who made the survey and a certificate 
executed by the applicant, both certifying to the accuracy of the survey 
and maps and both designating by termini and length in miles and 
decimals, the line of route for which the right-of-way application is 
made.
    (b) Maps covering roads built by the Bureau of Indian Affairs which 
are to be transferred to a county or State government shall contain an 
affidavit as to the accuracy of the survey, executed by the Bureau 
highway engineer in charge of road construction, and a certificate by 
the State or county engineer or other authorized State or county officer 
accepting the right-of-way and stating that he is satisfied as to the 
accuracy of the survey and maps.



Sec. 169.12  Consideration for right-of-way grants.

    Except when waived in writing by the landowners or their 
representatives as defined in Sec. 169.3 and approved by the Secretary, 
the consideration for any right-of-way granted or renewed under this 
part 169 shall be not less than but not limited to the fair market value 
of the rights granted, plus severance damages, if any, to the remaining 
estate.

[[Page 514]]

The Secretary shall obtain and advise the landowners of the appraisal 
information to assist them (the landowner or landowners) in negotiations 
for a right-of-way or renewal.

[45 FR 45910, July 8, 1980. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 169.13  Other damages.

    In addition to the consideration for a grant of right-of-way 
provided for by the provisions of Sec. 169.12, the applicant for a 
right-of-way will be required to pay all damages incident to the survey 
of the right-of-way or incident to the construction or maintenance of 
the facility for which the right-of-way is granted.



Sec. 169.14  Deposit and disbursement of consideration and damages.

    At the time of filing an application for right-of-way, the applicant 
must deposit with the Secretary the total estimated consideration and 
damages, which shall include consideration for the right-of-way, 
severance damages, damages caused during the survey, and estimated 
damages to result from construction less any deposit previously made 
under Sec. 169.4. In no case shall the amount deposited as 
consideration for the right-of-way over any parcel be less than the 
amount specified in the consent covering that parcel. If in reviewing 
the application, the Secretary determines that the amounts deposited are 
inadequate to compensate the owners, the applicant shall increase the 
deposit to an amount determined by the Secretary to be adequate. The 
amounts so deposited shall be held in a ``special deposit'' account for 
distribution to or for the account of the landowners and authorized 
users and occupants of the land. Amounts deposited to cover damages 
resulting from survey and construction may be disbursed after the 
damages have been sustained. Amounts deposited to cover consideration 
for the right-of-way and severance damages shall be disbursed upon the 
granting of the right-of-way. Any part of the deposit which is not 
required for disbursement as aforesaid shall be refunded to the 
applicant promptly following receipt of the affidavit of completion of 
construction filed pursuant to Sec. 169.16.



Sec. 169.15  Action on application.

    Upon satisfactory compliance with the regulations in this part 169, 
the Secretary is authorized to grant the right-of-way by issuance of a 
conveyance instrument in the form approved by the Secretary. Such 
instrument shall incorporate all conditions or restrictions set out in 
the consents obtained pursuant to Sec. 169.3. A copy of such instrument 
shall be promptly delivered to the applicant and thereafter the 
applicant may proceed with the construction work. Maps of definite 
location may be attached to and incorporated into the conveyance 
document by reference. In the discretion of the Secretary, one 
conveyance document may be issued covering all of the tracts of land 
traversed by the right-of-way, or separate conveyances may be made 
covering one or several tracts included in the application. A duplicate 
original copy of the conveyance instrument, permanent and reproducible 
maps, a copy of the application and stipulations, together with any 
other pertinent documents shall be transmitted by the Secretary to the 
office of record for land documents affecting the land covered by the 
right-of-way, where they will be recorded and filed.



Sec. 169.16  Affidavit of completion.

    Upon the completion of the construction of any right-of-way, the 
applicant shall promptly file with the Secretary an affidavit of 
completion, in duplicate, executed by the engineer and certified by the 
applicant. The Secretary shall transmit one copy of the affidavit to the 
office of record mentioned in Sec. 169.15. Failure to file an affidavit 
in accordance with this section shall subject the right-of-way to 
cancellation in accordance with Sec. 169.20.



Sec. 169.17  Change of location.

    If any change from the location described in the conveyance 
instrument is found to be necessary on account of engineering 
difficulties or otherwise, amended maps and field notes of the new 
location shall be filed, and a right-of-way for such new route or 
location shall be subject to consent, approval, the ascertainment of 
damages, and the payment thereof, in all respects as in

[[Page 515]]

the case of the original location. Before a revised conveyance 
instrument is issued, the applicant shall execute such instruments 
deemed necessary by the Secretary extinguishing the right-of-way at the 
original location. Such instruments shall be transmitted by the 
Secretary to the office of record mentioned in Sec. 169.15 for 
recording and filing.



Sec. 169.18  Tenure of approved right-of-way grants.

    All rights-of-way granted under the regulations in this part 169 
shall be in the nature of easements for the periods stated in the 
conveyance instrument. Except as otherwise determined by the Secretary 
and stated in the conveyance instrument, rights-of-way granted under the 
Act of February 5, 1948 (62 Stat. 17; 25 U.S.C. 323-328), for railroads, 
telephone lines, telegraph lines, public roads and highways, access 
roads to homesite properties, public sanitary and storm sewer lines 
including sewage disposal and treatment plants, water control and use 
projects (including but not limited to dams, reservoirs, flowage 
easements, ditches, and canals), oil, gas, and public utility water 
pipelines (including pumping stations and appurtenant facilities), 
electric power projects, generating plants, switchyards, electric 
transmission and distribution lines (including poles, towers, and 
appurtenant facilities), and for service roads and trails essential to 
any of the aforestated use purposes, may be without limitation as to 
term of years; whereas, rights-of-way for all other purposes shall be 
for a period of not to exceed 50 years, as determined by the Secretary 
and stated in the conveyance instrument.

[37 FR 12937, June 30, 1972. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 169.19  Renewal of right-of-way grants.

    On or before the expiration date of any right-of-way heretofore or 
hereafter granted for a limited term of years, an application may be 
submitted for a renewal of the grant. If the renewal involves no change 
in the location or status of the original right-of-way grant, the 
applicant may file with his application a certificate under oath setting 
out this fact, and the Secretary, with the consent required by Sec. 
169.3, may thereupon extend the grant for a like term of years, upon the 
payment of consideration as set forth in Sec. 169.12. If any change in 
the size, type, or location of the right-of-way is involved, the 
application for renewal shall be treated and handled as in the case of 
an original application for a right-of-way.



Sec. 169.20  Termination of right-of-way grants.

    All rights-of-way granted under the regulations in this part may be 
terminated in whole or in part upon 30 days written notice from the 
Secretary mailed to the grantee at its latest address furnished in 
accordance with Sec. 169.5(j) for any of the following causes:
    (a) Failure to comply with any term or condition of the grant or the 
applicable regulations;
    (b) A nonuse of the right-of-way for a consecutive 2-year period for 
the purpose for which it was granted;
    (c) An abandonment of the right-of-way.

If within the 30-day notice period the grantee fails to correct the 
basis for termination, the Secretary shall issue an appropriate 
instrument terminating the right-of-way. Such instrument shall be 
transmitted by the Secretary to the office of record mentioned in Sec. 
169.15 for recording and filing.

[33 FR 19803, Dec. 27, 1968, as amended at 45 FR 45910, July 8, 1980. 
Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 169.21  Condemnation actions involving individually owned lands.

    The facts relating to any condemnation action to obtain a right-of-
way over individually owned lands shall be reported immediately by 
officials of the Bureau of Indian Affairs having knowledge of such facts 
to appropriate officials of the Interior Department so that action may 
be taken to safeguard the interests of the Indians.



Sec. 169.22  Service lines.

    (a) An agreement shall be executed by and between the landowner or a 
legally authorized occupant or user of individually owned land and the 
applicant before any work by the applicant

[[Page 516]]

may be undertaken to construct a service line across such land. Such a 
service line shall be limited in the case of power lines to a voltage of 
14.5 kv. or less except lines to serve irrigation pumps and commercial 
and industrial uses which shall be limited to a voltage not to exceed 
34.5 kv. A service line shall be for the sole purpose of supplying the 
individual owner or authorized occupant or user of land, including 
schools and churches, with telephone, water, electric power, gas, and 
other utilities for use by such owner, occupant, or user of the land on 
the premises.
    (b) A similar agreement to that required in paragraph (a) of this 
section shall be executed by the tribe or legally authorized occupant or 
user of tribal land and the applicant before any work by the applicant 
may be undertaken for the construction of a service line across tribal 
land. A service line shall be for the sole purpose of supplying an 
occupant or user of tribal land with any of the utilities specified in 
paragraph (a) of this section. No agreement under this paragraph shall 
be valid unless its execution shall have been duly authorized in advance 
of construction by the governing body of the Indian tribe whose land is 
affected, unless the contract under which the occupant or user of the 
land obtained his rights specifically authorizes such occupant or user 
to enter into service agreements for utilities without further tribal 
consent.
    (c) In order to encourage the use of telephone, water, electric 
power, gas and other utilities and to facilitate the extension of these 
modern conveniences to sparsely settled Indian areas without undue costs 
the agreement referred to in paragraph (a) of this section shall only be 
required to include or have appended thereto, a plat or diagram showing 
with particularity the location, size, and extent of the line. When the 
plat or diagram is placed on a separate sheet it shall bear the 
signature of the parties. In case of tribal land, the agreement shall be 
accompanied by a certified copy of the tribal authorization when 
required.
    (d) An executed copy of the agreement, together with a plat or 
diagram, and in the case of tribal land, an authenticated copy of the 
tribal authorization, when required, shall be filed with the Secretary 
within 30 days after the date of its execution. Failure to meet this 
requirement may result in the removal of improvements placed on the land 
at the expense of the party responsible for the placing of such 
improvements and subject such party to the payment of damages caused by 
his unauthorized act.



Sec. 169.23  Railroads.

    (a) The Act of March 2, 1899 (30 Stat. 990), as amended by the Acts 
of February 28, 1902 (32 Stat. 50), June 21, 1906 (34 Stat. 330), and 
June 25, 1910 (36 Stat. 859; 25 U.S.C. 312--318); the Act of March 3, 
1875 (18 Stat. 482; 43 U.S.C. 934); and the Act of March 3, 1909 (35 
Stat. 781), as amended by the Act of May 6, 1910 (36 Stat. 349; 25 
U.S.C. 320), authorize grants of rights-of-way across tribal, 
individually owned and Government-owned land, except in the State of 
Oklahoma, for railroads, station buildings, depots, machine shops, side 
tracks, turnouts, and water stations; for reservoirs, material or 
ballast pits needed to the construction, repair, and maintenance of 
railroads; and for the planting and growing of trees to protect railroad 
lines. Rights-of-way granted under the above acts shall be subject to 
the provisions of this section as well as other pertinent sections of 
this part 169. Except when otherwise determined by the Secretary, 
rights-of-way for the above purposes granted under the Act of February 
5, 1948 (62 Stat. 17; 25 U.S.C. 323-328), shall also be subject to the 
provisions of this section.
    (b) Rights-of-way for railroads shall not exceed 50 feet in width on 
each side of the centerline of the road, except where there are heavy 
cuts and fills, when they shall not exceed 100 feet in width on each 
side of the road. The right-of-way may include grounds adjacent to the 
line for station buildings, depots, machine shops, side tracks, 
turnouts, and water stations, not to exceed 200 feet in width by a 
length of 3,000 feet, with no more than one station to be located within 
any one continuous length of 10 miles of road.
    (c) Short spurs and branch lines may be shown on the map of the main 
line,

[[Page 517]]

separately described by termini and length. Longer spurs and branch 
lines shall be shown on separate maps. Grounds desired for station 
purposes may be indicated on the map of definite location but separate 
plats must be filed for such grounds. The maps shall show any other line 
crossed, or with which connection is made. The station number shall be 
shown on the survey thereof at the point of intersection. All 
intersecting roads must be represented in ink of a different color from 
that used for the line for which application is made.
    (d) Plats of railroad station grounds shall be drawn on a scale of 
400 feet to an inch, and must be filed separately from the line of 
route. Such plats shall show enough of the line of route to indicate the 
position of the tract with reference thereto. Each station ground tract 
must be located with respect to the public survey as provided in Sec. 
169.8 and all buildings or other structures shall be platted on a scale 
sufficiently large to show clearly their dimensions and relative 
positions.
    (e) If any proposed railroad is parallel to, and within 10 miles of, 
a railroad already built or in course of construction, it must be shown 
wherein the public interest will be promoted by the proposed road. Where 
the Interstate Commerce Commission has passed on this point, a certified 
copy of its findings must be filed with the application.
    (f) The applicant must certify that the road is to be operated as a 
common carrier of passengers and freight.
    (g) The applicant shall execute and file, in duplicate, a 
stipulation obligating the company to use all precautions possible to 
prevent forest fires and to suppress such fires when they occur, to 
construct and maintain passenger and freight stations for each 
Government townsite, and to permit the crossing, in a manner 
satisfactory to the Government officials in charge, of the right-of-way 
by canals, ditches, and other projects.
    (h) A railroad company may apply for sufficient land for ballast or 
material pits, reservoirs, or tree planting to aid in the construction 
or maintenance of the road. The authority to use any land for such 
purposes shall terminate upon abandonment or upon failure to use the 
land for such purposes for a continuous period of 2 years.



Sec. 169.24  Railroads in Oklahoma.

    (a) The Act of February 28, 1902 (32 Stat. 43), authorizes right-of-
way grants across tribal and individually owned land in Oklahoma. 
Rights-of-way granted under that act shall be subject to the provisions 
of this section as well as other pertinent sections of this part 169. 
Except when otherwise determined by the Secretary, railroad rights-of-
way in Oklahoma granted under the Act of February 5, 1948 (62 Stat. 17; 
25 U.S.C. 323-328), shall also be subject to the provisions of this 
section.
    (b) One copy on tracing linen of the map of definite location 
showing the line of route and all lands included within the right-of-way 
must be filed with the Secretary. When tribal lands are involved, a copy 
of the map must also be filed with the tribal council.
    (c) Before any railroad may be constructed or any lands taken or 
condemned for any of the purposes set forth in section 13 of the Act of 
February 28, 1902 (32 Stat. 47), full damages shall be paid to the 
Indian owners.
    (d) After the maps have been filed, the matter of damages shall be 
negotiated by the applicant directly with the Indian owners. If an 
amicable settlement cannot be reached, the amount to be paid as 
compensation and damages shall be fixed and determined as provided in 
the statute. If court proceedings are instituted, the facts shall be 
reported immediately as provided in Sec. 169.21.



Sec. 169.25  Oil and gas pipelines.

    (a) The Act of March 11, 1904 (33 Stat. 65), as amended by the Act 
of March 2, 1917 (39 Stat. 973; 25 U.S.C. 321), authorizes right-of-way 
grants for oil and gas pipelines across tribal, individually owned and 
Government-owned land. Rights-of-way granted under that act shall be 
subject to the provisions of this section as well as other pertinent 
sections of this part 169. Except when otherwise determined by the 
Secretary, rights-of-way granted for such purposes under the Act of 
February 5, 1948 (62 Stat. 17; 25 U.S.C. 323-328) shall also be

[[Page 518]]

subject to the provisions of this section.
    (b) Rights-of-way, granted under aforesaid Act of March 11, 1904, as 
amended, for oil and gas pipelines, pumping stations or tank sites shall 
not extend beyond a term of 20 years and may be extended for another 
period of not to exceed 20 years following the procedures set out in 
Sec. 169.19 of this part.
    (c) All oil or gas pipelines, including connecting lines, shall be 
buried a sufficient depth below the surface of the land so as not to 
interfere with cultivation. Whenever the line is laid under a road or 
highway, the right-of-way for which has been granted under an approved 
application pursuant to an act of Congress, its construction shall be in 
compliance with the applicable Federal and State laws; during the period 
of construction, at least one-half the width of the road shall be kept 
open to travel; and, upon completion, the road or highway shall be 
restored to its original condition and all excavations shall be 
refilled. Whenever the line crosses a ravine, canyon, or waterway, it 
shall be laid below the bed thereof or upon such superstructure as will 
not interfere with the use of the surface.
    (d) The size of the proposed pipeline must be shown in the 
application, on the maps, and in the engineer's affidavit and 
applicant's certificate. The application and maps shall specify whether 
the pipe is welded, screw-joint, dresser, or other type of coupling. 
Should the grantee of an approved right-of-way desire at any time to lay 
additional line or lines of pipe in the same trench, or to replace the 
original line with larger or smaller pipe, written permission must first 
be obtained from the Secretary and all damages to be sustained by the 
owners must be paid in advance in the amount fixed and determined by the 
Secretary.
    (e) Applicants for oil or gas pipeline rights-of-way may apply for 
additional land for pumping stations or tank sites. The maps shall show 
clearly the location of all structures and the location of all lines 
connecting with the main line. Applicants for lands for pumping stations 
or tank sites shall execute and file a stipulation agreeing as follows:
    (1) Upon abandonment of the right-of-way to level all dikes, fire-
guards, and excavations and to remove all concrete masonry foundations, 
bases, and structural works and to restore the land as nearly as may be 
possible to its original condition.
    (2) That a grant for pumping station or tank site purposes shall be 
subservient to the owner's right to remove or authorize the removal of 
oil, gas, or other mineral deposits; and that the structures for pumping 
station or tank site will be removed or relocated if necessary to avoid 
interference with the exploration for or recovery of oil, gas, or other 
minerals.
    (f) Purely lateral lines connecting with oil or gas wells on 
restricted lands may be constructed upon filing with the Secretary a 
copy of the written consent of the Indian owners and a blueprint copy of 
a map showing the location of the lateral. Such lateral lines may be of 
any diameter or length, but must be limited to those used solely for the 
transportation of oil or gas from a single tract of tribal or 
individually owned land to another lateral or to a branch of the main 
line.
    (g) The applicant, by accepting a pipeline right-of-way, thereby 
agrees that the books and records of the applicant shall be open to 
inspection by the Secretary at all reasonable times, in order to obtain 
information pertaining in any way to oil or gas produced from tribal or 
individually owned lands or other lands under the jurisdiction of the 
Secretary.



Sec. 169.26  Telephone and telegraph lines; radio, television, and other 
communications facilities.

    (a) The Act of February 15, 1901 (31 Stat. 790), as amended by the 
Act of March 4, 1940 (54 Stat. 41; 43 U.S.C. 959); the Act of March 4, 
1911 (36 Stat. 1253), as amended by the Act of May 27, 1952 (66 Stat. 
95; 43 U.S.C. 961); and the Act of March 3, 1901 (31 Stat. 1083; 25 
U.S.C. 319), authorize right-of-way grants across tribal, individually 
owned, and Government-owned land for telephone and telegraph lines and 
offices, for poles and lines for communication purposes, and for radio, 
television, and

[[Page 519]]

other forms of communication transmitting, relay, and receiving 
structures and facilities. Rights-of-way granted under these acts shall 
be subject to the provisions of this section as well as other pertinent 
sections of this part 169. Except when otherwise determined by the 
Secretary, rights-of-way granted for such purposes under the Act of 
February 5, 1948 (62 Stat. 17; 25 U.S.C. 323--328), shall also be 
subject to the provisions of this section.
    (b) A right-of-way granted under the said Act of March 4, 1911, as 
amended, shall be limited to a term not exceeding 50 years from the date 
of the issuance of such grant.
    (c) No right-of-way shall be granted for a width in excess of 50 
feet on each side of the centerline, unless special requirements are 
clearly set forth in the application which fully justify a width in 
excess of 50 feet on each side of the centerline.
    (d) Applicants engaged in the general telephone and telegraph 
business may apply for additional land for office sites. The maps 
showing the location of proposed office sites shall be filed separately 
from those showing the line of route, and shall be drawn to a scale of 
50 feet to an inch. Such maps shall show enough of the line of route to 
indicate the position of the tract with reference thereto. The tract 
shall be located with respect to the public survey as provided in Sec. 
169.8, and all buildings or other structures shall be platted on a scale 
sufficiently large to show clearly their dimensions and relative 
positions.
    (e) Rights-of-way for poles and lines for communication purposes, 
and for radio, television, and other forms of communication 
transmitting, relay, and receiving structures and facilities, shall be 
limited to 200 feet on each side of the centerline of such lines and 
poles; radio and television, and other forms of communication 
transmitting, relay, and receiving structures and facilities shall be 
limited to an area not to exceed 400 feet by 400 feet.



Sec. 169.27  Power projects.

    (a) The Act of March 4, 1911 (36 Stat. 1253), as amended by the Act 
of May 27, 1952 (66 Stat. 95; 43 U.S.C. 961), authorizes right-of-way 
grants across tribal, individually owned and Government-owned land for 
electrical poles and lines for the transmission and distribution of 
electrical power. Rights-of-way granted under that act shall be subject 
to the provisions of this section as well as other pertinent sections of 
this part 169. Except when otherwise determined by the Secretary, 
rights-of-way granted for such purposes under the Act of February 5, 
1948 (62 Stat. 17; 25 U.S.C. 323--328) shall also be subject to the 
provisions of this section.
    (b) All applications, other than those made by power-marketing 
agencies of the Department of the Interior, for authority to survey, 
locate, or commence construction work on any project for the generation 
of electric power, or the transmission or distribution of electrical 
power of 66 kV or higher involving Government-owned lands shall be 
referred to the Office of the Assistant Secretary of the Interior for 
Water and Power Resources or such other agency as may be designated for 
the area involved, for consideration of the relationship of the proposed 
project to the power development program of the United States. Where the 
proposed project will not conflict with the program of the United 
States, the Secretary, upon notification to the effect, may then proceed 
to act upon the application. In the case of necessary changes respecting 
the proposed location, construction, or utilization of the project in 
order to eliminate conflicts with the power development program of the 
United States, the Secretary shall obtain from the applicant written 
consent to or compliance with such requirements before taking further 
action on the application.
    (c) A right-of-way granted under the said Act of March 4, 1911, as 
amended, shall be limited to a term not exceeding 50 years from the date 
of the issuance of such grant.
    (d) Rights-of-way for power lines shall be limited to those widths 
which can be justified and in no event shall exceed a width of 200 feet 
on each side of the centerline.
    (e) The applicant shall make provision, or bear the reasonable cost 
(as may be determined by the Secretary)

[[Page 520]]

of making provision, for avoiding inductive interference between any 
proj ect transmission line or other project works constructed, operated, 
or maintained by it on the right-of-way authorized under the grant and 
any radio installation, telephone line, or other communication 
facilities now or hereafter constructed and operated by the United 
States or any agency thereof. This provision shall not relieve the 
applicant from any responsibility or requirement which may be imposed by 
other lawful authority for avoiding or eliminating inductive 
interference.
    (f) An applicant for a right-of-way for a transmission line across 
Government-owned lands having a voltage of 66 kV or more must, in 
addition to the stipulation required by Sec. 169.5, execute and file 
with its application a stipulation agreeing to accept the right-of-way 
grant subject to the following conditions:
    (1) The applicant agrees that, in the event it becomes necessary for 
the United States to acquire the applicant's transmission line or 
facilities constructed on or across such right-of-way, the United States 
reserves the right to acquire such line or facilities at a sum to be 
determined upon by a representative of the applicant, a representative 
of the Secretary of the Interior, and a third representative to be 
selected by the other two for the purpose of determining the value of 
such property thus to be acquired by the United States.
    (2) To allow the Department of the Interior to utilize for the 
transmission of electrical power any surplus capacity of the line in 
excess of the capacity needed by the holder of the grant for the 
transmission of electrical power in connection with the applicant's 
operations, or to increase the capacity of the line at the Department's 
expense and to utilize the increased capacity for the transmission of 
electrical power. Utilization by the Department of surplus or increased 
capacity shall be subject to the following terms and conditions:
    (i) When the Department desires to utilize surplus capacity thought 
to exist in a line, notification will be given to the applicant and the 
applicant shall furnish to the Department within 30 days a certificate 
stating whether the line has any surplus capacity not needed by the 
applicant for the transmission of electrical power in connection with 
the applicant's operations, and, if so, the extent of such surplus 
capacity.
    (ii) In order to utilize any surplus capacity certified by the 
applicant to be available, or any increased capacity provided by the 
Department at its own expense, the Department may interconnect its 
transmission facilities with the applicant's line in a manner 
conformable to approved standards of practice for the interconnection of 
transmission circuits.
    (iii) The expense of interconnection will be borne by the 
Department, and the Department will at all times provide and maintain 
adequate switching, relaying, and protective equipment so as to insure 
that the normal and efficient operation of the applicant's line will not 
be impaired.
    (iv) After any interconnection is completed, the applicant shall 
operate and maintain its line in good condition; and, except in 
emergencies, shall maintain in a closed position all connections under 
the applicant's control between the applicant's line and the 
interconnecting facilities provided by the Department.
    (v) The interconnected power systems of the Department and the 
applicant will be operated in parallel.
    (vi) The transmission of electrical power by the Department over the 
applicant's line will be effected in such manner and quantity as will 
not interfere unreasonably with the applicant's use and operation of the 
line in accordance with the applicant's normal operating standards, 
except that the Department shall have the exclusive right to utilize any 
increased capacity of the line which has been provided at the 
Department's expense.
    (vii) The applicant will not be obligated to allow the transmission 
over its line by the Department of electrical power to any person 
receiving service from the applicant on the date of the filing of the 
application for a grant, other than persons entitled to statutory 
preference in connection with the distribution and sale of electrical 
power by the Department.

[[Page 521]]

    (viii) The Department will pay to the applicant an equitable share 
of the total monthly cost of maintaining and operating the part of the 
applicant's line utilized by the Department for the transmission of 
electrical power, the payment to be an amount in dollars representing 
the same proportion of the total monthly operation and maintenance cost 
of such part of the line as the maximum amount in kilowatts of the power 
transmitted on a scheduled basis by the Department over the applicant's 
line during the month bears to the total capacity in kilowatts of that 
part of the line. The total monthly cost may include interest and 
amortization, in accordance with the system of accounts prescribed by 
the Federal Power Commission, on the applicant's net total investment 
(exclusive of any investment by the Department) in the part of the line 
utilized by the Department.
    (ix) If, at any time subsequent to a certification by the applicant 
that surplus capacity is available for utilization by the Department, 
the applicant needs for the transmission of electrical power in 
connection with its operations the whole or any part of the capacity of 
the line theretofore certified as being surplus to its needs, the 
applicant may modify or revoke the previous certification by giving the 
Secretary of the Interior 30 months' notice, in advance, of the 
applicant's intention in this respect. After the revocation of a 
certificate, the Department's utilization of the particular line will be 
limited to the increased capacity, if any, provided by the Department at 
its expense.
    (x) If, during the existence of the grant, the applicant desires 
reciprocal accommodations for the transmission of electrical power over 
the interconnecting system of the Department to its line, such 
reciprocal accommodations will be accorded under terms and conditions 
similar to those prescribed in this paragraph with respect to the 
transmission by the Department of electrical power over the applicant's 
line.
    (xi) The terms and conditions prescribed in this paragraph may be 
modified at any time by means of a supplemental agreement negotiated 
between the applicant and the Secretary of the Interior or his designee.
    (g) Applicants may apply for additional lands for generating plants 
and appurtenant facilities. The lands desired for such purposes may be 
indicated on the maps showing the definite location of the right-of-way, 
but separate maps must be filed therefor. Such maps shall show enough of 
the line of route to indicate the position of the tract with respect to 
said line. The tract shall be located with respect to the public survey 
as provided in Sec. 169.8, and all buildings or other structures shall 
be platted on a scale sufficiently large to show clearly their 
dimensions and relative positions.

[33 FR 19803, Dec. 27, 1968, as amended at 38 FR 14680, June 4, 1973. 
Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 169.28  Public highways.

    (a) The appropriate State or local authorities may apply under the 
regulations in this part 169 for authority to open public highways 
across tribal and individually owned lands in accordance with State 
laws, as authorized by the Act of March 3, 1901 (31 Stat. 1084; 25 
U.S.C. 311).
    (b) In lieu of making application under the regulations in this part 
169, the appropriate State or local authorities in Nebraska or Montana 
may, upon compliance with the requirements of the Act of March 4, 1915 
(38 Stat. 1188), lay out and open public highways in accordance with the 
respective laws of those States. Under the provisions of that act, the 
applicant must serve the Secretary with notice of intention to open the 
proposed road and must submit a map of definite location on tracing 
linen showing the width of the proposed road for the approval of the 
Secretary prior to the laying out and opening of the road.
    (c) Applications for public highway rights-of-way over and across 
roadless and wild areas shall be considered in accordance with the 
regulations contained in part 265 of this chapter.

[[Page 522]]



PART 170_ROADS OF THE BUREAU OF INDIAN AFFAIRS--Table of Contents




                  Construction and Maintenance of Roads

Sec.
170.1 Purpose.
170.2 Definitions.
170.3 Construction and improvement.
170.4 Approval of road construction activities.
170.4a Selection of road construction projects.
170.4b What formula will BIA use to distribute $25 million of fiscal 
          year 2004 Indian Reservation Roads Program funds?
170.5 Right-of-way.
170.5a Employment of Indians.
170.6 Maintenance of Indian roads.
170.6a Contributions from tribes.
170.7 Cooperation with States.
170.8 Use of roads.
170.9 Roadless and wild areas.

                    Public Hearings on Road Projects

170.10 Purpose and objectives.
170.11 Criteria.
170.12 Need for public hearing determined.
170.13 Notice of road construction projects.
170.14 Notice of public hearing.
170.15 Record of hearing proceedings.
170.16 Conducting the public hearing.
170.17 Written statements.
170.18 Hearing statement.
170.19 Appeals.

    Authority: 36 Stat. 861; 78 Stat. 241, 253, 257; 45 Stat. 750 (25 
U.S.C. 47; 42 U.S.C. 2000e(b), 2000e-2(i); 23 U.S.C. 101(a), 208, 308), 
unless otherwise noted.

    Source: Sections 170.1 to 170.9, 39 FR 27132, July 25, 1974, unless 
otherwise noted. Redesignated at 47 FR 13327, Mar. 30, 1982.

                  Construction and Maintenance of Roads



Sec. 170.1  Purpose.

    The regulations in this part govern the planning, design, 
construction, maintenance and general administration of certain Indian 
reservation roads and bridges.



Sec. 170.2  Definitions.

    As used in this part:
    (a) Commissioner means the Commissioner of Indian Affairs.
    (b) Superintendent means the Agency Superintendent at all locations, 
with the exception that at the Navajo Reservation this term shall mean 
the Area Director or his designated representative for public hearings 
on arterial roads which cross Agency boundaries of jurisdiction.
    (c) State means a State or territory or political subdivision 
thereof.
    (d) Indian Reservation Roads and Bridges means roads and bridges 
that are located within or provide access to an Indian reservation or 
Indian trust land or restricted Indian land which is not subject to fee 
title alienation without the approval of the Federal Government, or 
Indian and Alaska Native villages, groups or communities in which 
Indians and Alaskan Natives reside, whom the Commissioner has determined 
are eligible for services generally available to Indians under Federal 
laws specifically applicable to Indians. (23 U.S.C. 101(a))
    (e) Indian and Alaskan Native villages, groups, or communities in 
which Indian or Alaska Natives reside means villages, groups or 
communities or portions of villages, groups, or communities in which the 
majority of the residents are Indians or Alaska Natives.
    (f) Federal-Aid Indian Road System means those Indian reservation 
roads and bridges for which financial aid for construction is available 
only from specific appropriations of Federal funds therefor and which 
are designated by the Bureau of Indian Affairs and the Federal Highway 
Administration. This term does not include roads or bridges on Indian 
reservations for which financial aid for construction and improvement is 
available to a State under the Federal-Aid Highway Act. (45 Stat. 750)
    (g) Construction means supervising, inspecting, actual building, and 
all expenses incidental to the construction and improvement of roads and 
bridges including the elimination of roadway hazards and the acquisition 
of rights-of-way.
    (h) Maintenance means the act of preserving the entire roadway, 
including surface, shoulders, roadsides, structures, and the necessary 
traffic control devices as nearly as possible in the as-built condition 
and to provide services for the satisfactory and safe use of such roads.



Sec. 170.3  Construction and improvement.

    Subject to the availability of appropriations for Indian reservation 
roads and bridges and any other contribution

[[Page 523]]

of State or Indian tribal lands, the Commissioner shall plan, survey, 
design and construct roads on the Federal-Aid Indian Road System to 
provide an adequate system of road facilities serving Indian lands.



Sec. 170.4  Approval of road construction activities.

    The Secretary of Transportation or his authorized representative 
shall approve the location, type, and design of all projects on the 
Federal-Aid Indian Road System before any construction expenditures are 
made. All such construction shall be under the general supervision of 
the Secretary of Transportation or his authorized representative.

(23 U.S.C. 208)



Sec. 170.4a  Selection of road construction projects.

    The Commissioner, who is responsible for the planning, surveys and 
design, shall keep the appropriate local tribal officials informed of 
all technical information relating to the project alternatives of 
proposed road developments. The Commissioner shall recommend to the 
tribe those proposed road projects having the greatest need as 
determined by the comprehensive transportation analysis. Tribes shall 
then establish annual priorities for road construction projects. Subject 
to the approval of the Commissioner, the annual selection of road 
projects for construction shall be performed by tribes. Funds available 
for the construction of roads on the Federal-Aid Indian Road System 
shall not be used for the capital improvement to privately-owned 
property. (39 Stat. 355)



Sec. 170.4b  What formula will BIA use to distribute $25 million of fiscal 
year 2004 Indian Reservation Roads Program funds?

    On December 10, 2003, we will distribute $25 million of fiscal year 
2004 IRR Program funds authorized under the Surface Transportation 
Extension Act of 2003, Pub. L. 108-88. We will distribute the funds to 
Indian Reservation Roads projects on or near Indian reservations using 
the relative need formula established and approved in January 1993. The 
formula has been modified to account for non-reporting States by 
inserting the latest data reported for those states for use in the 
relative need formula process.

[68 FR 67943, Dec. 5, 2003]

    Effective Date Note: At 68 FR 67943, Dec. 5, 2003, Sec. 170.4b was 
revised, effective Dec. 10, 2003 through Sept. 30, 2004.



Sec. 170.5  Right-of-way.

    (a) The procedure for obtaining permission to survey and for 
granting any necessary right-of-way are governed by part 169 of this 
chapter. Tribal consent as required under Sec. 169.3(a) may be made by 
public dedication where proper tribal authority exists. Before any work 
is undertaken for the construction of road projects, the Commissioner 
shall obtain the written consent of the Indian landowners. Where an 
Indian has an interest in tribal land by virtue of a land use 
assignment, such consent shall be obtained from both the landholder of 
the assignment and the Indian tribe. Right-of-way easements are to be on 
a form approved by the Commissioner.
    (b) If it appears that the road might be transferred to the tribe, 
the county or the State within 10 years, then before such construction 
is undertaken, right-of-way easements for the project shall be obtained 
in favor of the United States, its successors and assigns, with the 
right to construct, maintain, and repair improvements thereon and 
thereover, for such purposes and with the further right in the United 
States, its successors and assigns, to transfer the right-of-way 
easements by assignment, grant or otherwise.



Sec. 170.5a  Employment of Indians.

    The Bureau of Indian Affairs road program shall be administered in 
such a way as to provide training and employment of Indians. The 
Commissioner may contract with tribes and Indian-owned construction 
companies, or the Commissioner may purchase materials, obtain equipment 
and employ Indian labor in the construction and maintenance of roads.

(36 Stat. 861; 78 Stat. 241, 253; 78 Stat. 257; 25 U.S.C. 47; 42 U.S.C. 
2000e(b), 2000e-2(i); 23 U.S.C. 208(c))

[[Page 524]]



Sec. 170.6  Maintenance of Indian roads.

    The administration and maintenance of Indian reservation roads and 
bridges is basically a function of the local Government. Subject to the 
availability of funds, the Commissioner shall maintain, or cause to be 
maintained, those approved roads on the Federal-Aid Indian Road System. 
The Commissioner may also maintain roads not on the Federal-Aid Indian 
Road System if such roads meet the definition of ``Indian reservation 
road and bridges'' and are approved for maintenance by the Commissioner. 
No funds authorized under 23 U.S.C. 208 are available for the 
maintenance of roads.



Sec. 170.6a  Contributions from tribes.

    The Commissioner may enter into agreements with an Indian tribe for 
a contribution from its tribal funds for the construction or maintenance 
of roads governed by regulations of this part. However, the tribe must 
be able to make such contributions without undue impairment of the 
necessary tribal functions.



Sec. 170.7  Cooperation with States.

    The Commissioner may enter into an agreement with the State for 
cooperation in the construction and the maintenance of certain Indian 
reservation roads and bridges, especially at those locations where road 
projects serve non-Indian land as well as Indian land.

(23 U.S.C. 208(d); 23 U.S.C.308(a))



Sec. 170.8  Use of roads.

    (a) Free public use is required on roads eligible for construction 
and maintenance with Federal funds under this part. When required for 
public safety, fire prevention or suppression, or fish or game 
protection, or to prevent damage to unstable roadbed, the Commissioner 
may restrict the use of them or may close them to public use.
    (b) The Commissioner shall conduct engineering and traffic analysis 
in accordance with established traffic engineering practices and 
determine the necessary maximum speed limit, maximum vehicular weight 
limit and other needed regulatory signs for roads which he maintains. 
The Commissioner shall make recommendations to local Government 
officials, who are authorized to enact and enforce ordinances on Indian 
lands, of his determination of the needed regulatory signs. Such 
regulatory signs as are authorized by established ordinances shall be 
erected by the Commissioner. At locations under the jurisdiction of the 
Court of Indian Offenses the Commissioner shall erect such regulatory 
signs as he determines are needed.



Sec. 170.9  Roadless and wild areas.

    Roads passable to motor transportation shall not be constructed 
under the regulations in this part within the boundaries of the roadless 
and wild areas established in part 265 of this chapter.

                    Public Hearings on Road Projects

    Authority: 45 Stat. 750; 25 U.S.C. 318a. Interpret or apply sec. 6, 
49 Stat. 1521, as amended; 25 U.S.C. 318b.

    Source: Sections 170.10 to 170.19, 39 FR 12733, Apr. 8, 1974, unless 
otherwise noted. Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 170.10  Purpose and objectives.

    The regulations in this subpart govern the calling and conducting of 
public hearings on Bureau of Indian Affairs road projects beginning with 
road projects scheduled to begin construction in Fiscal Year 1975, and 
thereafter. In order to promote coordination and comprehensive planning 
of construction activities on Indian reservations, the objectives for 
conducting public hearings on proposed road projects are to:
    (a) Inform interested persons of the road proposals which affect 
them and allow such persons to express their views at those stages of a 
project's development when the flexibility to respond to these views 
still exists.
    (b) Insure that road locations and designs are consistent with the 
reservations' objectives and with applicable Federal regulations.



Sec. 170.11  Criteria.

    A public hearing shall be held for each project that:
    (a) Is a new route being constructed,

[[Page 525]]

    (b) Would significantly change the layout or function of connecting 
or related roads or streets,
    (c) Would have an adverse effect upon adjacent real property, or
    (d) Is expected to be of a controversial nature.



Sec. 170.12  Need for public hearing determined.

    The Superintendent will call a meeting of representatives from the 
tribe, the Bureau of Indian Affairs, and other appropriate agencies to 
determine for each road project if a public hearing is needed. The 
determination will be based on the criteria given in Sec. 170.11. More 
than one public hearing may be held for a project if necessary.



Sec. 170.13  Notice of road construction projects.

    When no public hearing is scheduled for a road construction project, 
notice of the road construction project must be given at least 90 days 
before the date construction is scheduled to begin. Such notice should 
give the project name and location, the type of improvement planned, the 
date construction is scheduled to start, and the name and address of the 
office where more information can be obtained. The notice should be 
posted or published as determined by the Superintendent.



Sec. 170.14  Notice of public hearing.

    Notice will be given to inform the local public of the scheduled 
hearing. The notice should give the date, time, and place of the 
scheduled hearing; the project location; the proposed work to be done; 
the place where the preliminary plans may be reviewed; and the place 
where more information on the project can be obtained. The notice should 
be posted or published as determined by the Superintendent. Notice 
should be given at least 15 days before the scheduled date of the public 
hearing and again, at least 5 days before the hearing date.



Sec. 170.15  Record of hearing proceedings.

    A record of the hearing shall be made. The record shall include 
written statements submitted at the hearing or within 5 days following 
the hearing.



Sec. 170.16  Conducting the public hearing.

    (a) The Superintendent will appoint a tribal or Bureau of Indian 
Affairs official to preside at the public hearing and to maintain a 
medium for free and open discussion designed to reach early and amicable 
resolution of issues.
    (b) The Superintendent shall be responsible for maintaining a record 
of the hearing and shall make arrangements for appropriate officials to 
be present at the hearing to be responsive to questions which may arise.
    (c) The purpose of the hearing and an agenda of items to be 
discussed should be presented at the beginning of the hearing. It should 
be made clear at the hearing that the tribal chairman or his designated 
roads committee are the officials responsible for setting reservation 
road priorities and considering the merits of one road proj ect over 
another. Sufficient maps and project plans will be available at the 
hearing for public review. The hearing audience should be informed of 
the Bureau's road construction and right-of-way acquisition procedures 
on reservations. If the project will require relocating residences or 
businesses, information on relocation services and authorized payments 
will be given.



Sec. 170.17  Written statements.

    Written statements may be submitted as well as oral statements made 
at the public hearing. Written statements may also be submitted during 
the 5 days following the hearing.



Sec. 170.18  Hearing statement.

    If significant issues develop at the public hearing which remain 
unresolved, the Superintendent will issue a hearing statement 
summarizing the results of the public hearing and his determination as 
to the further action to be taken in connection with the proposed 
project. The hearing statement shall be issued within 20 days of the 
date of the public hearing. The hearing statement will be posted at the 
place where the hearing was held, and shall be sent to interested 
persons upon request. The hearing statement will outline procedures 
whereby the determination may be appealed.

[[Page 526]]



Sec. 170.19  Appeals.

    Any determination concerning the proposed road project may be 
appealed in accordance with the procedures set forth in part 2 of this 
title.



PART 171_OPERATION AND MAINTENANCE--Table of Contents




Sec.
171.1 Administration.
171.2 Irrigation season.
171.3 Domestic and stock water.
171.4 Farm units.
171.5 Delivery points.
171.6 Distribution and apportionment of water.
171.7 Application for and record of deliveries of irrigation water.
171.8 Surface drainage.
171.9 Structures.
171.10 Fencing.
171.11 Obstructions.
171.12 Rights-of-way.
171.13 Crops and statistical reports.
171.14 Carriage agreements and water right applications.
171.15 Leaching water.
171.16 Excess water.
171.17 Delivery of water.
171.18 Service or farm ditches.
171.19 Operation and maintenance assessments.
171.20 Water users' ledgers.
171.21 Health and sanitation.
171.22 Complaints.
171.23 Disputes.

    Authority: Secs. 1, 3, 36 Stat. 270, 272, as amended; 25 U.S.C. 385. 
Sec. 171.4(b) also issued under 34 Stat. 1024, 38 Stat. 583, and 68 
Stat. 1026. Secs. 171.4(a), 171.4(c), 171.16(b), and 171.17(f) also 
issued under sec. 11, 39 Stat. 142.

    Source: 42 FR 30362, June 14, 1977, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 171.1  Administration.

    (a) The Agency Superintendent, Proj ect Engineer or such official as 
authorized by the Area Director is the Officer-in-Charge of those Indian 
Irrigation Projects or units operated or subject to administration by 
the Bureau of Indian Affairs, whether or not each project or unit is 
specifically mentioned in this part. The Officer-in-Charge is fully 
authorized to administer, carry out, and enforce these regulations 
either directly or through employees designated by him. Such enforcement 
includes the refusal to deliver water.
    (b) The Officer-in-Charge is authorized to apply to irrigation 
subsistence units or garden tracts only those regulations in this part 
which in his judgment would be applicable in view of the size of the 
units and the circumstances under which they are operated.
    (c) The Officer-in-Charge is responsible for performing such work 
and taking any action which in his judgment is necessary for the proper 
operation, maintenance and administration of the irrigation project or 
unit. In making such judgments, the Officer-in-Charge consults with 
water users and their representatives, and with tribal council 
representatives, and seeks advice on matters of program priorities and 
operational policies. The Officer-in-Charge will be guided by the basic 
requirement that the operation will be so administered as to provide the 
maximum possible benefits from the project's or unit's constructed 
facilities. The operations will insure safe, economical, beneficial, and 
equitable use of the water supply and optimum water conservation.
    (d) The Secretary of the Interior reserves the right to exercise at 
any time all rights, powers, and privileges given him by law, and 
contracts with irrigation districts within Indian Irrigation Projects. 
Close cooperation between the Indian tribal councils, the project water 
users and the Officer-in-Charge is necessary and will be to the 
advantage of the entire project.
    (e) The Area Director, or his delegated representative, is 
authorized to fix as well as to announce, by notice published in the 
Federal Register, the annual operation and maintenance assessment rates 
for the irrigation projects or units within his area of responsibility. 
In addition to the rates, the notices will include such information as 
is pertinent to the assessment, payment, and collections of the charges 
including penalties and duty of water.
    (f) The rates will be based on a carefully prepared estimate of the 
cost of the normal operation and maintenance of the project. Normal 
operation and maintenance is defined for this purpose

[[Page 527]]

as the average per acre cost of all activities involved in delivering 
irrigation water and maintaining the facilities.
    (g) San Carlos Irrigation Project, Arizona. The administration, 
rights obligations and responsibilities for the operation and 
maintenance of this proj ect are set forth in the Repayment Contract 
dated June 8, 1931 as supplemented or amended, between the San Carlos 
Irrigation and Drainage District and the United States as authorized by 
the Act of June 7, 1924 (43 Stat. 475-476) and the Secretarial Order of 
June 15, 1938, title ``Order Defining Joint, District and Indian Works 
of the San Carlos Federal Irrigation Project: Turning over Operation and 
Maintenance of District Works to the San Carlos Irrigation and Drainage 
District.'' The regulations appearing in this subchapter apply only to 
the Indian lands works and in the San Carlos Irrigation Proj ect unless 
specified otherwise, and should not be interpreted or construed as 
amending or modifying the District Contract or the Secretarial Order.

[42 FR 30362, June 14, 1977, as amended at 43 FR 8799, Mar. 3, 1978. 
Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 171.2  Irrigation season.

    The irrigation season, when water shall be available for irrigation, 
will be established by the Officer-in-Charge.



Sec. 171.3  Domestic and stock water.

    Domestic or stock water will not be carried in the project's or 
unit's irrigation system when in the judgment of the Officer-in-Charge 
such practice will:
    (a) Interfere with the operation and maintenance of the system.
    (b) Be detrimental to or endanger the canal, lateral system and/or 
related structures.
    (c) Adversely affect the stored water supply for irrigation.



Sec. 171.4  Farm units.

    For the purpose of delivery of water and the administration of the 
project or unit, a farm unit is defined as follows:
    (a) For the Blackfeet, Crow, Fort Belknap, and Fort Peck Irrigation 
Projects, Montana, and the Colville Irrigation Project, Washington.
    (1) Forty (40) or more contiguous acres of land in single ownership 
with the exception that those original Indian allotments containing less 
than 40 irrigable acres of the same subdivision of the public land 
survey shall also be considered farm units.
    (2) Forty (40) or more contiguous acres of Indian-owned land under 
lease to one party.
    (3) Forty (40) contiguous acres in multiple ownership within the 
same forty (40) acre subdivision of the public land survey.
    (b) For the Fort Hall Irrigation Proj ect, Idaho:
    (1) Twenty (20) or more contiguous acres of land in single ownership 
covered by one or more water rights contracts.
    (2) Twenty (20) or more contiguous acres of Indian-owned land under 
lease to one party or being farmed by one Indian.
    (3) Ten (10) or more contiguous acres of subdivided land in multiple 
ownership.
    (c) For the Flathead Irrigation Proj ect, Montana: A contiguous area 
of land in single ownership containing not less than one forty (40) acre 
subdivision of the public land survey, or the original allotment as 
established by the Secretary of the Interior and as recorded or amended 
in the records of the Bureau of Land Management. In the case of leased 
land, it is defined as a contiguous area under a single lease. For 
Bureau of Land Management regulations pertaining to Flathead Proj ect, 
see 43 CFR 2211.8, Flathead Irrigation District, Montana.
    (d) For the Wapato Irrigation Proj ect (all units), Washington:
    (1) Eighty (80) or more contiguous acres in single ownership at the 
time of the establishment of the delivery system, or when subsequent 
changes of ownership result in larger tracts under single ownership and 
the owner requests that this land be treated as a farm unit, whether 
covered by one or more water right contracts.
    (2) Eighty (80) or more contiguous acres of Indian-owned land under 
lease to one person or being farmed by one Indian.

[[Page 528]]

    (3) Eighty (80) contiguous acres in multiple ownership: Provided, 
That such acreage shall be within the same eight (80) acre subdivision 
of the U.S. public land survey.
    (4) In all cases where an original Indian allotment consisted of 
less than eighty (80) contiguous acres, such original Indian allotment, 
whether (i) under single or multiple ownership and/or covered by one or 
more water right contracts, (ii) under lease to the same or different 
lessees, or (iii) farmed by one or more Indians, shall be treated as a 
farm unit.
    (e) For all other projects or units: An original allotment, 
homestead, an assignment of unallotted tribal lands, or a contiguous, 
development lease area.



Sec. 171.5  Delivery points.

    (a) Project operators will deliver irrigation water to one point on 
the boundary of each farm unit within the irrigation project. The 
Officer-in-Charge may establish additional delivery points when in his 
judgment it is impractical for the landowner to irrigate his farm unit 
from the one delivery point for such reasons as topography, isolation, 
or cost. When irrigation water is supplied from wells, the delivery 
point may be established at the well head. Where portions of a farm unit 
lie at an elevation too high to be watered by gravity flow from the 
normal elevation of water in the proj ect distribution system, no change 
will be made in the water level elevation of the project system so as to 
place water on such land. Where such land has been included in the 
project, the landowner may install and operate pumping equipment at his 
own expense to raise the water to such included land from a point 
designated by the Officer-in-Charge and in accordance with his 
specifications. If the landowner so installs pumping equipment and pays 
the construction and maintenance charges, the project will deliver the 
same amount of water per acre for this land as the project delivers at 
the delivery point for other lands on the project.
    (b) If a farm unit for which a project delivery point has been 
established is subsequently subdivided into smaller units by the owner 
or owners of the farm unit, the following provisions apply:
    (1) A plat or map of the subdivision must be recorded and a copy 
filed with the Officer-in-Charge. The plat or map must show how the 
irrigation water is to be delivered to the irrigable acres in the 
subdivision.
    (2) No further extensions or alterations in the project's system 
will be provided officials to serve the subdivided units, except as 
agreed to by the Officer-in-Charge and at the landowner's expense.
    (3) Any additional construction necessary to deliver irrigation 
water to these units must be mutually worked out between the original 
owner of the farm units and the new owners of the subdivided unit at 
their expense.
    (4) The project will not bear any responsibility for the operation 
and maintenance of such internal systems, or the division of irrigation 
water after it is delivered to the established proj ect delivery points.
    (c) Where project points of delivery have been established for farm 
units which are to be combined under lease or ownership into a singular 
farm unit to be irrigated by means of a sprinkler of more efficient 
system, the Officer-in-Charge may approve the removal or relocation of 
project delivery facilities. Such reorganization shall be at the expense 
of the landowners or lessees in conformance with established project 
standards and a time schedule which will not disrupt water delivery 
service to others on the system.
    (d) Where a reorganization has been approved and established as in 
Sec. 171.5(c), any reversion requiring reestablishment of removed or 
relocated project delivery facilities must be approved by the Officer-
in-Charge and conform to established project standards and time 
schedules which will not disrupt water delivery service to other water 
users on the system. All expenses incurred shall be the responsibility 
of the landowners or lessees.



Sec. 171.6  Distribution and apportionment of water.

    (a) The Officer-in-Charge will establish the method of and 
procedures for the delivery and distribution of the available irrigation 
water supply. He

[[Page 529]]

will endeavor to apportion the water at all times on a fair and 
equitable basis between all project water users entitled to the receipt 
of irrigation water.
    (b) Any person who interferes with the flow of water in or from the 
project's storage, carriage or lateral systems or opens or closes or in 
any other way changes the position of a headgate or any other water 
control structure without specific authority from the Officer-in-Charge 
or his designated representative will be subject to prosecution. Cutting 
a canal or lateral bank for the purpose of diverting water or placing an 
obstruction in such facilities in order to change the flow of water 
through a headgate will be considered a violation of this section.
    (c) San Carlos Irrigation Project, Arizona--(1) The portion of the 
project's common water supply available for the Indian lands will be 
distributed subject to beneficial use in equal per acre amounts to each 
acre under irrigation and cultivation, insofar as possible.
    (2) All water users (Indian and non-Indian) will be notified at the 
beginning of the irrigation season of the amount of stored and pumped 
water available. An apportionment of this water will be recommended by 
the Officer-in-Charge of the irrigation project to the approval of the 
Area Director. Subsequent apportionments may be made if and when 
additional water is available.
    (3) If it is determined by the Officer-in-Charge that there is water 
in excess of demands and available storage facilities, he will promptly 
notify all water users that such water is available. This water shall 
not be charged against the water apportionment of the land on which it 
is used.
    (d) Uintah Irrigation Project, Utah--(1) Water will be delivered to 
all lands under the Lakefork, Uintah and Whiterocks Rivers in accordance 
with the provisions of the decree of the Federal Court in the cases of 
the ``United States v. Dry Gulch Irrigation Company, et al.,'' and the 
``United States v. Cedarview Irrigation Company, et al.,'' which decrees 
fix the maximum duty of three (3) acre-feet per acre for the period from 
March 1 to November 1 of each year. The rate of delivery will be 
substantially in accordance with the following schedule except that it 
may be modified by the Officer-in-Charge at such times as changed 
climatic conditions and the water supply indicate that such modification 
would be beneficial to the project.

------------------------------------------------------------------------
                                             Acres per     Acre feet per
                  Period                    second-feet        acre
------------------------------------------------------------------------
Mar. 1 to 18.............................      None         None
Mar. 19 to 31............................     1,000            0.023
Apr. 1 to 10.............................       800             .025
Apr. 11 to 20............................       400             .050
Apr. 21 to 30............................       200             .099
May 1 to 10..............................       180             .110
May 11 to 20.............................       135             .147
May 21 to 31.............................        95             .229
June 1 to 20.............................        70             .566
June 21 to 31............................        85             .233
July 1 to 10.............................        90             .220
July 11 to 20............................        95             .208
July 21 to 31............................       100             .218
Aug. 1 to 10.............................       133             .147
Aug. 11 to 20............................       155             .128
Aug. 21 to 31............................       175             .124
Sept.1 to 10.............................       195             .101
Sept. 11 to 30...........................       220             .180
Oct. 1 to 10.............................       220             .090
Oct. 11 to 20............................       300             .066
Oct. 21 to 31............................       600             .036
                                          ----------------
 Total...................................  .............   3,000
------------------------------------------------------------------------

    (2) The rotation method will be used in distributing the water 
diverted from the Lakefork, Uintah and Whiterocks Rivers. Rotation 
schedules will be prepared under direction of the Officer-in-Charge and 
will be put into effect each season as soon as it is determined what 
acreage is to be irrigated. A written copy of the water schedule will be 
delivered to each water user showing the time that his turn starts on 
each tract and the duration of each turn.
    (3) In the event a rotation system is adopted for lands receiving 
water from the Duchesne River, the same procedure will be used as for 
the lands under the Lakefork, Uintah and White rocks Rivers. The 
Officer-in-Charge will advise all water users sufficiently in advance of 
the time the rotation schedule will go into effect.
    (e) Wapato Irrigation Project, Washington--(1) To protect adjoining 
lands against seepage and erosion by the excess use of water on the 
bench lands of the Wapato-Satus Unit, the maximum delivery of water to 
the bench lands shall not exceed 4.5 acre-feet per acre per season.
    (2) The rate of delivery to lands of the Satus 2 and Satus 3 
subunits shall

[[Page 530]]

not exceed one (1) cubic foot per second for each 50 irrigated acres.
    (3) The measurement and distribution of water for the lands on the 
Ahtanum Unit shall take place at the mutually advantageous points on the 
Ahtanum Main or Lower Canals. The conveyance of the water from these 
points of distribution to the irrigable acres of the farm units shall be 
entirely by and at the expense of the individual operators of the farms. 
However, when several such users join together to use one single channel 
for the conveyance of their water to the points of final diversion, they 
shall be jointly responsible for the channel of conveyance and the 
apportionment of the water to their respective farm units.



Sec. 171.7  Application for and record of deliveries of irrigation water.

    (a) Except when rotation schedules have been established and are 
being followed, water users in requesting the delivery of water will so 
notify the Officer-in-Charge or his designated representative by such 
means and with such advance notice as may be required by system 
operations and as established by the Officer-in-Charge. The request 
shall indicate the time the water is to be delivered, the period of time 
it will be used, the rate of flow desired, and where the water will be 
used.
    (b) It is the responsibility of the ditchriders during the 
irrigation season to maintain records showing the beginning and ending 
time of each water delivery, the amount of such delivery, and the 
estimated acreage irrigated. Such records are to be filed at the 
irrigation project office at the end of the season.
    (c) Water users on the Indian portion of the San Carlos Indian 
Irrigation Project will submit their requests for water to the 
Superintendent, Pima Agency.



Sec. 171.8  Surface drainage.

    (a) The water users will be responsible for all waste water 
resulting from their irrigation practices and for its conveyance to 
project canals, drains, wasteways or natural drainage channels. Any 
expenses involved in doing this will be borne by the water user. Waste 
water may be emptied into proj ect constructed ditches only at points 
designated by and in a manner approved by the Officer-in-Charge. In 
those situations involving two or more landowners and/or water users, it 
is their responsibility to work out a satisfactory arrangement among 
themselves for the conveyance of their waste water to project ditches or 
natural drainage channels.
    (b) Waste water shall not be permitted to flow upon or collect in 
road or project rights-of-way. Failure to comply with this requirement 
could result in the Officer-in-Charge refusing the further delivery of 
water.



Sec. 171.9  Structures.

    (a) All structures, including bridges or other crossings, which are 
necessary as a part of the project's irrigation and drainage system will 
be installed and maintained by the project.
    (b) During the construction of a new irrigation project or the 
extension of an existing project, bridges, crossings or other structures 
may be built by the Officer-in-Charge for private use where justified by 
severance agreements or other practical considerations. Title to these 
structures may or may not be vested in the United States depending upon 
the agreement with the landowner. Structures built partially or wholly 
in lieu of severance damages may be required to be maintained by the 
landowner even though title remains with the United States.
    (c) After a project is completed, additional structures crossing or 
encroaching on project canal, lateral or drain rights-of-way which are 
needed for private use may be constructed privately in accordance with 
plans approved by the Officer-in-Charge or by the project. In either 
case the cost of installing such structures will not be at the project's 
expense. Such structures will be constructed and maintained under 
revocable permits on proper forms issued by the Officer-in-Charge of the 
irrigation project to the party or parties desiring such structures.
    (d) It it is determined that a crossing constructed for and by the 
project is no longer needed for operation and maintenance of the system. 
It should be removed. However, if a private party, corporation, State, 
or other Federal

[[Page 531]]

entity desires to use the crossing, it may be transferred to such entity 
by the Officer-in-Charge under a permit which relieves the United States 
from any further liability or responsibility for the crossing, including 
its maintenance. The following provisions pertain:
    (1) Permits issued in such situations shall stipulate what is 
granted, and accepted by the permittee on the condition that the repair 
and maintenance of the structure shall be the duty of the permittee or 
his successors without cost to the irrigation project.
    (2) The permit shall further provide that if any such structure is 
not regularly used for a period of one year or is not properly 
maintained, the Officer-in-Charge may notify the person responsible for 
the structure's maintenance either to remove it or to correct any unsafe 
conditions within a period of 90 days.
    (3) If the structure is not removed or the unsafe condition 
corrected within the time allowed, it may be removed by the Officer-in-
Charge, the cost of such removal to be paid by the party responsible for 
the maintenance of the structure.



Sec. 171.10  Fencing.

    Fences across project rights-of-way will not be constructed without 
the approval of the Officer-in-Charge. The granting of such approval 
shall be dependent upon proper installation so as not interfere with the 
flow of water or the passage of project operators and equipment. In case 
an unauthorized fence is installed, the landowner shall be notified to 
remove it. If it is not removed within a reasonable period of time or 
satisfactory arrangements made with the Officer-in-Charge, it may be 
removed by project personnel at the landowner's expense.



Sec. 171.11  Obstructions.

    No obstructions of any kind including service or farm ditches, will 
be permitted upon project rights-of-way. Due notice will be given to an 
operator or landowner to remove any obstructions. If not removed within 
a reasonable period of time after notice is given, an obstruction will 
be removed by project forces at the expense of the operator or 
landowner.



Sec. 171.12  Rights-of-way.

    (a) Rights-of-way reserved for the project's irrigation system are 
of sufficient width to permit passage and use of equipment necessary for 
construction and proper operation and maintenance of the project's 
canals, laterals, and other irrigation works.
    (b) In the construction of new irrigation projects or extension of 
existing projects, rights-of-way which have not been reserved across 
Indian lands will be obtained in accordance with part 169 of this 
chapter.



Sec. 171.13  Crops and statistical reports.

    An annual project crops and statistical report shall be prepared by 
the Officer-in-Charge. The landowner or farm unit operator shall 
cooperate in furnishing such information as requested.



Sec. 171.14  Carriage agreements and water right applications.

    (a) Pine River Indian Irrigation Proj ect, Colorado. If the Area 
Director determines that there is sufficient capacity in the project's 
carriage and/or distribution system in excess of that required by the 
project he is authorized to enter into carriage agreements with non-
project water users to convey non-project water through project 
facilities for delivery to non-project lands.
    (b) Uintah Indian Irrigation Project, Utah. If the Superintendent 
determines that there is sufficient capacity in the irrigation project's 
carriage and/or distribution system in excess of that required by the 
project, he is authorized to enter into carriage agreements with non-
project water users to convey non-project lands. The Superintendent is 
also authorized to enter into carriage agreements with private 
irrigation or ditch companies for the conveyance of project water 
through non-project facilities for delivery to isolated Indian lands 
that cannot be served from project facilities.
    (c) Wapato Irrigation Project, Washington. The Project Engineer is 
authorized to execute water right applications submitted by landowners 
in the project on behalf of the Secretary of the Interior. Such 
applications should

[[Page 532]]

be submitted on the approved Departmental form.



Sec. 171.15  Leaching water.

    (a) The Officer-in-Charge is authorized to furnish irrigation water 
for leaching purposes without the payment of operation and maintenance 
charges to any Indian trust land, or patent in fee land covered by a 
repayment contract, as an aid to improve land within the project that is 
impregnated by alkali or in the development of new project land.
    (b) Delivery of such water will depend upon the availability of 
water and the preparation of a definite plan of operation by the land 
operator satisfactory to the Officer-in-Charge. In addition, the 
operator shall agree to meet such reasonable leaching and cropping 
activities as shall be prescribed by the Officer-in-Charge.
    (c) If prompt and beneficial use of the leaching water is not made 
by or before July 1 of the season for which it is granted, the Officer-
in-Charge may declare the leaching permit forfeited. The normal water 
charges will be considered as assessed and any delinquency enforced as 
though no leaching privilege had been granted.
    (d) In the case of patent in fee lands no water will be delivered 
for leaching purposes until the annual construction costs, when 
assessed, are paid.



Sec. 171.16  Excess water.

    (a) General. On those irrigation projects where a water duty or 
water quota has been established each water user will be notified when 
his quota of water, as covered by the basic assessment and as announced 
in the public notice, has been delivered. In such cases, additional 
irrigation water, if available, may be delivered providing the water 
user so requests it and agrees to pay for the excess water in accordance 
with the excess water provisions as set forth in the public notice.
    (b) Flathead Indian Irrigation Proj ect, Montana. (1) After an 
agreement has been reached by the Commissioners of the irrigation 
district and the Officer-in-Charge as to the duty of water on individual 
tracts where water users claim excess requirements above the duty of 
water established for the project on account of porous or gravelly 
soils, the Officer-in-Charge is authorized to increase the quantity of 
water to be delivered to such tracts.
    (2) The amount of water delivered in such cases will not exceed four 
(4) acre feet per assessable acre except in the Moiese Division where 
the amount shall not exceed six (6) acre feet providing there is 
sufficient water available in Lower Crow Reservoir without having to 
draw on the water supply for the Mission Valley Division.
    (3) The charge for such water shall be at the same general rate as 
established for project land not having such a porous or gravely 
condition.



Sec. 171.17  Delivery of water.

    (a) Irrigation water will not be delivered until the annual 
operation and maintenance assessments are paid in accordance with the 
established annual rate schedule as set forth in the public notice 
issued by the Area Director. Under the following special circumstances, 
this rule may be waived and water delivered to:
    (1) Trust and restricted lands farmed by the Indian owner when the 
Superintendent has certified that the operator is financially unable to 
pay the assessment and he has made arrangements to pay such assessments 
from the proceeds received from the sale of crops or from any other 
source of income. In such cases the unpaid charges will stand as a first 
lien against the land until paid but without penalty on account of 
delinquency.
    (2) Non-Indian lands on which there is an approved deferred payment 
contract executed under the provisions of the Act of June 22, 1936 (49 
Stat, 1803).
    (3) Land on which an adjustment or cancellation of unpaid 
assessments has been recommended and final action is pending.
    (b) Water will not be delivered to Indian trust or restricted land 
that are under lease approved by the Secretary of the Interior or his 
authorized representative acting under delegated authority until the 
lessee has paid the annual assessed operation and maintenance charges.
    (c) No water will be delivered to Indian trust land under a lease 
that has been negotiated by an Indian owner

[[Page 533]]

until the owner has paid the annual assessed operation and maintenance 
charges or has made satisfactory arrangements for their payment with the 
Superintendent who has so notified the Officer-in-Charge.
    (d) Water will not be delivered to any lands within an irrigation 
district which has executed a repayment contract with the United States 
until all irrigation charges, as assessed, are paid in accordance with 
the terms and conditions of the contracts and the public notice as 
issued by the Area Director.
    (e) All irrigation districts may make such rules and regulations as 
they may find necessary in regard to the delivery of the water to water 
users within the district who are delinquent in their payments to the 
district of assessed irrigation charges. Such rules and regulations will 
be adhered to by the Officer-in-Charge when it appears to be in the best 
interests of the United States and the district to do so.
    (f) Water will not be delivered to lands that are subject to 
construction assessments not paid in accordance with part 134 of this 
chapter.
    (g) Flathead Indian Irrigation Proj ect, Montana--(1) Secretarial 
Water Right holders. (i) For all acres recognized by the Secretary of 
the Interior as entitled to a ``Secretarial Water Right'', the Officer-
in-Charge is authorized to carry such water in the project's carriage 
and distribution system and deliver it: Providing, That landowner 
holding such a right requests it and his land is so located that the 
water can be delivered without undue expense to the project. Before this 
service is provided, the landowner must also agree to pay a minimum of 
fifty (50) percent of up to a maximum of one hundred (100) percent of 
the annual operation and maintenance charges as assessed against project 
lands in the same general area as his. Under such agreement the project 
will not be obligated to deliver more than that allowed for each acre of 
land under the Secretary's private water right findings less a 
proportionate share of the project's normal losses in transporting the 
water from the point of entry into the project's system to the point of 
delivery.
    (ii) ``Secretarial Water rights'' are defined as those rights 
allocated to Indian allotments by the Assistant Secretary of the 
Interior by his approval on November 25, 1921, of the findings of the 
Commission appointed by him to investigage the ``private rights'' on the 
Flathead Indian Reservation. Authority: Sec. 9, Act of May 29, 1908 (35 
Stat. 449).
    (2) Pump lands--Flathead Irrigation Project. (i) The Officer-in-
Charge is authorized to deliver irrigation water to lands (pump lands) 
within a project farm unit that are too high to be served from the 
project's gravity flow system: Providing, The holder of legal title to 
the lands so requests it in writing and agrees to have such land 
designated by the Secretary of the Interior or his authorized 
representative as a part of the irrigation project. Land so designated 
shall be subject to the assessment and payment of the pro rata per acre 
share of the project's construction, operation and maintenance costs the 
same as all other lands within the irrigation project in the same 
general area. In addition, such ``pump lands'' shall be obligated to pay 
an additional assessment on an annual basis as determined by the 
Officer-inCharge to defray the cost of pumping the water from the 
Flathead River for those lands in the Mission Valley Division, and from 
the Little Bitterroot Lake for lands in the Camas Division.
    (ii) At the time he submits the request, the landowner must also 
agree in writing to include the ``pump lands'' in an existing irrigation 
district or a district that may be subsequently formed pursuant to the 
laws of the State of Montana. This will not apply to Indian trust or 
restricted lands as such lands cannot be included within an irrigation 
district.
    (iii) A request for the inclusion of ``pump lands'' into the project 
will not be considered until the Officer-in-Charge determines that there 
is sufficient project water available to serve these lands without 
adversely affecting in any way the water entitlement of the designated 
project lands for which the project was designed and constructed.
    (iv) All costs incidental to the pumping and distribution of the 
delivered

[[Page 534]]

water from the project farm unit delivery point to the ``pump lands'' 
shall be borne by the landowner.



Sec. 171.18  Service or farm ditches.

    The service or farm ditches into which water is delivered from 
project canals or laterals must have ample capacity and be maintained by 
the water user in proper condition to receive water and convey it to the 
place of use with a minimum of loss. Water delivery will be refused to 
such ditches not satisfactorily maintained. Project irrigation water 
shall be put to beneficial use.



Sec. 171.19  Operation and maintenance assessments.

    (a) Operation and maintenance assessments will be levied against the 
acreage within each allotment, farm unit or tribal unit that is 
designated as assessable and to which irrigation water can be delivered 
by the project operators from the constructed works whether water is 
requested or not, unless specified otherwise in this section.
    (1) Colville Indian Irrigation Proj ect, Washington. Operation and 
maintenance assessments will be levied against all patent in fee and 
Indian trust lands to which water can be delivered for irrigation and 
for which an application for water has been made by the water user and 
approved by the Superintendent.
    (2) Wapato Irrigation Project-Toppenish-Simcoe Unit, Washington. 
Operation and maintenance assessments will be levied against all lands 
which can be irrigated from the constructed works for which application 
for water is made annually and approved by the Project Engineer.
    (b) Subdivided farm units--(1) General. (i) Where farm units, as 
defined in Sec. 171.4 have been subdivided into smaller units, the Area 
Director or such official as he may so delegate may, at his discretion, 
fix a higher operation and maintenance rate for such subdivided acreage 
than the rate fixed for the acreage in the original farm unit. In such 
cases the higher rate will also be announced in the annual public 
notice.
    (ii) In the event higher rates are fixed for a subdivided farm unit, 
the individual owners thereof may obtain for their lands the same rate 
as fixed for acreages within farm units not so divided by joining in a 
written contract with the other owners within the subdivided unit. Under 
such a contract, the various owners will appoint an agent in whom shall 
be vested full power and authority to enter into a contract with the 
Area Director, hereafter referred to as the Contracting Officer, or such 
official as he may so authorize, covering the water rights for the 
entire area of the several small acreages: Provided, however, Such 
contract must not represent less acreage than that included in the 
original farm unit unless a smaller unit has been established by project 
regulation as eligible for a subdivision contract; And provided further, 
That whether the contract involves acreage in one or more farm units, it 
must represent contiguous acreages.
    (iii) The contract between the agent of the owners of the small 
tracts and the Contracting Officer shall be executed on or before 
February 1 of the year preceding the next irrigation season. The agent 
shall at the time of the execution of this contract, on a form approved 
by the Secretary of the Interior, furnish a certified copy of the 
contract executed by the several landowners of the subdivided tract 
appointing the agent to act in their behalf.
    (iv) Any owner of a tract within a subdivided unit, with the written 
consent of the owners of a majority of the acreage, under a contract as 
set forth in paragraph (b)(1)(iii) of this section, may voluntarily 
withdraw from the contract by filing a written notice of his intent to 
withdraw with the Contracting Officer on or before February 1 of the 
year, such withdrawal is to be effective, together with the consent of 
the owners of the majority of the acreage endorsed thereon; Provided, 
That, the remaining acreage is contiguous; such withdrawal does not 
reduce the remaining acreage under the contract to less than the acreage 
included in the original farm unit before it was subdivided or less than 
the minimum acreage established on a project as eligible for a 
subdivision contract; and all irrigation charges due under said contract 
have been paid. Upon the receipt of said notice, the Contracting 
Officer, if

[[Page 535]]

the notice meets the requirements as herein provided, shall note his 
approval thereon and send a copy thereof to the agent of the landowners. 
Thereafter the land of the withdrawing owner shall no longer be subject 
to the contract.
    (v) If one or more owners under a contract desire to withdraw, and 
if, by so doing, it would reduce the total remaining contiguous acreage 
under the contract to less than the total acreage included in the 
original farm unit, or the minimum eligible acreage established on the 
project, the contract can be terminated. However, before such a 
termination can be approved, a written notice from the owners of the 
majority of the acreage must be filed with the Contracting Officer 
indicating their consent to and requesting his approval of the 
termination. The notice must be filed on or before February 1 of the 
year the termination is to become effective, and must include the 
payment of any irrigation charges then due under the existing contract. 
Upon the receipt of the written notice, the contracting Officer shall 
note his approval thereon provided that the requirements set forth 
herein are satisfied. A copy of the approved notice will be given to the 
agent of the landowners concerned.
    (2) Fort Hall Irrigation Project. The Superintendent, Fort Hall 
Agency, is authorized to approve contracts as set forth in this section 
as well as withdrawals or termination of such contracts. However, no 
contracts will be entered into if the total contiguous acreage is less 
than 10 acres.
    (3) Wapato Irrigation Project. The Project Engineer is authorized to 
approve contracts as set forth in paragraph (b) of this section, as well 
as withdrawals or termination of such contracts. However, no contracts 
will be entered into if the total contiguous acreage is less than 40 
acres.



Sec. 171.20  Water users' ledgers.

    (a) Water users' ledgers will be maintained by the Officer-in-Charge 
on all irrigation projects or units where irrigation assessments are 
levied and collected. Separate entries shall be made in the ledger for 
each farm tract, and bills issued to the owner or owners of record. When 
payment is received, it will be credited to the proper ledger account.
    (b) When Indian trust or restricted land is leased and the Officer-
in-Charge has been so advised by the Superintendent, irrigation bills 
will be submitted to the lessee. Upon receipt of payment, it will be 
credited to the Indian owner or owners of record in the ledger account.
    (c) On those projects where irrigation districts have been formed 
and have executed repayment contracts, irrigation bills will be rendered 
to the district. When payment is received, it will be credited to the 
proper ledger accounts.



Sec. 171.21  Health and sanitation.

    Use of Government storage reservoirs, canals, laterals or drains for 
disposal of sewage and trash shall not be permitted under any 
circumstances. If such conditions occur, and project forces are unable 
to correct them, the Officer-in-Charge shall request the Area Director 
to arrange for the necessary legal action.



Sec. 171.22  Complaints.

    All complaints must be made in writing to the Project Engineer or 
the Officer-in-Charge of the project.



Sec. 171.23  Disputes.

    In case of a dispute between a water user and the Project Engineer 
or Officer-in-Charge of the project concerning the application of the 
regulations of this part or a decision rendered by such official, the 
water user within 30 days may appeal to the Area Director. Further 
appeals may be made to the Commissioner of Indian Affairs pursuant to 
part 2 of this chapter.



PART 172_PUEBLO INDIAN LANDS BENEFITED BY IRRIGATION AND DRAINAGE WORKS 
OF MIDDLE RIO GRANDE CONSERVANCY DISTRICT, NEW MEXICO--Table of Contents




    Authority: 45 Stat. 312.



Sec. 172.1  Acreage designated.

    Pursuant to the provisions of the act of March 13, 1928 (45 Stat. 
312) the contract executed between the Middle Rio Grande Conservancy 
District of New

[[Page 536]]

Mexico and the United States under date of December 14, 1928, the 
official plan approved pursuant thereto, as modified, and the terms of 
section 24 of a contract between said parties dated September 4, 1936, 
dealing among other things with the payment of operation and maintenance 
and betterment assessments by the United States to the District, and 
section 24 of a similar contract dated April 8, 1938 executed by the 
representative of the United States, on this date, it is found that a 
total of 20,242.05 acres of Pueblo Indian lands of the Pueblos of 
Cochiti, Santo Domingo, San Felipe, Santa Ana, Sandia and Isleta is 
susceptible of economic irrigation and cultivation and is materially 
benefited by the works constructed by said District. This acreage is 
designated as follows:

Lands with recognized water rights not subject to operation and 
maintenance or betterment charges by the District and designated as 
``now irrigated''--8,847
Lands classified as ``newly reclaimed'' lands (exclusive of the 
purchased area)--11,074.4
Lands classified as newly reclaimed lands (the area recently 
purchased)--320.65
Total irrigable area materially benefited--20,242.05

[22 FR 10641, Dec. 24, 1957. Redesignated at 47 FR 13327, Mar. 30, 1982]



PART 173_CONCESSIONS, PERMITS AND LEASES ON LANDS WITHDRAWN OR ACQUIRED 
IN CONNECTION WITH INDIAN IRRIGATION PROJECTS--Table of Contents




Sec.
173.0 Scope.
173.1 Terms used.
173.2 Project engineer's authority.
173.3 Enforcement.
173.4 Permits subject to existing and future rights-of-way.
173.5 Plans, approval thereof.
173.6 Stock grazing.
173.7 Permits, transferable.
173.8 Applications.
173.9 Bonds.
173.10 Payments.
173.11 Supervision of permittees' rates.
173.12 Services from project.
173.13 Permit not a lease.
173.14 Further requirements authorized.
173.15 Permittee subject to State law.
173.16 Reserved area, Coolidge Dam.
173.17 Agricultural and grazing permits and leases.
173.18 Term and renewal of permits.
173.19 Improvements.
173.20 Revocation of permits.
173.21 Notice to vacate.
173.22 Disposition of revenue.
173.23 Organized tribes.

    Authority: 52 Stat. 193; 25 U.S.C. 390.

    Source: 22 FR 10642, Dec. 24, 1957, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 173.0  Scope.

    The regulations in this part are promulgated governing the granting 
of concessions, business, agricultural and grazing leases or permits on 
reservoir sites, reserves for canals or flowage areas, and other lands 
withdrawn or otherwise acquired in connection with the San Carlos, Fort 
Hall, Flathead and Duck Valley or Western Shoshone irrigation projects.



Sec. 173.1  Terms used.

    When used in this part ``Secretary'' refers to the Secretary of the 
Interior; ``project'' to the Federal Indian irrigation project on which 
concession, lease or permit is granted, and ``project engineer'' to the 
engineer in charge of said project.



Sec. 173.2  Project engineer's authority.

    The project engineer is the official charged with the responsibility 
for the enforcement of this part. He is vested with the authority to 
issue temporary concession permits to applicants for periods not to 
exceed 30 days. All except temporary permits shall become effective when 
approved by the Secretary.



Sec. 173.3  Enforcement.

    The project engineer shall enforce these and all project regulations 
now or hereafter promulgated by the Secretary. Willful violation or 
failure to comply with the provisions of this part and all proper orders 
of the project engineer shall be cause for revocation of the permit by 
the Secretary who shall be the judge of what constitutes such violation. 
The project engineer may suspend any permit for cause. The project 
engineer shall, immediately after suspending a permit, submit to the 
Secretary through the Commissioner of Indian Affairs a detailed report 
of the case, accompanied by his

[[Page 537]]

reasons for the action and his recommendations, for final action by the 
Secretary.



Sec. 173.4  Permits subject to existing and future rights-of-way.

    Use by the permittee of any land authorized under this part shall be 
subject to the right of the Secretary to establish trails, roads and 
other rights-of-way including improvements thereupon or through the 
premises, and the right to use same by the public. No interference shall 
be permitted with the continued use of all existing roads, trails and 
other rights-of-way and improvements thereon.



Sec. 173.5  Plans, approval thereof.

    No building or other structure shall be erected by permittee except 
in accordance with plans, specifications and locations approved by the 
project engineer. All premises and appurtenances shall be kept in a 
sanitary, safe and sightly condition.



Sec. 173.6  Stock grazing.

    Permittees may graze upon lands covered by such permits, such stock 
as may be required in connection with the purposes for which the permit 
is issued subject to such restrictions and limitations as may be 
prescribed by the project engineer.



Sec. 173.7  Permits, transferable.

    Permits may be transferred only with the approval of the Secretary.



Sec. 173.8  Applications.

    All applications for permits must be made on the approved form. The 
proj ect engineer will furnish copies of this form upon request. All 
applications must be executed in triplicate.



Sec. 173.9  Bonds.

    Except in cases of temporary concession permits, leases, permits, 
and traders' licenses granted under parts 166, 162, and 140 of this 
chapter, which are governed by the requirements of those parts, the 
applicant shall within 60 days after approval of the application furnish 
a surety bond for the faithful performance of the terms of the permit in 
an amount equal to the total sum accruing during the period of the 
permit. Such bond shall be executed by an approved surety company, or by 
at least three individual sureties, whose individual unencumbered assets 
are equal to double the amount of the bond. In the case of temporary 
concession permits, the permittee shall deposit at the time of receiving 
the permit, a sum equal to twice the rental, which sum shall, upon the 
expiration of the permit, be refunded to the permittee, if all the terms 
and conditions of the permit have been met; otherwise, such sum shall be 
retained as liquidated damages.



Sec. 173.10  Payments.

    Each permittee shall pay at the time of receiving the permit the 
first year's charge as fixed therein. When a permit extends over a 
period of years, the next and succeeding payments shall be due and 
payable annually in advance. The full amount accruing under a temporary 
permit shall be paid at the time the application is filed.



Sec. 173.11  Supervision of permittees' rates.

    All rates or charges collected by a permittee for services rendered 
by the permittee in the operation of the concession granted under a 
permit, must be submitted through the project engineer to the Secretary 
for approval. Copies of the approved rate schedule shall be posted in at 
least two conspicuous places on the premises. Approved rates may not be 
changed without first obtaining in the same manner a change in the rate 
schedule. The Secretary shall have the right to readjust rates charged 
from time to time and to amend or change any permit issued. Failure to 
comply with the approved rates automatically makes the permit subject to 
cancellation.



Sec. 173.12  Services from project.

    When the facilities of the project make it possible to supply water 
for domestic purposes, electricity or any other type of service to the 
permittee, the cost of connecting the project facilities shall be borne 
by the permittee and the work must be in accordance with standard 
practices and accepted by the project engineer, and as provided for in 
project regulations. All

[[Page 538]]

services rendered by the project to the permittee shall be paid for at 
the existing or modified schedule of rates; or if no schedule has been 
approved, at a rate to be approved by the Secretary which will 
reasonably reimburse the project for the cost of such services.



Sec. 173.13  Permit not a lease.

    Any permit issued under this part does not grant any leasehold 
interest nor cover the sale, barter, merchandising, or renting of any 
supplies or equipment except as therein specified. Any permittee who 
engages in trade with the Indians must also apply for and receive a 
trader's license as provided by part 140 of this chapter.



Sec. 173.14  Further requirements authorized.

    The project engineer is authorized to incorporate into any proposed 
permit to meet the needs of any particular case, subject to the approval 
of the Secretary, such further special requirements as may be agreed 
upon by him and the applicant, such requirements to be consistent with 
the general purposes of this part.



Sec. 173.15  Permittee subject to State law.

    The holder of any permit issued under this part shall be subject to 
and abide by the laws and regulations of the United States and State 
laws if applicable to the conduct of the particular business or activity 
conducted by the permittee. Violations of this section shall render the 
permit void but shall not release the permittee from any obligations 
arising thereunder.



Sec. 173.16  Reserved area, Coolidge Dam.

    No permit for any commercial business or other activity (except 
boating concessions confined to the Soda Spring Canyon) shall be issued 
to any applicant to operate within a radius of three-fourths of a mile 
from the center of the Coolidge Dam, Arizona.



Sec. 173.17  Agricultural and grazing permits and leases.

    (a) Permits or leases may be granted after the lands set forth in 
Sec. 173.0 have been classified as to use and then only for the purpose 
for which the land is classified. Permits for grazing lands suitable for 
division into range units shall be granted in accordance with part 166 
of this chapter; and agricultural lands and all other grazing lands 
shall be leased in accordance with part 166 of this chapter.
    (b) Lands for which leases or permits are granted pursuant to the 
terms and conditions of this part shall not be eligible for benefit 
payments under the provisions and conditions of the Crop Control and 
Soil Conservation Act of April 27, 1935 (49 Stat. 163; 16 U.S.C. 590a), 
as amended by the act of February 29, 1936 (49 Stat. 1148; 16 U.S.C. 
590g), and subsequent amendatory acts.



Sec. 173.18  Term and renewal of permits.

    No concession granted under the provisions of this part shall extend 
for a period in excess of 10 years. An application for the renewal of a 
lease, permit, or concession permit shall be treated in the same manner 
as an original application under this part. Should there be an 
application or applications other than the renewal application for a 
permit covering the same area, the renewal application may, if the 
applicant has met all the requirements of the expiring permit and has 
been a satisfactory permittee, be given preferential consideration for 
the renewal of the permit should the applicant meet the highest and most 
satisfactory offer contained in the several applications.



Sec. 173.19  Improvements.

    Title to improvements constructed on the premises by the permittee 
shall be fixed and determined by the terms of the permit.



Sec. 173.20  Revocation of permits.

    Any permit issued pursuant to this part may be revoked at any time 
within the discretion of the Secretary. Agricultural and grazing leases 
dealt with in Sec. 173.17 shall be subject to cancellation as provided 
for in the respective parts 162 and 166 of this chapter, and the 
conditions of the instruments executed pursuant thereto.

[[Page 539]]



Sec. 173.21  Notice to vacate.

    A permittee shall within 10 days after notification in writing of 
the cancellation of his permit by the Secretary, vacate the premises 
covered by the said permit. Any person occupying lands dealt with in the 
act of April 4, 1938 (52 Stat. 193) without an approved permit or lease 
shall be notified in writing by the project engineer of the requirements 
of this part and that for the failure of such person to comply with 
these requirements and receive a permit or lease within 60 days after 
receipt of the written notice shall constitute a willful violation of 
this part, and the project engineer shall submit promptly to the 
Commissioner of Indian Affairs a detailed report concerning the case, 
together with recommendations looking to the taking of appropriate legal 
action to remove such person from the area and to the collection of such 
funds to compensate for any use made of the property or damages suffered 
thereto.



Sec. 173.22  Disposition of revenue.

    Funds derived from concessions or leases under this part except 
those so derived from Indian tribal property withdrawn for irrigation 
purposes and for which the tribe has not been compensated, shall be 
available for expenditure under existing law in the operation and 
maintenance of the irrigation project on which collected and as provided 
for in part 161 of this chapter. Funds so derived from Indian tribal 
property withdrawn for irrigation purposes and for which the tribe has 
not been compensated, shall be deposited to the credit of the proper 
tribe.



Sec. 173.23  Organized tribes.

    Concessions and leases on tribal lands withdrawn or reserved for the 
purposes specified in the act of April 4, 1938 (52 Stat. 193) and dealt 
with in this part, of any Indian tribe organized under section 16 of the 
act of June 18, 1934 (48 Stat. 984; 25 U.S.C. 476) for which the tribe 
has not been compensated shall be made by the organized tribe pursuant 
to its constitution or charter: Provided, No lease or concession so made 
shall be inconsistent with the primary purpose for which the lands were 
reserved or withdrawn.



PART 175_INDIAN ELECTRIC POWER UTILITIES--Table of Contents




                      Subpart A_General Provisions

Sec.
175.1 Definitions.
175.2 Purpose.
175.3 Compliance.
175.4 Authority of area director.
175.5 Operations manual.
175.6 Information collection.

        Subpart B_Service Fees, Electric Power Rates and Revenues

175.10 Revenues collected from power operations.
175.11 Procedures for setting service fees.
175.12 Procedures for adjusting electric power rates except for 
          adjustments due to changes in the cost of purchased power or 
          energy.
175.13 Procedures for adjusting electric power rates to reflect changes 
          in the cost of purchased power or energy.

                Subpart C_Utility Service Administration

175.20 Gratuities.
175.21 Discontinuance of service.
175.22 Requirements for receiving electrical service.
175.23 Customer responsibilities.
175.24 Utility responsibilities.

              Subpart D_Billing, Payments, and Collections

175.30 Billing.
175.31 Methods and terms of payment.
175.32 Collections.

                Subpart E_System Extensions and Upgrades

175.40 Financing of extensions and upgrades.

                         Subpart F_Rights-of-Way

175.50 Obtaining rights-of-way.
175.51 Ownership.

                            Subpart G_Appeals

175.60 Appeals to the area director.
175.61 Appeals to the Interior Board of Indian Appeals.
175.62 Utility actions pending the appeal process.

    Authority: 5 U.S.C. 301; sec. 2, 49 Stat. 1039-1040; 54 Stat. 422; 
sec. 5, 43 Stat. 475-476; 45 Stat. 210-211; and sec. 7, 62 Stat. 273.

    Source: 56 FR 15136, Apr. 15, 1991, unless otherwise noted.

[[Page 540]]



                      Subpart A_General Provisions



Sec. 175.1  Definitions.

    Appellant means any person who files an appeal under this part.
    Area Director means the Bureau of Indian Affairs official in charge 
of a designated Bureau of Indian Affairs Area, or an authorized 
delegate.
    Customer means any individual, business, or government entity which 
is provided, or which seeks to have provided, services of the utility.
    Customer service means the assistance or service provided to 
customers, other than the actual delivery of electric power or energy, 
including but not limited to such items as: Line extension, system 
upgrade, meter testing, connections or disconnection, special meter-
reading, or other assistance or service as provided in the operations 
manual.
    Electric power utility or Utility means that program administered by 
the Bureau of Indian Affairs which provides for the marketing of 
electric power or energy.
    Electric service means the delivery of electric energy or power by 
the utility to the point of delivery pursuant to a service agreement or 
special contract. The requirements for such delivery are set forth in 
the operations manual.
    Officer-in-Charge means the individual designated by the Area 
Director as the official having day-to-day authority and responsibility 
for administering the utility, consistent with this part.
    Operations manual means the utility's written compilation of its 
procedures and practices which govern service provided by the utility.
    Power rates means the charges established in a rate schedule(s) for 
electric service provided to a customer.
    Service means electric service and customer service provided by the 
utility.
    Service agreement means the written form provided by the utility 
which constitutes a binding agreement between the customer and the 
utility for service except for service provided under a special 
contract.
    Service fees means the charge for providing administrative or 
customer service to customers, prospective customers, and other entities 
having business relationships with the utility.
    Special contract means a written agreement between the utility and a 
customer for special conditions of service. A special contract may 
include, but is not limited to, such items as: Street or area lights, 
traffic lights, telephone booths, irrigation pumping, unmetered 
services, system extensions and extended payment agreements.
    Utility office(s) means the current or future facility or facilities 
of the utility which are used for conducting general business with 
customers.



Sec. 175.2  Purpose.

    The purpose of this part is to regulate the electric power utilities 
administered by the Bureau of Indian Affairs.



Sec. 175.3  Compliance.

    All utility customers and the utilities are bound by the rule in 
this part.



Sec. 175.4  Authority of area director.

    The Area Director may delegate authority under this part to the 
Officer-in-Charge except for the authority to set rates as described in 
Sec. Sec. 175.10 through 175.13.



Sec. 175.5  Operations manual.

    (a) The Area Director shall establish an operations manual for the 
administration of the utility, consistent with this part and all 
applicable laws and regulations. The Area Director shall amend the 
operations manual as needed.
    (b) The public shall be notified by the Area Director of a proposed 
action to establish or amend the operations manual. Notices of the 
proposed action shall be published in local newspaper(s) of general 
circulation, posted at the utility office(s), and provided by such other 
means, if any, as determined by the Area Director. The notice shall 
contain: A brief description of the proposed action; the effective date; 
the name, address, and telephone number for addressing comments and 
inquiries; and the period of time in which comments will be received. 
Notices shall be published and posted at least 30 days before the 
scheduled effective date of the operations manual, or amendments 
thereto.

[[Page 541]]

    (c) After giving consideration to all comments received, the Area 
Director shall establish or amend the operations manual, as appropriate. 
A notice of the Area Director's decision and the basis for the decision 
shall be published and posted in the same manner as the previous 
notices.



Sec. 175.6  Information collection.

    The information collection requirements contained in Sec. 175.22 
have been approved by the Office of Management and Budget under 44 
U.S.C. 3501 et seq. and assigned clearance number 1076-0021. This 
information is being collected to provide electric power service to 
customers. Response to this request is ``required to obtain a benefit.'' 
Public reporting for this information collection is estimated to average 
.5 hours per response, including the time for reviewing instructions, 
gathering and maintaining data, and completing and reviewing the 
information collection. Direct comments regarding the burden estimate or 
any other aspect of this information collection to the Bureau of Indian 
Affairs, Information Collection Clearance Officer, room 337-SIB, 1849 C 
Street, NW., Washington, DC 20240; and the Office of Information and 
Regulatory Affairs, Project 1076-0021, Office of Management and Budget, 
Washington, DC 20502.



        Subpart B_Service Fees, Electric Power Rates and Revenues



Sec. 175.10  Revenues collected from power operations.

    The Area Director shall set service fees and electric power rates in 
accordance with the procedures in Sec. Sec. 175.11 and 175.12 to 
generate power revenue.
    (a) Revenues. Revenues collected from power operations shall be 
administered for the following purposes, as provided in the Act of 
August 7, 1946 (60 Stat. 895), as amended by the Act of August 31, 1951 
(65 Stat. 254):
    (1) Payment of the expenses of operating and maintaining the 
utility;
    (2) Creation and maintenance of reserve Funds to be available for 
making repairs and replacements to, defraying emergency expenses for, 
and insuring continuous operation of the utility;
    (3) Amortization, in accordance with repayment provisions of the 
applicable statutes or contracts, of construction costs allocated to be 
returned from power revenues; and
    (4) Payment of other expenses and obligations chargeable to power 
revenues to the extent required or permitted by law.
    (b) Rate and fee reviews. Rates and fees shall be reviewed at least 
annually to determine if project revenues are sufficient to meet the 
requirements set forth in paragraph (a) of this section. The review 
process shall be as prescribed by the Area Director.



Sec. 175.11  Procedures for setting service fees.

    The Area Director shall establish, and amend as needed, service fees 
to cover the expense of customer service. Service fees shall be set by 
unilateral action of the Area Director and remain in effect until 
amended by the Area Director pursuant to this section. At least 30 days 
prior to the effective date, a schedule of the service fees, together 
with the effective date, shall be published in local newspaper(s) of 
general circulation and posted in the utility office(s). The Area 
Director's decision shall be final for the Department of the Interior.



Sec. 175.12  Procedures for adjusting electric power rates except for 
adjustments due to changes in the cost of purchased power or energy.

    Except for adjustments to rates due to changes in the cost of 
purchased power or energy, the Area Director shall adjust electric power 
rates according to the following procedures:
    (a) Whenever the review described in Sec. 175.10(b) of this part 
indicates that an adjustment in rates may be necessary for reasons other 
than a change in cost of purchased power or energy, the Area Director 
shall direct further studies to determine whether a rate adjustment is 
necessary and, if indicated, prepare rate schedules.
    (b) Upon completion of the rate studies, and where a rate adjustment 
has been determined necessary, the Area Director shall conduct public 
information meetings as follows:

[[Page 542]]

    (1) Notices of public meetings shall be published in local 
newspapers of general circulation, posted at the utility office(s), and 
provided by such other means, if any, as determined by the Area 
Director. The notice shall provide: The date, time, and place of the 
scheduled meeting; a brief description of the action; the name, the 
address, and the telephone number for addressing comments and inquiries; 
and the period of time in which comments will be received. Notices shall 
be published and posted at least 15 days before the scheduled date of 
the meeting.
    (2) Written and oral statements shall be received at the public 
meetings. The record of the public meeting shall remain open for the 
filing of written statements for five days following the meeting.
    (c) After giving consideration to all written and oral statements, 
the Area Director shall make a decision about a rate adjustment. A 
notice of the Area Director's decision, the basis for the decision, and 
the adjusted rate schedule(s), if any, shall be published and posted in 
the same manner as the previous notices of public meetings.
    (d) Rates shall remain in effect until further adjustments are 
approved by the Area Director pursuant to this part.



Sec. 175.13  Procedures for adjusting electric power rates to reflect 
changes in the cost of purchased power or energy.

    Whenever the cost of purchased power or energy changes, the effect 
of the change on the cost of service shall be determined and the Area 
Director shall adjust the power rates accordingly. Rate adjustments due 
to the change in cost of purchased power or energy shall become 
effective upon the unilateral action of the Area Director and shall 
remain in effect until amended by the Area Director pursuant to this 
section. A notice of the rate adjustment, the basis for the adjustment, 
the rate schedule(s) shall be published and posted in the same manner as 
described in Sec. 175.12(c) of this part. The Area Director's decision 
shall be final for the Department of the Interior.



                Subpart C_Utility Service Administration



Sec. 175.20  Gratuities.

    All employees of the utility are forbidden to accept from a customer 
any personal compensation or gratuity rendered related to employment by 
the utility.



Sec. 175.21  Discontinuance of service.

    Failure of customer(s) to comply with utility requirements as set 
forth in this part and the operations manual may result in 
discontinuance of service. The procedure(s) for discontinuance of 
service shall be set forth in the operations manual.



Sec. 175.22  Requirements for receiving electrical service.

    In addition to the other requirements of this part, the customer, in 
order to receive electrical service, shall enter into a written service 
agreement or special contract for electrical power services.



Sec. 175.23  Customer responsibilities.

    The customer(s) of a utility subject to this part shall:
    (a) Comply with the National Electrical Manufacturers Association 
Standards and/or the National Electrical Code of the National Board of 
Fire Underwriters for Electric Wiring and Apparatus as they apply to the 
installation and operation of customer-owned equipment;
    (b) Be responsible for payment of all financial obligations 
resulting from receiving utility service;
    (c) Comply with additional requirements as further defined in the 
operations manual;
    (d) Not operate or handle the utility's facilities without the 
express permission of the utility;
    (e) Not allow the unauthorized-use of electricity; and
    (f) Not install or utilize equipment which will adversely affect the 
utility system or other customers of the utility.



Sec. 175.24  Utility responsibilities.

    A utility subject to this part shall:

[[Page 543]]

    (a) Endeavor to provide safe and reliable energy to its customers. 
The specific types of service and limitations shall be further defined 
in the operations manual;
    (b) Construct and operate facilities in accordance with accepted 
industry practice;
    (c) Exercise reasonable care in protecting customer-owned equipment 
and property;
    (d) Comply with additional requirements as further defined in the 
operations manual;
    (e) Read meters or authorize the customer(s) to read meters at 
intervals prescribed in the operations manual, service agreement, or 
special contract, except in those situations where the meter cannot be 
read due to conditions described in the operations manual;
    (f) Not operate or handle customer-owned equipment without the 
express permission of the customer, except to eliminate what, in the 
judgment of the utility, is an unsafe condition; and
    (g) Not allow the unauthorized use of electricity.



              Subpart D_Billing, Payments, and Collections



Sec. 175.30  Billing.

    (a) Metered customers. The utility shall render bills at monthly 
intervals unless otherwise provided in special contracts. Bills shall be 
based on the applicable rate schedule(s). Unless otherwise determined, 
the amount of energy and/or power demand used by the customer shall be 
as determined from the register on the utility's meter at the customer's 
point of delivery. A reasonable estimate of the amount of energy and/or 
power demand may be made by the utility in the event a meter is found 
with the seal broken, the utility's meter fails, utility personnel are 
unable to obtain actual meter registrations, or as otherwise agreed by 
the customer and the utility. Estimates shall be based on the pattern of 
the customer's prior consumption, or on an estimate of the customer's 
electric load where no billing history exists.
    (b) Unmetered customers. Bills shall be determined and rendered as 
provided in the customer's special contract.
    (c) Service fee billing. The utility shall render service fee bills 
to the customer(s) as a special billing.



Sec. 175.31  Methods and terms of payment.

    Payments shall be made in person or by mail to the utility's office 
designated in the operations manual. The utility may refuse, for cause, 
to accept personal checks for payment of bills.



Sec. 175.32  Collections.

    The utility shall attempt collection on checks returned by the 
customer's bank due to insufficient funds or other cause. An 
administrative fee shall be charged for each collection action taken by 
the utility other than court proceedings. An unredeemed check shall 
cause the customer's account to become delinquent, which may be cause 
for discontinuance of service. Only legal tender, a cashier's check, or 
a money order shall be accepted by the utility to cover an unredeemed 
check and associated charges.



                Subpart E_System Extensions and Upgrades



Sec. 175.40  Financing of extensions and upgrades.

    (a) The utility may extend or upgrade its electric system to serve 
additional loads (new or increased loads).
    (b) If funds are not available, but the construction would not be 
adverse to the interests of the utility, a customer may contract with 
the utility to finance all necessary construction.
    (1) A customer may be allowed to furnish required material or 
equipment for an extension or upgrade or to install such items or to pay 
the utility for such installation. Any items furnished or construction 
performed by the customer shall comply with the applicable plans and 
specifications approved by the utility.
    (2) The utility may arrange to refund all or part of a customer's 
payment of construction costs if additional customers are later served 
by the same extension or if the Area Director determines that the 
service will provide substantial economic benefits to the utility. All 
arrangements for refunds shall be stipulated in a special contract.

[[Page 544]]



                         Subpart F_Rights-of-Way



Sec. 175.50  Obtaining rights-of-way.

    Where there is no existing right(s)-of-way for the utility's 
facilities, the customer shall be responsible for obtaining all rights-
of-way necessary to the furnishing of service.



Sec. 175.51  Ownership.

    All rights-of-way, material, or equipment furnished and/or installed 
by a customer pursuant to this part shall be and remain the property of 
the United States.



                            Subpart G_Appeals



Sec. 175.60  Appeals to the area director.

    (a) Any person adversely affected by a decision made under this part 
by a person under the authority of an Area Director may file a notice of 
appeal with the Area Director within 30 days of the personal delivery or 
mailing of the decision. The notice of appeal shall be in writing and 
shall clearly identify the decision being appealed. No extension of time 
shall be granted for filing a notice of appeal.
    (b) Within 30 days after a notice of appeal has been filed, the 
appellant shall file a statement of reason(s) with the Area Director. 
The statement of reason(s) shall explain why the appellant believes the 
decision being appealed is in error, and shall include any argument(s) 
that the appellant wishes to make and any supporting document(s). The 
statement of reason(s) may be filed at the same time as the notice of 
appeal. If no statement of reason(s) is filed, the Area Director may 
summarily dismiss the appeal.
    (c) Documents are properly filed with the Area Director when they 
are received in the facility officially designated for receipt of mail 
addressed to the Area Director, or in the immediate office of the Area 
Director.
    (d) Within 30 days of filing of the statement of reason(s), the Area 
Director shall:
    (1) Render a written decision on the appeal, or
    (2) Refer the appeal to the Office of Hearings and Appeals Board of 
Indian Appeals for decision.
    (e) Where the Area Director has not rendered a decision with 30 days 
of filing of the statement of reasons, the appellant may file an appeal 
with the Office of Hearings and Appeals Board of Indian Appeals pursuant 
to Sec. 175.61.



Sec. 175.61  Appeals to the Interior Board of Indian Appeals.

    (a) An Area Director's decision under this part, except a decision 
under Sec. 175.11 or 175.13, may be appealed to the Office of Hearings 
and Appeals Board of Indian Appeals pursuant to the provisions of 43 CFR 
part 4, subpart D, except that a notice of appeal from a decision under 
Sec. 175.12 shall be filed within 30 days of publication of the 
decision. The address for the Interior Board of Indian Appeals shall be 
included in the operations manual.
    (b) Where the Area Director determines to refer an appeal to the 
Office of Hearings and Appeals Board of Indian Appeals, in lieu of 
deciding the appeal, he/she shall be responsible for making the 
referral.
    (c) If no appeal is timely filed with the Office of Hearings and 
Appeals Board of Indian Appeals, the Area Director's decision shall be 
final for the Department of the Interior.



Sec. 175.62  Utility actions pending the appeal process.

    Pending an appeal, utility actions relating to the subject of the 
appeal shall be as follows:
    (a) If the appeal involves discontinuance of service, the utility is 
not required to resume such service during the appeal process unless the 
customer meets the utility's requirements.
    (b) If the appeal involves the amount of a bill and:
    (1) The customer has paid the bill, the customer shall be deemed to 
have paid the bill under protest until the final decision has been 
rendered on the appeal; or
    (2) The customer has not paid the bill and the final decision 
rendered in the appeal requires payment of the bill, the bill shall be 
handled as a delinquent account and the amount of the bill shall be 
subject to interest, penalties, and administrative costs pursuant to 
section 3 of the Federal Claims Collection Act of 1966, As amended, 31 
U.S.C. 3717.

[[Page 545]]

    (c) If the appeal involves an electric power rate, the rate shall be 
implemented and remain in effect subject to the final decision on the 
appeal.



PART 179_LIFE ESTATES AND FUTURE INTERESTS--Table of Contents




Sec.
179.1 Purpose, scope, and information collection.
179.2 Definitions.
179.3 Application of State law.
179.4 Distribution of principal and income.
179.5 Value of life estates and remainders.
179.6 Notice of termination of life estate.

    Authority: 86 Stat. 530; 86 Stat. 744; 94 Stat. 537; 96 Stat. 2515; 
25 U.S.C. 2, 9, 372, 373, 487, 607, and 2201-11.

    Cross Reference: For regulations pertaining to income, rents, 
profits, bonuses and principal from Indian lands and the recording of 
title documents pertaining thereto, see parts 150, Land Records and 
Title Documents; 152, Issuance of Patents in Fee, Certificates of 
Competency, Removal of Restrictions, and Sale of Certain Indian Lands; 
162, Leasing and Permitting; 163, General Forest Regulations; 166, 
General Grazing Regulations; 169, Rights-of-Way over Indian Lands; 170, 
Roads of the Bureau of Indian Affairs; 212, Leasing of Allotted Lands 
for Mining; 213, Leasing of Restricted Lands of Members of the Five 
Civilized Tribes, Oklahoma, for Mining; 215, Lead and Zinc Mining 
Operations and Leases, Quapaw Agency.

    Source: 53 FR 25953, July 8, 1988, unless otherwise noted.



Sec. 179.1  Purpose, scope, and information collection.

    (a) These regulations set forth the authorities, policy and 
procedures governing the administration of life estates and future 
interests in Indian lands by the Secretary of the Interior. These 
regulations do not apply to any use rights assigned by tribes, in the 
exercise of their jurisdiction over tribal lands, to tribal members.
    (b) These regulations do not contain information collection 
requirements which require the approval of the Office of Management and 
Budget under 44 U.S.C. 3501 et seq.



Sec. 179.2  Definitions.

    Agency means an Indian Agency or other field unit of the Bureau of 
Indian Affairs having the Indian land under its immediate jurisdiction.
    Contract Bonus means cash consideration paid or agreed to be paid as 
incentive for execution of the contract.
    Income means the rents and profits of real property and the interest 
on invested principal.
    Indian Land means all lands held in trust by the United States for 
individual Indians or tribes; or all lands, titles to which are held by 
individual Indians or tribes, subject to Federal restrictions against 
alienation or encumbrance.
    Principal means the corpus and capital of an estate, including any 
payment received for the sale or diminishment of the corpus, as opposed 
to the income.
    Secretary means the Secretary of the Interior or authorized 
representative.
    Superintendent means the designated officer in charge of an Agency.



Sec. 179.3  Application of State law.

    In the absence of Federal law or Federally-approved tribal law to 
the contrary, the rules of life estates and future interests in the 
State in which the land is located shall be applied on Indian land. 
State procedural laws concerning the appointment and duties of private 
trustees shall not apply.



Sec. 179.4  Distribution of principal and income.

    In all cases where the document creating the life estate does not 
specify a distribution of proceeds; or where the vested remainderman and 
life tenant have not entered into a written agreement approved by the 
Secretary providing for the distribution of proceeds; or where, by such 
document or agreement or by the application of State law, the open mine 
doctrine does not apply; the Secretary shall:
    (a) Distribute all rents and profits, as income, to the life tenant.
    (b) Distribute any contract bonus one-half each to the life tenant 
and the remainderman.
    (c) In the case of mineral contracts, invest the principal, with 
interest income to be paid the life tenant during the life estate, 
except in those instances where the administrative cost of investment is 
disproportionately high, in which case Sec. 179.4(d) shall apply. The 
principal will be distributed

[[Page 546]]

to the remainderman upon termination of the life estate.
    (d) In all other instances, distribute the principal immediately 
according to the formulas set forth in Sec. 179.5, investing all 
proceeds attributable to any contingent remainderman in an account, with 
disbursement to take place upon determination of the contingent 
remainderman.



Sec. 179.5  Value of life estates and remainders.

    (a) The value of a life estate shall be determined by the formula: 
Value of Life Estate =P x L, where P =Value of principal, and L =Life 
estate factor for the age and sex of the life tenant, as shown in Column 
2 on tables A(1) and A(2).
    (b) The value of a remainder shall be determined by the formula: 
Value of Remainder =P x R, where P =Value of principal, and R =Remainder 
factor for the age and sex of the life tenant, as shown in Column 3 on 
tables A(1) and A(2).

 Table A(1)--Single Life Male, 6 Percent, Showing the Present Worth of a
            Life Estate Interest, and of a Remainder Interest
------------------------------------------------------------------------
                                               (2)--Life
                   (1)--Age                      estate   (3)--Remainder
------------------------------------------------------------------------
0............................................     0.9305       0.06295
1............................................     .96217        .03783
2............................................     .96170        .03830
3............................................     .96053        .03947
4............................................     .95905        .04095
5............................................     .95732        .04268
6............................................     .95540        .04460
7............................................     .95331        .04669
8............................................     .95195        .04895
9............................................     .94861        .05139
 
10...........................................     .94598        .05402
11...........................................     .94316        .05684
12...........................................     .94019        .05981
13...........................................     .93708        .06292
14...........................................     .93391        .06609
15...........................................     .93069        .06931
16...........................................     .92746        .07254
17...........................................     .92419        .07581
18...........................................     .92089        .07911
19...........................................     .91751        .08249
 
20...........................................     .91403        .08597
21...........................................     .91046        .08954
22...........................................     .90678        .09328
23...........................................     .90292        .09702
24...........................................     .89884        .10116
25...........................................     .89445        .10555
26...........................................     .88972        .11028
27...........................................     .88465        .11535
28...........................................     .87925        .12075
29...........................................     .87353        .12647
 
30...........................................     .86750        .13250
31...........................................     .86117        .13883
32...........................................     .85451        .14549
33...........................................     .84752        .15248
34...........................................     .84020        .15980
35...........................................     .83255        .16745
36...........................................     .82455        .17545
37...........................................     .81622        .18378
38...........................................     .80755        .19245
39...........................................     .79854        .20146
 
40...........................................     .78923        .21077
41...........................................     .77960        .22040
42...........................................     .76967        .23033
43...........................................     .75944        .24056
44...........................................     .74891        .25109
45...........................................     .73808        .26192
46...........................................     .72695        .27305
47...........................................     .71552        .28448
48...........................................     .70385        .29615
49...........................................     .69198        .30802
 
50...........................................     .67997        .32003
51...........................................     .66785        .33215
52...........................................     .65560        .34440
53...........................................     .64320        .35680
54...........................................     .63060        .36940
55...........................................     .61776        .38224
56...........................................     .60466        .39534
57...........................................     .59131        .40869
58...........................................     .57778        .42222
59...........................................     .56417        .43583
 
60...........................................     .55052        .44948
61...........................................     .53687        .46313
62...........................................     .52321        .47679
63...........................................     .50954        .49046
64...........................................     .49585        .50415
65...........................................     .48212        .51788
66...........................................     .46836        .53164
67...........................................     .45458        .54542
68...........................................     .44077        .55923
69...........................................     .42689        .57311
 
70...........................................     .41294        .58706
71...........................................     .39889        .60111
72...........................................     .38474        .61526
73...........................................     .37051        .62949
74...........................................     .35624        .64376
75...........................................     .34194        .65806
76...........................................     .32761        .67239
77...........................................     .31327        .68673
78...........................................     .29895        .70105
79...........................................     .28481        .71519
 
80...........................................     .27098        .72902
81...........................................     .25773        .74227
82...........................................     .24527        .75473
83...........................................     .23354        .76646
84...........................................     .22217        .77783
85...........................................     .21070        .78930
86...........................................     .19955        .80045
87...........................................     .18870        .81130
88...........................................     .17822        .82178
89...........................................     .16831        .83169
 
90...........................................     .15922        .84078
91...........................................     .15097        .84903

[[Page 547]]

 
92...........................................     .14350        .85650
93...........................................     .13681        .86319
94...........................................     .13081        .86919
95...........................................     .12535        .87465
96...........................................     .11998        .88002
97...........................................     .11487        .88513
98...........................................     .10999        .89001
99...........................................     .10532        .89468
 
100..........................................     .10087        .89913
101..........................................     .09661        .90339
102..........................................     .09250        .90750
103..........................................     .08846        .91154
104..........................................     .08439        .91561
105..........................................     .08000        .92000
106..........................................     .07471        .92529
107..........................................     .06718        .93282
108..........................................     .05426        .94574
109..........................................     .02830        .97170
------------------------------------------------------------------------


 Table A(2)--Single Life Female, 6 Percent, Showing the Present Worth of
           a Life Estate Interest, and of a Remainder Interest
------------------------------------------------------------------------
                                               (2)--Life
                   (1)--Age                      estate   (3)--Remainder
------------------------------------------------------------------------
0............................................    0.95383       0.04617
1............................................     .97370        .02630
2............................................     .97372        .02628
3............................................     .97308        .02692
4............................................     .97217        .02783
5............................................     .97110        .02890
6............................................     .96989        .03011
7............................................     .96853        .03147
8............................................     .96703        .03297
9............................................     .96541        .03459
 
10...........................................     .96365        .03635
11...........................................     .96176        .03824
12...........................................     .95975        .04025
13...........................................     .95764        .04236
14...........................................     .95543        .04457
15...........................................     .95314        .04686
16...........................................     .95076        .04924
17...........................................     .94829        .05171
18...........................................     .94572        .05428
19...........................................     .94303        .05697
 
20...........................................     .94021        .05979
21...........................................     .93724        .06276
22...........................................     .93412        .06588
23...........................................     .93085        .06915
24...........................................     .92739        .07261
25...........................................     .92375        .07625
26...........................................     .91993        .08007
27...........................................     .91591        .08409
28...........................................     .91168        .08832
29...........................................     .90725        .09275
30...........................................     .90259        .09741
 
31...........................................     .89773        .10227
32...........................................     .89265        .10735
33...........................................     .88733        .11267
34...........................................     .88176        .11824
35...........................................     .87593        .12407
36...........................................     .86985        .13015
37...........................................     .86349        .13651
38...........................................     .85687        .14313
39...........................................     .84998        .15002
40...........................................     .84281        .15719
 
41...........................................     .83536        .16464
42...........................................     .82764        .17236
43...........................................     .81962        .18038
44...........................................     .81131        .18869
45...........................................     .80269        .19731
46...........................................     .79374        .20626
47...........................................     .78448        .21552
48...........................................     .77488        .22512
49...........................................     .76498        .23502
50...........................................     .75476        .24524
 
51...........................................     .74423        .25577
52...........................................     .73339        .26661
53...........................................     .72220        .27780
54...........................................     .71062        .28938
55...........................................     .69859        .30141
56...........................................     .68612        .31388
57...........................................     .67320        .32680
58...........................................     .65988        .34012
59...........................................     .64622        .35378
60...........................................     .63226        .36774
 
61...........................................     .61803        .38197
62...........................................     .60352        .39648
63...........................................     .58871        .41129
64...........................................     .57355        .42645
65...........................................     .55803        .44197
66...........................................     .54211        .45789
67...........................................     .52583        .47417
68...........................................     .50924        .49076
69...........................................     .49241        .50759
70...........................................     .47540        .52460
 
71...........................................     .45823        .54177
72...........................................     .44088        .55912
73...........................................     .42341        .57659
74...........................................     .40587        .59413
75...........................................     .38833        .61167
76...........................................     .37073        .62927
77...........................................     .35307        .64693
78...........................................     .33546        .66454
79...........................................     .31811        .68189
80...........................................     .30117        .69883
 
81...........................................     .28489        .71511
82...........................................     .26935        .73065
83...........................................     .25439        .74561
84...........................................     .23956        .76044
85...........................................     .22441        .77559
86...........................................     .21010        .78990
87...........................................     .19674        .80326
88...........................................     .18431        .81569
89...........................................     .17285        .82715
90...........................................     .16241        .83759
 
91...........................................     .15301        .84699
92...........................................     .14470        .85530
93...........................................     .13741        .86259
94...........................................     .13103        .86897
95...........................................     .12535        .87465
96...........................................     .11998        .88002

[[Page 548]]

 
97...........................................     .11487        .88513
98...........................................     .10999        .89001
99...........................................     .10532        .89468
 
100..........................................     .10087        .89913
101..........................................     .09661        .90339
102..........................................     .09250        .90750
103..........................................     .08846        .91154
104..........................................     .08439        .91561
105..........................................     .08000        .92000
106..........................................     .07471        .92529
107..........................................     .06718        .93282
108..........................................     .05426        .94574
109..........................................     .02830        .97170
------------------------------------------------------------------------



Sec. 179.6  Notice of termination of life estate.

    Upon receipt of a renunciation of interest or notice of death of an 
Indian or non-Indian who died possessed of a life estate in Indian land, 
the Superintendent having jurisdiction shall file a copy of the 
renunciation or death certificate or other evidence of death with the 
appropriate Bureau of Indian Affairs' Land Titles and Records Office for 
recording.



PART 181_INDIAN HIGHWAY SAFETY PROGRAM--Table of Contents




Sec.
181.1 Purpose.
181.2 Definitions.
181.3 Am I eligible to receive a program grant?
181.4 How do I obtain an application?
181.5 How are applications ranked?
181.6 How are applicants informed of the results?
181.7 Appeals.

    Authority: 23 U.S.C. 402; 25 U.S.C. 13.

    Source: 62 FR 55331, Oct. 24, 1997, unless otherwise noted.



Sec. 181.1  Purpose.

    This part will assist the BIA Indian Highway Safety Program 
Administrator to disperse funds DOT/NHTSA has made available. The funds 
assist selected tribes with their proposed Highway Safety Projects. 
These projects are designed to reduce traffic crashes, reduce impaired 
driving crashes, increase occupant protection education, provide 
Emergency Medical Service training, and increase police traffic 
services.



Sec. 181.2  Definitions.

    Appeal means a written request for review of an action or the 
inaction of an official of the BIA that is claimed to adversely affect 
the interested party making the request.
    Applicant means an individual or persons on whose behalf an 
application for assistance and/or services has been made under this 
part.
    Application means the process through which a request is made for 
assistance or services.
    Grant means a written agreement between the BIA and the governing 
body of an Indian tribe or Indian organization wherein the BIA provides 
funds to the grantee to plan, conduct, or administer specific programs, 
services, or activities and where the administrative and programmatic 
provisions are specifically delineated.
    Grantee means the tribal governing body of an Indian tribe or Board 
of Directors of an Indian organization responsible for grant 
administration.
    Recipient means an individual or persons who have been determined as 
eligible and are receiving financial assistance or services under this 
part.



Sec. 181.3  Am I eligible to receive a program grant?

    The Indian Highway Safety Program grant is available to any 
federally recognized tribe. Because of the limited financial resources 
available for the program, the Bureau of Indian Affairs (BIA) is unable 
to award grants to all applicants. Furthermore, some grant recipients 
may only be awarded a grant to fund certain aspects of their proposed 
tribal projects.



Sec. 181.4  How do I obtain an application?

    BIA mails grant application packages for a given fiscal year to all 
federally recognized tribes by the end of February of the preceding 
fiscal year. Additional application packages are available from the 
Program Administrator, Indian Highway Safety Program, P.O. Box 2003, 
Albuquerque, New Mexico 87103. Each application package

[[Page 549]]

contains the necessary information concerning the application process, 
including format, content, and filing requirements.



Sec. 181.5  How are applications ranked?

    BIA ranks each timely filed application by assigning points based 
upon four factors.
    (a) Factor No. 1--Magnitude of the problem (Up to 50 points 
available). In awarding points under this factor, BIA will take into 
account the following:
    (1) Whether a highway safety problem exists.
    (2) Whether the problem is significant.
    (3) Whether the proposed tribal project will contribute to 
resolution of the identified highway safety problem.
    (4) The number of traffic accidents occurring within the applicant's 
jurisdiction over the previous 3 years.
    (5) The number of alcohol-related traffic accidents occurring within 
the applicant's jurisdiction over the previous 3 years.
    (6) The number of reported traffic fatalities occurring within the 
applicant's jurisdiction over the previous 3 years.
    (7) The number of reported alcohol-related traffic fatalities 
occurring within the applicant's jurisdiction over the previous 3 years.
    (b) Factor No. 2--Countermeasure selection (Up to 40 points 
available). In awarding points under this factor, BIA will take into 
account the following:
    (1) Whether the countermeasures selected are the most effective for 
the identified highway safety problem.
    (2) Whether the countermeasures selected are cost effective.
    (3) Whether the applicant's objectives are realistic and attainable.
    (4) Whether the applicant's objectives are time framed and, if so, 
whether the time frames are realistic and attainable.
    (c) Factor No. 3--Tribal Leadership and Community Support (Up to 10 
points available). In awarding points under this factor, BIA will take 
into account the following:
    (1) Whether the applicant proposes using tribal resources in the 
project.
    (2) Whether the appropriate tribal governing body supports the 
proposal plan, as evidenced by a tribal resolution or otherwise.
    (3) Whether the community supports the proposal plan, as evidenced 
by letters or otherwise.
    (d) Factor No. 4--Past Performance (+ or -10 points available). In 
awarding points under this factor, BIA will take into account the 
following:
    (1) Financial and programmatic reporting requirements.
    (2) Project accomplishments.



Sec. 181.6  How are applicants informed of the results?

    BIA will send a letter to all applicants notifying them of their 
selection or non-selection for participation in the Indian Highway 
Safety Program for the upcoming fiscal year. BIA will explain to each 
applicant not selected for participation the reason(s) for non-
selection.



Sec. 181.7  Appeals.

    You may appeal actions taken by BIA officials under this part by 
following the procedures in 25 CFR part 2.



PART 183_USE AND DISTRIBUTION OF THE SAN CARLOS APACHE TRIBE DEVELOPMENT 
TRUST FUND AND SAN CARLOS APACHE TRIBE LEASE FUND--Table of Contents




                         Subpart A_Introduction

Sec.
183.1 What is the purpose of this part?
183.2 What terms do I need to know?
183.3 Does the American Indian Trust Fund Management Reform Act of 1994 
          apply to this part?

                    Subpart B_Trust Fund Disposition

                       Use of Principal and Income

183.4 How can the Tribe use the principal and income from the Trust 
          Fund?

                         Clearance Requirements

183.5 What documents must the Tribe submit to request money from the 
          Trust Fund?
183.6 How long will it take to get a decision?
183.7 What would cause the Secretary to disapprove a request?

                               Limitations

183.8 How can the Tribe spend funds?

[[Page 550]]

                    Subpart C_Lease Fund Disposition

                       Use of Principal and Income

183.9 Can the Tribe request the principal of the Lease Fund?
183.10 How can the Tribe use income from the Lease Fund?

                         Clearance Requirements

183.11 What documents must the Tribe submit to request money from the 
          Lease Fund?
183.12 How long will it take to receive a decision?
183.13 What would cause the Secretary to disapprove a request?

                               Limitations

183.14 What limits are there on how the Tribe can spend funds?

                            Subpart D_Reports

183.15 Must the Tribe submit any reports?
183.16 What information must be included in the Tribe's annual report?

                           Subpart E_Liability

183.17 If expenditures under this part lead to a claim or cause of 
          action, who is liable?
183.18 Information collection requirements

    Authority: Pub. L. 102-575, 106 Stat. 4740 et seq.

    Source: 66 FR 21088, Apr. 27, 2001, unless otherwise noted.



                         Subpart A_Introduction



Sec. 183.1  What is the purpose of this part?

    This part implements section 3707(e) of the San Carlos Apache Tribe 
Water Settlement Act (the Act), Public Law 102-575, 106 Stat. 4748, that 
requires regulations to administer the Trust Fund, and the Lease Fund 
established by the Act.



Sec. 183.2  What terms do I need to know?

    In this part:
    Administrative costs means any cost, including indirect costs, 
incurred by the Tribe reasonably related to an allowed use of funds 
under the Settlement Act, including indirect costs.
    Beneficial use means any use to which the Tribe's water entitlement 
is put that is authorized by the Settlement Act, the Settlement 
Agreement, or by the Tribal Council under the Settlement Act, the 
Settlement Agreement or otherwise permitted by law.
    CAP means the Central Arizona Project, a reclamation project 
authorized under title III of the Colorado River Basin Project Act of 
1968 (43 U.S.C. 1521 et seq.).
    Community development project or purpose means any business, 
recreational, social, health, education, environment, or general welfare 
project approved by the Tribal Council for the benefit of any community 
within the reservation.
    Economic development project or purpose means any commercial, 
industrial, agricultural, or business project approved by the Tribal 
Council for the purpose of profit to the Tribe.
    Income means interest or income earned or accrued on the principal 
of the Trust Fund or the Lease Fund and is available for distribution to 
the Tribe in accordance with the Settlement Act and this part. Beginning 
with calendar year 2001, any income that has been earned or has accrued 
on the principal of the Trust Fund or the Lease Fund and that has not 
been requested for distribution by the Tribe by December 31, shall 
become part of the principal of the Trust Fund or the Lease Fund on 
January 1 of the next calendar year.
    Lease Fund means the San Carlos Apache Tribe Lease Fund established 
in the Treasury of the United States under section 3711(d)(3)(E)(iv) of 
the Settlement Act.
    Principal means:
    (1) The amount of funds in the Trust Fund or the Lease Fund as of 
January 1, 2002; and
    (2) Any income thereon that is not distributed, and has been added 
to the principal, in accordance with the Settlement Act and this part.
    Pro forma budget means a budget, and operating statement, showing 
the estimated results for operating the economic development project for 
two years after injection of the principal or income into the operation.
    Secretary means the Secretary of the Interior or an authorized 
representative acting under delegated authority. The term ``Secretary':
    (1) Includes the Regional Director for the Western Regional Office 
of the Bureau of Indian Affairs; and

[[Page 551]]

    (2) Does not include the Superintendent of the San Carlos Agency of 
the Bureau of Indian Affairs.
    Settlement Act means the San Carlos Apache Tribe Water Settlement 
Act of 1992, Title XXXVII of Public Law 102-575, 106 Stat. 4740, and any 
amendments thereto.
    Settlement Agreement means the agreement and any amendments executed 
and approved in accordance with the Settlement Act.
    Tribe means the San Carlos Apache Tribe, a Tribe of Apache Indians, 
under the Apache Treaty, July 1, 1852, 10 Stat. 970, organized under 
section 16 of the Indian Reorganization Act of June 18, 1934 (48 Stat. 
987; 25 U.S.C. 476), and duly recognized by the Secretary of the 
Interior.
    Trust Fund means the San Carlos Apache Tribe Development Trust Fund 
established in the Treasury of the United States under section 3707(b) 
of the Settlement Act.
    We and us mean the Secretary of the Interior as defined in this 
section.



Sec. 183.3  Does the American Indian Trust Fund Management Reform Act 
of 1994 apply to this part?

    Yes. We will manage and make distributions from the Trust Fund in 
accordance with the American Indian Trust Funds Management Act of 1994 
(Management Act), except where the Management Act conflicts with the 
Settlement Act or this part. If there is a conflict, we will follow the 
provisions of the Settlement Act or this part.



                    Subpart B_Trust Fund Disposition

                       Use of Principal and Income



Sec. 183.4  How can the Tribe use the principal and income from the 
Trust Fund?

    The Tribe may use the principal and income from the Trust Fund in 
the following ways:
    (a) To put to beneficial use the water entitlement provided to the 
Tribe in the Settlement Act;
    (b) To defray the cost to the Tribe of CAP operation, maintenance, 
and replacement charges;
    (c) For economic development purposes; provided, however, that 
principal may only be used for long-term economic development projects 
and income may be used for other economic and community development 
purposes; and
    (d) For Administrative Costs reasonably related to the above uses.

                         Clearance Requirements



Sec. 183.5  What documents must the Tribe submit to request money from 
the Trust Fund?

    To request a distribution of principal or income from the Trust 
Fund, the Tribe must submit to us all of the following documents.
    (a) A certified copy of a duly enacted resolution of the Tribal 
Council requesting a distribution from the Trust Fund;
    (b) A written budget and supporting documentation, approved by the 
Tribal Council, showing precisely how the tribe will spend the money, 
including what amounts should come from principal and what amounts 
should come from income;
    (c) A pro forma budget for each identified economic development 
project, and a program budget for each identified community development 
project; and
    (d) A certification stating that the Tribe will use the funds in 
accordance with budgets submitted under this section.



Sec. 183.6  How long will it take to get a decision?

    Within 30 days of receiving the information required by Sec. 183.5 
we will approve your request if it complies with the Settlement Act and 
this part. If we disapprove your request we will do so in writing and 
will provide you with the reasons for disapproval.



Sec. 183.7  What would cause the Secretary to disapprove a request?

    We will only disapprove a request for the distribution of principal 
or income from the Trust Fund if the request does any of the following:
    (a) Fails to provide the documents identified in Sec. 183.5;
    (b) Fails to provide reports required under Sec. Sec. 183.15 and 
183.16; or
    (c) Includes a use requested or written budget that does not comply 
with a

[[Page 552]]

specific provision of the Settlement Act, or this part.

                               Limitations



Sec. 183.8  How can the Tribe spend funds?

    (a) The Tribe must spend principal or income distributed from the 
Trust Fund only in accordance with a written budget submitted under 
Sec. 183.5.
    (b) The Tribe must not spend the principal or income from the Trust 
Fund to make per capita payments to members of the Tribe.



                    Subpart C_Lease Fund Disposition

                       Use of Principal and Income



Sec. 183.9  Can the Tribe request the principal of the Lease Fund?

    No. We cannot distribute the principal from the Lease Fund to the 
Tribe.



Sec. 183.10  How can the Tribe use income from the Lease Fund?

    The Tribe may use income from the Lease Fund for the following 
purposes:
    (a) For economic development purposes;
    (b) For community development purposes; and
    (c) For administrative costs reasonably related to the above.

                         Clearance Requirements



Sec. 183.11  What documents must the Tribe submit to request money from 
the Lease Fund?

    To request a distribution of income from the Lease Fund, the Tribe 
must submit to us all of the following documents:
    (a) A certified copy of a duly enacted resolution of the Tribal 
Council requesting a distribution from the Lease Fund;
    (b) A pro forma budget for each identified economic development 
project and a program budget for each identified community development 
project, approved by the Tribal Council, showing precisely how the Tribe 
will spend the money;
    (c) Supporting documentation for the budgets required by paragraph 
(b) of this section, and
    (d) A certification stating that the Tribe will use the funds in 
accordance with budgets submitted under this section.



Sec. 183.12  How long will it take to receive a decision?

    Within 30 days of receiving the information required by Sec. 183.11 
we will approve your request if it complies with the Settlement Act and 
this part. If we disapprove your request we will do so in writing and 
will provide you with the reasons for disapproval.



Sec. 183.13  What would cause the Secretary to disapprove a request?

    We will only disapprove a request for distribution of income from 
the Lease Fund if the request does any of the following:
    (a) Fails to provide the documents identified in Sec. 183.5;
    (b) Fails to provide reports required under Sec. Sec. 183.15 and 
183.16; or
    (c) Includes a use requested or written budget that does not comply 
with a specific provision of the Settlement Act or this part.

                               Limitations



Sec. 183.14  What limits are there on how the Tribe can spend funds?

    (a) The Tribe must spend income distributed from the Lease Fund only 
in accordance with a written budget submitted under Sec. 183.5.
    (b) The Tribe must not spend the income from the Lease Fund to make 
per capita payments to members of the Tribe.



                            Subpart D_Reports



Sec. 183.15  Must the Tribe submit any reports?

    Yes. The Tribe must submit the following reports after receiving 
funds under this part:
    (a) An Annual Report, that must be submitted no later than December 
31 of each year; and
    (b) A Financial Audit, that must be submitted no later than March 1 
of each year.

[[Page 553]]



Sec. 183.16  What information must be included in the Tribe's annual report?

    The Tribe's annual report must contain the following information:
    (a) An accounting of the expenditures of funds distributed to the 
Tribe from the Trust Fund or the Lease Fund for the preceding 12 months;
    (b) A description, in detail, of how the Tribe has used the funds 
distributed from the Trust Fund or the Lease Fund consistently with the 
requirements in the Settlement Act, this part, and the budget approved 
by the Tribal Council and the Secretary; and
    (c) Sufficient documentation for us to determine that the Tribe has 
satisfied the requirements of paragraph (b) of this section.



                           Subpart E_Liability



Sec. 183.17  If expenditures under this part lead to a claim or cause of 
action, who is liable?

    The Tribe may be liable. The United States must not be liable for 
any claim or cause of action arising from the Tribe's use or expenditure 
of monies distributed from the Trust Fund or the Lease Fund.



Sec. 183.18  Information collection requirements

    The information collection requirements contained in this part do 
not meet the requirements of ``ten or more persons'' annually; 
therefore, the Office of Management and Budget does not need to clear 
the collection. You may direct comments concerning this information 
collection to the Bureau of Indian Affairs, Information Collection 
Control Officer, 1849 C Street, NW, Washington, DC 20240.

[[Page 554]]