[Title 25 CFR N]
[Code of Federal Regulations (annual edition) - April 1, 2004 Edition]
[Title 25 - INDIANS]
[Chapter I - BUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR]
[Subchapter N - ECONOMIC ENTERPRISES]
[From the U.S. Government Printing Office]


25INDIANS12004-04-012004-04-01falseECONOMIC ENTERPRISESNSUBCHAPTER NINDIANSBUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR
                    SUBCHAPTER N_ECONOMIC ENTERPRISES


PART 286_INDIAN BUSINESS DEVELOPMENT PROGRAM--Table of Contents




Sec.
286.1 Definitions.
286.2 Purpose.
286.3 Eligible applicants.
286.4 Eligible economic enterprises.
286.5 Information collection.
286.6 [Reserved]
286.7 Location of enterprise.
286.8 Priority criteria.
286.9 Environmental and flood disaster protection.
286.10 Preservation of historical and archeological data.
286.11 Management and technical assistance.
286.12 Content of application.
286.13-286.14 [Reserved]
286.15 Application procedures.
286.16 Grant approval authority.
286.17 Grant limitations and requirements.
286.18 Written notice.
286.19 [Reserved]
286.20 Disbursement of grant funds.
286.21 Return of unused funds.
286.22 Reports.

    Authority: 25 U.S.C. 1524.

    Source: 39 FR 44748, Dec. 27, 1974, unless otherwise noted. 
Redesignated at 47 FR 13328, Mar. 30, 1982.



Sec. 286.1  Definitions.

    As used in this part 286:
    Area Director means the Bureau of Indian Affairs official in charge 
of an area office or his authorized representative.
    Assistant Secretary means the Assistant Secretary--Indian Affairs of 
the United States Department of the Interior or the official in the 
Bureau of Indian Affairs to whom the Assistant Secretary has delegated 
authority to act on behalf of the Assistant Secretary.
    Cooperative Association means an association of individuals 
organized pursuant to state, Federal, or tribal law, for the purpose of 
owning and operating an economic enterprise for profit with profits 
distributed or allocated to patrons who are members of the organization.
    Corporation means an entity organized pursuant to state, Federal, or 
tribal law, with or without stock, for the purpose of owning and 
operating an economic enterprise.
    Economic enterprise means any Indian-owned, commercial, industrial, 
agricultural, or business activity established or organized for the 
purpose of profit, provided that eligible Indian ownership constitutes 
not less than 51 per centum of the enterprise.
    Grantee(s) means the recipient(s) of a nonreimburseable grant under 
this part.
    Indian means a person who is a member of an Indian tribe or a person 
of Alaska Native descent who is a shareholder in a corporation organized 
under the Alaska Native Claims Settlement Act (85 Stat. 688), as 
amended.
    Partnership means a form of business organization in which two or 
more legal persons are associated as co-owners for the purposes of 
business or professional activities for private pecuniary gain.
    Profits means the net income earned after deducting operating 
expenses from operating revenues.
    Reservation means Indian reservation, California rancheria, public 
domain Indian allotment, former Indian reservation in Oklahoma, and land 
held by Alaska Native groups incorporated under the provisions of the 
Alaska Native Claims Settlement Act (85 Stat. 688), as amended.
    Secretary means the Secretary of the Interior.
    Superintendent means the Bureau official in charge of a Bureau 
agency office or other local office reporting to an Area Director.
    Tribe means any Indian tribe, band, nation, rancheria, pueblo, 
colony or community, including any Alaska Native village or any 
regional, village, urban or group corporation as defined in or 
established pursuant to the Alaska Native Claims Settlement Act (85 
Stat. 688) as amended, which is recognized by the Federal Government as 
eligible for services from the Bureau of Indian Affairs.

[55 FR 36273, Sept. 5, 1990]

[[Page 716]]



Sec. 286.2  Purpose.

    The purpose of this part 286 is to prescribe the regulations and 
procedures under which non-reimbursable grants may be made to eligible 
applicants to stimulate and increase Indian entrepreneurship and 
employment through establishment, acquisition or expansion of profit-
making Indian-owned economic enterprises which will contribute to the 
economy of a reservation.



Sec. 286.3  Eligible applicants.

    Applications for grants may be accepted only from individual 
Indians, Indian tribes, Indian partnerships, corporations or cooperative 
associations authorized to do business under State, Federal, or Tribal 
law. These applicants must have a form of organization acceptable to the 
Assistant Secretary and unable to meet their total financing needs from 
their own resources and by loans from other sources such as banks, 
Farmers Home Administration, Small Business Administration, Production 
Credit Associations, and Federal Land Banks. Associations, corporations 
or partnerships shall be at least fifty-one percent owned by eligible 
Indians or an eligible Indian tribe. This Indian ownership must actively 
participate in the management and operation of the economic enterprise 
by representation on the board of directors of a corporation or 
cooperative association proportionate to the Indian ownership which will 
enable the Indian owner(s) to control management decisions. The legal 
organization documents will provide for the number of Indians which are 
to be on the board of directors, how they along with other directors 
will be elected or appointed and qualifications required as a condition 
for becoming a member of the board of directors. The legal organization 
documents shall provide safeguards which will prevent Indian ownership 
and control from decreasing below fifty-one percent. Evidence of Indian 
ownership in a cooperative association or corporation will be evidenced 
by stock ownership, if stock is or has been issued, or by other evidence 
satisfactory to the Assistant Secretary. Partnerships will be evidenced 
by written partnership agreements which show the percentage of Indian 
ownership, role and authority in making management decisions in 
controlling the operation of the economic enterprise.



Sec. 286.4  Eligible economic enterprises.

    An economic enterprise as defined in Sec. 286.1(k) is eligible to 
receive equity capital through non-reimbursable grants if it is or will 
be self-sustaining and profit-oriented and will create employment for 
Indians. In the case of Indian-owned cooperative associations, they must 
distribute or allocate profits for later distribution, to members who 
are patrons, unless prohibited from doing so by law.



Sec. 286.5  Information collection.

    (a) The collections of information contained in Sec. Sec. 286.12 
and 286.22 have been approved by the Office of Management and Budget 
under 44 U.S.C. 3501 et seq. and assigned clearance number 1076-0093. 
The information will be used to rate applicants in accordance with the 
priority criteria listed at 25 CFR 286.8. Response to this request is 
required to obtain a benefit in accordance with 25 U.S.C. 1521.
    (b) Public reporting for this information is estimated to average 45 
minutes per response, including the time for reviewing instructions, 
searching existing data sources, gathering and maintaining the data 
needed, and completing and reviewing the collection of information. Send 
comments regarding this burden estimate or any other aspect of this 
collection of information, including suggestions for reducing the 
burden, to the Information Collection Clearance Officer, Bureau of 
Indian Affairs, Mailstop 337-SIB, 18th and C Streets, NW., Washington, 
DC 20240; and the Office of Management and Budget, Paperwork Reduction 
Project (1076-0093), Washington, DC 20503.

[55 FR 36273, Sept. 5, 1990]



Sec. 286.6  [Reserved]



Sec. 286.7  Location of enterprise.

    To be eligible for a grant an economic enterprise must be located on 
an Indian reservation or located where it makes or will make an economic 
contribution to a nearby reservation by

[[Page 717]]

providing employment to tribal members residing thereon or by expending 
a portion of its income for materials or services on the reservation. 
Economic enterprises which are or will be operated on a reservation must 
comply with the requirements of applicable rules, resolutions or 
ordinances adopted by the governing body of the tribe, if applicable.



Sec. 286.8  Priority criteria.

    The following priority will be used in selecting economic 
enterprises for grant funding:
    (a) First priority. First priority will be given to economic 
enterprises located on a reservation that will:
    (1) Utilize Indian resources, both natural and human.
    (2) Create the highest ratio of Indian jobs to the total amount of 
dollars to be invested, including market value of materials and 
equipment contributed to the project.
    (3) Create the highest ratio of income to a tribe or its members in 
relation to the total amount of dollars to be invested, including market 
value of materials or equipment contributed to the project.
    (4) Generate the most non-Bureau financing.
    (b) Second priority. Second priority will be given to projects 
located in the immediate vicinity of a reservation that will:
    (1) Utilize Indian resources, both natural and human.
    (2) Create the highest ratio of Indian jobs to the total amount of 
dollars to be invested, including market value of materials and 
equipment contributed to the project.
    (3) Generate the most non-Bureau financing.



Sec. 286.9  Environmental and flood disaster protection.

    Grant funds will not be advanced until there is assurance of 
compliance with any applicable provisions of the Flood Disaster 
Protection Act of 1973 (Pub. L. 93-234), the National Environmental 
Policy Act (Pub. L. 91-190), 42 U.S.C. 4321 and Executive Order 11514.



Sec. 286.10  Preservation of historical and archeological data.

    The Assistant Secretary before approving a grant where the grant 
funds and/or the loan funds will be used to finance activities involving 
excavations, road construction, and land development or involving the 
disturbance of land on known or reported historical or archeological 
sites, will take appropriate action to assure compliance with applicable 
provisions of the Act of June 27, 1960 (74 Stat. 220 (16 U.S.C. 469)), 
as amended by the Act of May 24, 1974 (Pub. L. 93-291, 88 Stat. 174), 
relating to the preservation of historical and archeological data.



Sec. 286.11  Management and technical assistance.

    (a) Prior to and concurrent with the making of a grant to finance an 
Indian economic enterprise, the Assistant Secretary--Indian Affairs will 
insure that competent management and technical assistance is available 
to the grantee in the preparation of the application for a grant and/or 
administration of the funds granted, consistent with the grantee's 
knowledge and experience and the nature and complexity of the economic 
enterprise being financed. The competence of the management and 
technical assistance provided will be determined by the local agency 
superintendent after consultation with the applicant concerning his 
business needs.
    (b) The lender providing the loan funds under Sec. 286.17(b) to 
finance an economic enterprise will include with the grantee's 
application the need for equity capital, the lender's evaluation of the 
applicant's need for management and technical assistance, specific areas 
of need and whether the lender will provide such assistance to the 
applicant.

[39 FR 44748, Dec. 27, 1974. Redesignated at 47 FR 13328, Mar. 30, 1982, 
as amended at 55 FR 36274, Sept. 5, 1990]



Sec. 286.12  Content of application.

    Applications shall be on a form prescribed by the Assistant 
Secretary which shall at the minimum include:
    (a) Total capital requirement, including operating capital required 
until such time as the cash generated from

[[Page 718]]

operations will be sufficient to make the enterprise self-sustaining.
    (b) Amount of total financing required as well as what is obtainable 
from other sources, including the applicant's personal resources, and a 
statement of terms and conditions under which any borrowed portion is 
obtainable.
    (c) Capital deficiency, which will be the basis for the amount of 
grant requested.
    (d) Pro forma balance sheets and operating statements showing 
estimated expenses, income and net profit from operations for three 
years following receipt of the requested grant.
    (e) Annual operating statements and balance sheets, audited if 
available, for the prior two years or applicable years for enterprises 
already in operation.
    (f) Current financial statements, consisting of a balance sheet and 
operating statement.
    (g) A plan of operation which shall be acceptable to the lender 
making the loan and the Assistant Secretary.



Sec. Sec. 286.13-286.14  [Reserved]



Sec. 286.15  Application procedures.

    Applications are to be submitted to the Superintendent having 
administrative jurisdiction over the reservation on which an enterprise 
will be or is located. If the enterprise site is near two or more 
reservations, application is to be made to the Superintendent having 
administrative jurisdiction over the reservation nearest to the location 
of the enterprise which the enterprise will benefit economically.



Sec. 286.16  Grant approval authority.

    Applications for grants require approval by the Assistant Secretary.



Sec. 286.17  Grant limitations and requirements.

    (a) Grants will be made to assist in establishing new economic 
enterprises, or in purchasing or expanding established ones. However, a 
grant may be made only when in the opinion of the Assistant Secretary 
the applicant is unable to obtain adequate financing from other sources. 
Prior to making any grant, the Assistant Secretary shall assure that, to 
the extent practical, the applicant's own resources have been invested 
in the proposed project. The applicant shall not be required to invest 
own resources to the extent that they are already committed to endeavors 
deemed by the Assistant Secretary to be essential to the welfare of the 
applicant. If the information in an application, which must include 
personal financial statements, indicates that it may be possible for the 
applicant to obtain financing without a grant, the Assistant Secretary 
will require the applicant to furnish letters from two customary lenders 
in the area, if available, who are making loans for similar purpose, 
showing whether or not they will make a loan to the applicant for the 
total financing needed without a grant.
    (b) A grant may be made only to an applicant who is able to obtain 
at least 75 percent of the necessary financing from other sources.
    (c) No grant in excess of $250,000 may be made to an Indian tribe or 
in excess of $100,000 to an Indian individual, partnership, corporation, 
or cooperative association.
    (d) Revolving loan funds as prescribed in title I of the Indian 
Financing Act of 1974 and guaranteed or insured loans as prescribed in 
title II of said Act may not be used as the sources of the loan portion 
of the total financing requirement if financing from other governmental 
or institutional lenders is available on reasonable terms and 
conditions. If a loan is not available from other sources, guaranteed or 
insured loans under the provisions of title II of said Act may then be 
considered. If a guaranteed or insured loan is not available loans under 
the provisions of title I of said Act may then be considered. Applicants 
for a loan from either source must meet the eligibility requirements for 
such loans.
    (e) A grant will not be approved unless there is assurance the 
applicant can and will be provided with needed competent technical and 
management assistance commensurate with the nature of the enterprise to 
be funded and the knowledge and management skills of the applicant.
    (f) Grant funds may not be used for refinancing or debt 
consolidation unless approval is justified and required

[[Page 719]]

due to the applicant's financial position and is clearly to the 
advantage of the grant applicant.
    (g) Ordinarily, not more than one grant will be made for a project. 
Nevertheless, in certain circumstances a second grant may be made to 
applicants for a new project or expansion of the original project. An 
additional grant will not be approved for an economic enterprise 
previously funded under the provisions of title IV of the Indian 
Financing Act of 1974 except for expanding a successful enterprise, 
provided the total of grants made shall not exceed $250,000 to an Indian 
tribe and $100,000 to an Indian individual, partnership, corporation, or 
cooperative association.
    (h) An application for a second grant will not be approved if the 
applicant:
    (1) Has not complied with the reporting requirements in connection 
with the first grant, or
    (2) Has not followed the plan of operation, if any, developed for 
the management and operation of the economic enterprise, or
    (3) Did not follow and use the management and technical assistance 
furnished, or
    (4) Is in violation of one or more provisions of the loan agreement 
entered into between the applicant and the lender who furnished the loan 
portion of the financing in connection with the first grant.
    (i) An applicant for an expansion grant must meet the same 
eligibility requirements as an original applicant.
    (j) A grantee will be required to return all or a portion of the 
grant if the business or enterprise for which the grant was utilized is 
sold within three years of the date on which the grant was disbursed to 
the grantee, unless the proceeds from the sale are re-invested in a new 
business or business expansion which will benefit the Indian reservation 
economy. Such sale and re-investment must have the prior approval of the 
local agency superintendent. The grantee shall refund the lessor of the 
grant amount or a pro rata portion of sales proceeds. The pro rata 
portion of sales proceeds shall be based on the ratio of grant amount to 
its corresponding matching financing. The new business or business 
expansion utilizing such sale proceeds must meet the same criteria for 
eligibility as an original grant.

[39 FR 44748, Dec. 27, 1974. Redesignated at 47 FR 13328, Mar. 30, 1982, 
as amended at 55 FR 36274, Sept. 5, 1990; 56 FR 12436, Mar. 25, 1991]



Sec. 286.18  Written notice.

    The applicant for a grant which is disapproved will be notified by 
letter, stating the reasons for disapproval and the right of appeal 
pursuant to 25 CFR 2. A copy of the letter will be sent to the 
prospective lender.

[39 FR 44748, Dec. 27, 1974. Redesignated at 47 FR 13328, Mar. 30, 1982; 
48 FR 13414, Mar. 31, 1983]



Sec. 286.19  [Reserved]



Sec. 286.20  Disbursement of grant funds.

    Unless otherwise provided by an agreement between a lender and the 
grantee, the Assistant Secretary may in his discretion advance grant 
funds directly to a grantee. He may require the funds to be deposited in 
a special account at the appropriate Agency headquarters office or 
deposited in a joint account in a bank and disbursed as needed by the 
grantee. The terms of a lender's loan agreement may require the lender's 
approval before disbursement of the funds. Grant funds will not be 
disbursed to a grantee until the Assistant Secretary has been informed 
by the lender that a loan has been approved for the grantee in the 
amount of the loan financing needed.



Sec. 286.21  Return of unused funds.

    Grantees will be required to return unused grant funds to the 
Assistant Secretary if the economic enterprise for which the grant was 
approved is not initiated, i.e., lease obtained, if needed, construction 
started, equipment purchased or other, within the time stated in the 
grant agreement. The Assistant Secretary may, if warranted by 
circumstances beyond the control of the grantee, extend the time to 
allow for initiation of the enterprise, provided there is assurance the 
enterprise will be initiated forthwith within the extended time period. 
The Assistant Secretary will notify the lender in writing

[[Page 720]]

of a proposed action to require the return of grant funds or of a 
proposal to extend the time.



Sec. 286.22  Reports.

    (a) Grantees are required to furnish the Assistant Secretary 
comparative balance sheets and profit and loss statements semi-annually 
for the first two years of operation following receipt of the grant, and 
annually thereafter for the succeeding three years. These may be copied 
of financial statements required by and furnished to the lender which 
provided the loan portion of the total financing required. If the lender 
does not require financial statements, the grantee must prepare and 
furnish copies of comparative balance sheets and profit and loss 
statements to the Assistant Secretary.
    (b) The Assistant Secretary will establish accounting and reporting 
systems which will appropriately show the status of the Indian Business 
Development Program at all times.



PART 290_TRIBAL REVENUE ALLOCATION PLANS--Table of Contents




Sec.
290.1 Purpose.
290.2 Definitions.
290.3 Information collection.
290.4 What is a tribal revenue allocation plan?
290.5 Who approves tribal revenue allocation plans?
290.6 Who must submit a tribal revenue allocation plan?
290.7 Must an Indian tribe have a tribal revenue allocation plan if it 
          is not making per capita payments?
290.8 Do Indian tribes have to make per capita payments from net gaming 
          revenues to tribal members?
290.9 How may an Indian tribe use net gaming revenues if it does not 
          have an approved tribal revenue allocation plan?
290.10 Is an Indian tribe in violation of IGRA if it makes per capita 
          payments to its members from net gaming revenues without an 
          approved tribal revenue allocation plan?
290.11 May an Indian tribe distribute per capita payments from net 
          gaming revenues derived from either Class II or Class III 
          gaming without a tribal revenue allocation plan?
290.12 What information must the tribal revenue allocation plan contain?
290.13 Under what conditions may an Indian tribe distribute per capita 
          payments?
290.14 Who can share in a per capita payment?
290.15 Must the Indian tribe establish trust accounts with financial 
          institutions for minors and legal incompetents?
290.16 Can the per capita payments of minors and legal incompetents be 
          deposited into accounts held by BIA or OTFM?
290.17 What documents must the Indian tribe include with the tribal 
          revenue allocation plan?
290.18 Where should the Indian tribe submit the tribal revenue 
          allocation plan?
290.19 How long will the ABO take to review and approve the tribal 
          revenue allocation plan?
290.20 When will the ABO disapprove a tribal revenue allocation plan?
290.21 May an Indian tribe appeal the ABO's decision?
290.22 How does the Indian tribe and its members ensure compliance with 
          its tribal revenue allocation plan?
290.23 How does the Indian tribe resolve disputes arising from per 
          capita payments to individual members or identified groups of 
          members?
290.24 Do revisions/amendments to a tribal revenue allocation plan 
          require approval?
290.25 What is the liability of the United States under this part?
290.26 Are previously approved tribal revenue allocation plans, 
          revisions or amendments subject to review in accordance with 
          25 CFR part 290?

    Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, and 2710.

    Source: 65 FR 14467, Mar. 17, 2000, unless otherwise noted.



Sec. 290.1  Purpose.

    This part contains procedures for submitting, reviewing, and 
approving tribal revenue allocation plans for distributing net gaming 
revenues from tribal gaming activities. It applies to review of tribal 
revenue allocation plans adopted under IGRA.



Sec. 290.2  Definitions.

    Appropriate Bureau official (ABO) means the Bureau official with 
delegated authority to approve tribal revenue allocation plans.
    IGRA means the Indian Gaming Regulatory Act of 1988 (Public Law 100-
497) 102 Stat. 2467 dated October 17, 1988, (Codified at 25 U.S.C. 2701-
2721(1988)) and any amendments.

[[Page 721]]

    Indian Tribe means any Indian tribe, band, nation, or other 
organized group or community of Indians that the Secretary recognizes 
as:
    (1) Eligible for the speci al programs and services provided by the 
United States to Indians because of their status as Indians; and
    (2) Having powers of self-government.
    Legal incompetent means an individual who is eligible to participate 
in a per capita payment and who has been declared to be under a legal 
disability, other than being a minor, by a court of competent 
jurisdiction, including tribal justice systems or as established by the 
tribe.
    Member of an Indian tribe means an individual who meets the 
requirements established by applicable tribal law for enrollment in the 
tribe and--
    (1) Is listed on the tribal rolls of that tribe if such rolls are 
kept or
    (2) Is recognized as a member by the tribal governing body if tribal 
rolls are not kept.
    Minor means an individual who is eligible to participate in a per 
capita payment and who has not reached the age of 18 years.
    Per capita payment means the distribution of money or other thing of 
value to all members of the tribe, or to identified groups of members, 
which is paid directly from the net revenues of any tribal gaming 
activity. This definition does not apply to payments which have been set 
aside by the tribe for special purposes or programs, such as payments 
made for social welfare, medical assistance, education, housing or other 
similar, specifically identified needs.
    Resolution means the formal document in which the tribal governing 
body expresses its legislative will in accordance with applicable tribal 
law.
    Secretary means the Secretary of the Interior or his/her authorized 
representative.
    Superintendent means the official or other designated representative 
of the BIA in charge of the field office which has immediate 
administrative responsibility for the affairs of the tribe for which a 
tribal revenue allocation plan is prepared.
    Tribal governing body means the governing body of an Indian tribe 
recognized by the Secretary.
    Tribal revenue allocation plan or allocation plan means the document 
submitted by an Indian tribe that provides for distributing net gaming 
revenues.
    You or your means the Indian tribe.



Sec. 290.3  Information collection.

    The information collection requirements contained in Sec. Sec. 
290.12, 290.17, 290.24 and 290.26 have been approved by the OMB under 
the Paperwork Reduction Act of 1995, 44 U.S.C. 3507(d), and assigned 
clearance number 1076-0152.



Sec. 290.4  What is a tribal revenue allocation plan?

    It is the document you must submit that describes how you will 
allocate net gaming revenues.



Sec. 290.5  Who approves tribal revenue allocation plans?

    The ABO will review and approve tribal revenue allocation plans for 
compliance with IGRA.



Sec. 290.6  Who must submit a tribal revenue allocation plan?

    Any Indian tribe that intends to make a per capita payment from net 
gaming revenues must submit one.



Sec. 290.7  Must an Indian tribe have a tribal revenue allocation plan 
if it is not making per capita payments?

    No, if you do not make per capita payments, you do not need to 
submit a tribal revenue allocation plan.



Sec. 290.8  Do Indian tribes have to make per capita payments from net 
gaming revenues to tribal members?

    No. You do not have to make per capita payments.



Sec. 290.9  How may an Indian tribe use net gaming revenues if it does 
not have an approved tribal revenue allocation plan?

    Without an approved tribal revenue allocation plan, you may use net 
gaming revenues to fund tribal government operations or programs; to 
provide for the general welfare of your tribe and its members; to 
promote tribal economic development; to donate to charitable 
organizations; or to help fund operations of local government agencies.

[[Page 722]]



Sec. 290.10  Is an Indian tribe in violation of IGRA if it makes per 

capita payments to its members from net gaming revenues without an 
approved tribal revenue allocation plan?

    Yes, you are in violation of IGRA if you make per capita payments to 
your tribal members from net gaming revenues without an approved tribal 
revenue allocation plan. If you refuse to comply, the DOJ or NIGC may 
enforce the per capita requirements of IGRA.



Sec. 290.11  May an Indian tribe distribute per capita payments from 

net gaming revenues derived from either Class II or Class III gaming 
without a tribal 
          revenue allocation plan?

    No, IGRA requires that you have an approved tribal revenue 
allocation plan.



Sec. 290.12  What information must the tribal revenue allocation plan 
contain?

    (a) You must prepare a tribal revenue allocation plan that includes 
a percentage breakdown of the uses for which you will allocate net 
gaming revenues. The percentage breakdown must total 100 percent.
    (b) The tribal revenue allocation plan must meet the following 
criteria:
    (1) It must reserve an adequate portion of net gaming revenues from 
the tribal gaming activity for one or more of the following purposes:
    (i) To fund tribal government operations or programs;
    (ii) To provide for the general welfare of the tribe or its members;
    (iii) To promote tribal economic development;
    (iv) To donate to charitable organizations; or
    (v) To help fund operations of local government.
    (2) It must contain detailed information to allow the ABO to 
determine that it complies with this section and IGRA particularly 
regarding funding for tribal governmental operations or programs and for 
promoting tribal economic development.
    (3) It must protect and preserve the interests of minors and other 
legally incompetent persons who are entitled to receive per capita 
payments by:
    (i) Ensuring that tribes make per capita payments for eligible 
minors or incompetents to the parents or legal guardians of these minors 
or incompetents at times and in such amounts as necessary for the 
health, education, or welfare of the minor or incompetent;
    (ii) Establishing criteria for withdrawal of the funds, acceptable 
proof and/or receipts for accountability of the expenditure of the funds 
and the circumstances for denial of the withdrawal of the minors' and 
legal incompetents' per capita payments by the parent or legal guardian; 
and
    (iii) Establishing a process, system, or forum for dispute 
resolution.
    (4) It must describe how you will notify members of the tax 
liability for per capita payments and how you will withhold taxes for 
all recipients in accordance with IRS regulations in 26 CFR part 31.
    (5) It must authorize the distribution of per capita payments to 
members according to specific eligibility requirements and must utilize 
or establish a tribal court system, forum or administrative process for 
resolution of disputes concerning the allocation of net gaming revenues 
and the distribution of per capita payments.



Sec. 290.13  Under what conditions may an Indian tribe distribute per 
capita payments?

    You may make per capita payments only after the ABO approves your 
tribal revenue allocation plan.



Sec. 290.14  Who can share in a per capita payment?

    (a) You must establish your own criteria for determining whether all 
members or identified groups of members are eligible for per capita 
payments.
    (b) If the tribal revenue allocation plan calls for distributing per 
capita payments to an identified group of members rather than to all 
members, you must justify limiting this payment to the identified group 
of members. You must make sure that:
    (1) The distinction between members eligible to receive payments and 
members ineligible to receive payments is reasonable and not arbitrary;
    (2) The distinction does not discriminate or otherwise violate the 
Indian Civil Rights Act; and

[[Page 723]]

    (3) The justification complies with applicable tribal law.



Sec. 290.15  Must the Indian tribe establish trust accounts with 
financial institutions for minors and legal incompetents?

    No. The tribe may establish trust accounts with financial 
institutions but should explore investment options to structure the 
accounts to the benefit of their members while ensuring compliance with 
IGRA and this part.



Sec. 290.16  Can the per capita payments of minors and legal incompetents 
be deposited into accounts held by BIA or OTFM?

    No. The Secretary will not accept any deposits of payments or funds 
derived from net gaming revenues to any account held by BIA or OTFM.



Sec. 290.17  What documents must the Indian tribe include with the 
tribal revenue allocation plan?

    You must include:
    (a) A written request for approval of the tribal revenue allocation 
plan; and
    (b) A tribal resolution or other document, including the date and 
place of adoption and the result of any vote taken, that certifies you 
have adopted the tribal revenue allocation plan in accordance with 
applicable tribal law.



Sec. 290.18  Where should the Indian tribe submit the tribal revenue 
allocation plan?

    You must submit your tribal revenue allocation plan to your 
respective Superintendent. The Superintendent will review the tribal 
revenue allocation plan to make sure it has been properly adopted in 
accordance with applicable tribal law. The Superintendent will then 
transmit the tribal revenue allocation plan promptly to the ABO.



Sec. 290.19  How long will the ABO take to review and approve the tribal 
revenue allocation plan?

    The ABO must review and act on your tribal revenue allocation plan 
within 60 days of receiving it. A tribal revenue allocation plan is not 
effective without the ABO's written approval.
    (a) If the tribal revenue allocation plan conforms with this part 
and the IGRA, the ABO must approve it.
    (b) If the tribal revenue allocation plan does not conform with this 
part and the IGRA, the ABO will send you a written notice that:
    (1) Explains why the plan doesn't conform to this part of the IGRA; 
and
    (2) Tells you how to bring the plan into conformance.
    (c) If the ABO doesn't act within 60 days, you can appeal the 
inaction under 25 CFR part 2. A tribal revenue allocation plan is not 
effective without the express written approval of the ABO.



Sec. 290.20  When will the ABO disapprove a tribal revenue allocation 
plan?

    The ABO will not approve any tribal revenue allocation plan for 
distribution of net gaming revenues from a tribal gaming activity if:
    (a) The tribal revenue allocation plan is inadequate, particularly 
with respect to the requirements in Sec. 290.12 and IGRA, and you fail 
to bring it into compliance;
    (b) The tribal revenue allocation plan is not adopted in accordance 
with applicable tribal law;
    (c) The tribal revenue allocation plan does not include a reasonable 
justification for limiting per capita payments to certain groups of 
members; or
    (d) The tribal revenue allocation plan violates the Indian Civil 
Rights Act of 1968, any other provision of Federal law, or the United 
States' trust obligations.



Sec. 290.21  May an Indian tribe appeal the ABO's decision?

    Yes, you may appeal the ABO's decision in accordance with the 
regulations at 25 CFR part 2.



Sec. 290.22  How does the Indian tribe ensure compliance with its 
tribal revenue allocation plan?

    You must utilize or establish a tribal court system, forum or 
administrative process in the tribal revenue allocation plan for 
reviewing expenditures of net gaming revenues and explain how you will 
correct deficiencies.

[[Page 724]]



Sec. 290.23  How does the Indian tribe resolve disputes arising from 
per capita payments to individual members or identified groups of members?

    You must utilize or establish a tribal court system, forum or 
administrative process for resolving disputes arising from the 
allocation of net gaming revenue and the distribution of per capita 
payments.



Sec. 290.24  Do revisions/amendments to a tribal revenue allocation 
plan require approval?

    Yes, revisions/amendments to a tribal revenue allocation plan must 
be submitted to the ABO for approval to ensure that they comply with 
Sec. 290.12 and IGRA.



Sec. 290.25  What is the liability of the United States under this part?

    The United States is not liable for the manner in which a tribe 
distributes funds from net gaming revenues.



Sec. 290.26  Are previously approved tribal revenue allocation plans, 
revisions, or amendments subject to review in accordance with this part?

    No. This part applies only to tribal revenue allocation plans, 
revisions, or amendments submitted for approval after April 17, 2000.
    (a) If the ABO approved your tribal revenue allocation plan, 
revisions, or amendments before April 17, 2000, you need not resubmit it 
for approval.
    (b) If you are amending or revising a previously approved allocation 
plan, you must submit the amended or revised plan to the ABO for review 
and approval under this part.



PART 291_CLASS III GAMING PROCEDURES--Table of Contents




Sec.
291.1 Purpose and scope.
291.2 Definitions.
291.3 When may an Indian tribe ask the Secretary to issue Class III 
          gaming procedures?
291.4 What must a proposal requesting Class III gaming procedures 
          contain?
291.5 Where must the proposal requesting Class III gaming procedures be 
          filed?
291.6 What must the Secretary do upon receiving a proposal?
291.7 What must the Secretary do if it has been determined that the 
          Indian tribe is eligible to request Class III gaming 
          procedures?
291.8 What must the Secretary do at the expiration of the 60-day comment 
          period if the State has not submitted an alternative proposal?
291.9 What must the Secretary do at the end of the 60-day comment period 
          if the State offers an alternative proposal for Class III 
          gaming procedures?
291.10 What is the role of the mediator appointed by the Secretary?
291.11 What must the Secretary do upon receiving the proposal selected 
          by the mediator?
291.12 Who will monitor and enforce tribal compliance with the Class III 
          gaming procedures?
291.13 When do Class III gaming procedures for an Indian tribe become 
          effective?
291.14 How can Class III gaming procedures issued by the Secretary be 
          amended?
291.15 How long do Class III gaming procedures remain in effect?

    Authority: 5 U.S.C. 301; 25 U.S.C. sections 2,9 and 2710.

    Source: 64 FR 17543, Apr. 12, 1999, unless otherwise noted.



Sec. 291.1  Purpose and scope.

    The regulations in this part establish procedures that the Secretary 
will use to promulgate rules for the conduct of Class III Indian gaming 
when:
    (a) A State and an Indian tribe are unable to voluntarily agree to a 
compact and;
    (b) The State has asserted its immunity from suit brought by an 
Indian tribe under 25 U.S.C. 2710(d)(7)(B).



Sec. 291.2  Definitions

    (a) All terms have the same meaning as set forth in the definitional 
section of IGRA, 25 U.S.C. section 2703(1)-(10).
    (b) The term ``compact'' includes renewal of an existing compact.



Sec. 291.3  When may an Indian tribe ask the Secretary to issue Class III 
gaming procedures?

    An Indian tribe may ask the Secretary to issue Class III gaming 
procedures when the following steps have taken place:
    (a) The Indian tribe submitted a written request to the State to 
enter into negotiations to establish a Tribal-State compact governing 
the conduct of Class III gaming activities;

[[Page 725]]

    (b) The State and the Indian tribe failed to negotiate a compact 180 
days after the State received the Indian tribe's request;
    (c) The Indian tribe initiated a cause of action in Federal district 
court against the State alleging that the State did not respond, or did 
not respond in good faith, to the request of the Indian tribe to 
negotiate such a compact;
    (d) The State raised an Eleventh Amendment defense to the tribal 
action; and
    (e) The Federal district court dismissed the action due to the 
State's sovereign immunity under the Eleventh Amendment.



Sec. 291.4  What must a proposal requesting Class III gaming procedures 
contain?

    A proposal requesting Class III gaming procedures must include the 
following information:
    (a) The full name, address, and telephone number of the Indian tribe 
submitting the proposal;
    (b) A copy of the authorizing resolution from the Indian tribe 
submitting the proposal;
    (c) A copy of the Indian tribe's gaming ordinance or resolution 
approved by the NIGC in accordance with 25 U.S.C. 2710, if any;
    (d) A copy of the Indian tribe's organic documents, if any;
    (e) A copy of the Indian tribe's written request to the State to 
enter into compact negotiations, along with the Indian tribe's proposed 
compact, if any;
    (f) A copy of the State's response to the tribal request and/or 
proposed compact, if any;
    (g) A copy of the tribe's Complaint (with attached exhibits, if 
any); the State's Motion to Dismiss; any Response by the tribe to the 
State's Motion to Dismiss; any Opinion or other written documents from 
the court regarding the State's Motion to Dismiss; and the Court's Order 
of dismissal;
    (h) The Indian tribe's factual and legal authority for the scope of 
gaming specified in paragraph (j)(13) of this section;
    (i) Regulatory scheme for the State's oversight role, if any, in 
monitoring and enforcing compliance; and
    (j) Proposed procedures under which the Indian tribe will conduct 
Class III gaming activities, including:
    (1) A certification that the tribe's accounting procedures are 
maintained in accordance with American Institute of Certified Public 
Accountants Standards for Audits of Casinos, including maintenance of 
books and records in accordance with Generally Accepted Accounting 
Principles and applicable NIGC regulations;
    (2) A reporting system for the payment of taxes and fees in a timely 
manner and in compliance with Internal Revenue Code and Bank Secrecy Act 
requirements;
    (3) Preparation of financial statements covering all financial 
activities of the Indian tribe's gaming operations;
    (4) Internal control standards designed to ensure fiscal integrity 
of gaming operations as set forth in 25 CFR Part 542;
    (5) Provisions for records retention, maintenance, and 
accessibility;
    (6) Conduct of games, including patron requirements, posting of game 
rules, and hours of operation;
    (7) Procedures to protect the integrity of the rules for playing 
games;
    (8) Rules governing employees of the gaming operation, including 
code of conduct, age requirements, conflict of interest provisions, 
licensing requirements, and such background investigations of all 
management officials and key employees as are required by IGRA, NIGC 
regulations, and applicable tribal gaming laws;
    (9) Policies and procedures that protect the health and safety of 
patrons and employees and that address insurance and liability issues, 
as well as safety systems for fire and emergency services at all gaming 
locations;
    (10) Surveillance procedures and security personnel and systems 
capable of monitoring movement of cash and chips, entrances and exits of 
gaming facilities, and other critical areas of any gaming facility;
    (11) An administrative and/or tribal judicial process to resolve 
disputes between gaming establishment, employees and patrons, including 
a process to protect the rights of individuals injured on gaming 
premises by reason of

[[Page 726]]

negligence in the operation of the facility;
    (12) Hearing procedures for licensing purposes;
    (13) A list of gaming activities proposed to be offered by the 
Indian tribe at its gaming facilities;
    (14) A description of the location of proposed gaming facilities;
    (15) A copy of the Indian tribe's liquor ordinance approved by the 
Secretary if intoxicants, as used in 18 U.S.C. 1154, will be served in 
the gaming facility;
    (16) Provisions for a tribal regulatory gaming entity, independent 
of gaming management;
    (17) Provisions for tribal enforcement and investigatory mechanisms, 
including the imposition of sanctions, monetary penalties, closure, and 
an administrative appeal process relating to enforcement and 
investigatory actions;
    (18) The length of time the procedures will remain in effect; and
    (19) Any other provisions deemed necessary by the Indian tribe.



Sec. 291.5  Where must the proposal requesting Class III gaming procedures 
be filed?

    Any proposal requesting Class III gaming procedures must be filed 
with the Director, Indian Gaming Management Staff, Bureau of Indian 
Affairs, U.S. Department of the Interior, MS 2070-MIB, 1849 C Street NW, 
Washington, DC 20240.



Sec. 291.6  What must the Secretary do upon receiving a proposal?

    Upon receipt of a proposal requesting Class III gaming procedures, 
the Secretary must:
    (a) Within 15 days, notify the Indian tribe in writing that the 
proposal has been received, and whether any information required under 
Sec. 291.4 is missing;
    (b) Within 30 days of receiving a complete proposal, notify the 
Indian tribe in writing whether the Indian tribe meets the eligibility 
requirements in Sec. 291.3. The Secretary's eligibility determination 
is final for the Department.



Sec. 291.7  What must the Secretary do if it has been determined that 
the Indian tribe is eligible to request Class III gaming procedures?

    (a) If the Secretary determines that the Indian tribe is eligible to 
request Class III gaming procedures and that the Indian tribe's proposal 
is complete, the Secretary must submit the Indian tribe's proposal to 
the Governor and the Attorney General of the State where the gaming is 
proposed.
    (b) The Governor and Attorney General will have 60 days to comment 
on:
    (1) Whether the State is in agreement with the Indian tribe's 
proposal;
    (2) Whether the proposal is consistent with relevant provisions of 
the laws of the State;
    (3) Whether contemplated gaming activities are permitted in the 
State for any purposes, by any person, organization, or entity.
    (c) The Secretary will also invite the State's Governor and Attorney 
General to submit an alternative proposal to the Indian tribe's proposed 
Class III gaming procedures.



Sec. 291.8  What must the Secretary do at the expiration of the 60-day 
comment period if the State has not submitted an alternative proposal?

    (a) Upon expiration of the 60-day comment period specified in Sec. 
291.7, if the State has not submitted an alternative proposal, the 
Secretary must review the Indian tribe's proposal to determine:
    (1) Whether all requirements of Sec. 291.4 are adequately 
addressed;
    (2) Whether Class III gaming activities will be conducted on Indian 
lands over which the Indian tribe has jurisdiction;
    (3) Whether contemplated gaming activities are permitted in the 
State for any purposes by any person, organization, or entity;
    (4) Whether the proposal is consistent with relevant provisions of 
the laws of the State;
    (5) Whether the proposal is consistent with the trust obligations of 
the United States to the Indian tribe;
    (6) Whether the proposal is consistent with all applicable 
provisions of IGRA; and

[[Page 727]]

    (7) Whether the proposal is consistent with provisions of other 
applicable Federal laws.
    (b) Within 60 days of the expiration of the 60-day comment period in 
Sec. 291.7, the Secretary must notify the Indian tribe, the Governor, 
and the Attorney General of the State in writing that he/she has:
    (1) Approved the proposal if the Secretary determines that there are 
no objections to the Indian tribe's proposal; or
    (2) Identified unresolved issues and areas of disagreements in the 
proposal, and invite the Indian tribe, the Governor and the Attorney 
General to participate in an informal conference, within 30 days of 
notification unless the parties agree otherwise, to resolve identified 
unresolved issues and areas of disagreement.
    (c) Within 30 days of the informal conference, the Secretary must 
prepare and mail to the Indian tribe, the Governor and the Attorney 
General:
    (1) A written report that summarizes the results of the informal 
conference; and
    (2) A final decision either setting forth the Secretary's proposed 
Class III gaming procedures for the Indian tribe, or disapproving the 
proposal for any of the reasons in paragraph (a) of this section.



Sec. 291.9  What must the Secretary do at the end of the 60-day comment 

period if the State offers an alternative proposal for Class III gaming 
procedures?

    Within 30 days of receiving the State's alternative proposal, the 
Secretary must appoint a mediator who:
    (a) Has no official, financial, or personal conflict of interest 
with respect to the issues in controversy; and
    (b) Must convene a process to resolve differences between the two 
proposals.



Sec. 291.10  What is the role of the mediator appointed by the Secretary?

    (a) The mediator must ask the Indian tribe and the State to submit 
their last best proposal for Class III gaming procedures.
    (b) After giving the Indian tribe and the State an opportunity to be 
heard and present information supporting their respective positions, the 
mediator must select from the two proposals the one that best comports 
with the terms of IGRA and any other applicable Federal law. The 
mediator must submit the proposal selected to the Indian tribe, the 
State, and the Secretary.



Sec. 291.11  What must the Secretary do upon receiving the proposal 
selected by the mediator?

    Within 60 days of receiving the proposal selected by the mediator, 
the Secretary must do one of the following:
    (a) Notify the Indian tribe, the Governor and the Attorney General 
in writing of his/her decision to approve the proposal for Class III 
gaming procedures selected by the mediator; or
    (b) Notify the Indian tribe, the Governor and the Attorney General 
in writing of his/her decision to disapprove the proposal selected by 
the mediator for any of the following reasons:
    (1) The requirements of Sec. 291.4 are not adequately addressed;
    (2) Gaming activities would not be conducted on Indian lands over 
which the Indian tribe has jurisdiction;
    (3) Contemplated gaming activities are not permitted in the State 
for any purpose by any person, organization, or entity;
    (4) The proposal is not consistent with relevant provisions of the 
laws of the State;
    (5) The proposal is not consistent with the trust obligations of the 
United States to the Indian tribe;
    (6) The proposal is not consistent with applicable provisions of 
IGRA; or
    (7) The proposal is not consistent with provisions of other 
applicable Federal laws.
    (c) If the Secretary rejects the mediator's proposal under paragraph 
(b) of this section, he/she must prescribe appropriate procedures within 
60 days under which Class III gaming may take place that comport with 
the mediator's selected proposal as much as possible, the provisions of 
IGRA, and the relevant provisions of the laws of the State.

[[Page 728]]



Sec. 291.12  Who will monitor and enforce tribal compliance with the 
Class III gaming procedures?

    The Indian tribe and the State may have an agreement regarding 
monitoring and enforcement of tribal compliance with the Indian tribe's 
Class III gaming procedures. In addition, under existing law, the NIGC 
will monitor and enforce tribal compliance with the Indian tribe's Class 
III gaming procedures.



Sec. 291.13  When do Class III gaming procedures for an Indian tribe 
become effective?

    Upon approval of Class III gaming procedures for the Indian tribe 
under either Sec. 291.8(b), Sec. 291.8(c), or Sec. 291.11(a), the 
Indian tribe shall have 90 days in which to approve and execute the 
Secretarial procedures and forward its approval and execution to the 
Secretary, who shall publish notice of their approval in the Federal 
Register. The procedures take effect upon their publication in the 
Federal Register.



Sec. 291.14  How can Class III gaming procedures approved by the 
Secretary be amended?

    An Indian tribe may ask the Secretary to amend approved Class III 
gaming procedures by submitting an amendment proposal to the Secretary. 
The Secretary must review the proposal by following the approval process 
for initial tribal proposals, except that the requirements of Sec. 
291.3 are not applicable and he/she may waive the requirements of Sec. 
291.4 to the extent they do not apply to the amendment request.



Sec. 291.15  How long do Class III gaming procedures remain in effect?

    Class III gaming procedures remain in effect for the duration 
specified in the procedures or until amended pursuant to Sec. 291.14.