[Title 25 CFR ]
[Code of Federal Regulations (annual edition) - April 1, 2007 Edition]
[From the U.S. Government Printing Office]



[[Page i]]

          

          25

                         Revised as of April 1, 2007


          Indians
          



________________________

          Containing a codification of documents of general 
          applicability and future effect

          As of April 1, 2007
          With Ancillaries
                    Published by
                    Office of the Federal Register
                    National Archives and Records
                    Administration
                    A Special Edition of the Federal Register

[[Page ii]]

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[[Page iii]]




                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 25:
          Chapter I--Bureau of Indian Affairs, Department of 
          the Interior                                               3
          Chapter II--Indian Arts and Crafts Board, Department 
          of the Interior                                          825
          Chapter III--National Indian Gaming Commission, 
          Department of the Interior                               841
          Chapter IV--The Office of Navajo and Hopi Indian 
          Relocation                                               997
          Chapter V--Bureau of Indian Affairs, Department of 
          the Interior, and Indian Health Service, Department 
          of Health and Human Services                            1085
          Chapter VI--Office of the Assistant Secretary, 
          Indian Affairs, Department of the Interior              1149
          Chapter VII--Office of the Special Trustee for 
          American Indians, Department of the Interior            1213
  Finding Aids:
      Table of CFR Titles and Chapters........................    1225
      Alphabetical List of Agencies Appearing in the CFR......    1243
      List of CFR Sections Affected...........................    1253

[[Page iv]]





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

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 25 CFR 1.2 refers to 
                       title 25, part 1, section 
                       2.

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

[[Page v]]



                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

    The contents of the Federal Register are required to be judicially 
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie 
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

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    To determine whether a Code volume has been amended since its 
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OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
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OBSOLETE PROVISIONS

    Provisions that become obsolete before the revision date stated on 
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Sections Affected'' is published at the end of each CFR volume.

CFR INDEXES AND TABULAR GUIDES

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the revision dates of the 50 CFR titles.

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[[Page vii]]

    The Office of the Federal Register also offers a free service on the 
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register. The NARA site also contains links to GPO Access.

                              Raymond A. Mosley,
                                    Director,
                          Office of the Federal Register.

April 1, 2007.

[[Page ix]]



                               THIS TITLE

    Title 25--Indians is composed of one volume. The contents of this 
volume represent all current regulations codified under this title of 
the CFR as of April 1, 2007.

    For this volume, Elmer Barksdale and Carol A. Conroy were Chief 
Editors. The Code of Federal Regulations publication program is under 
the direction of Frances D. McDonald, assisted by Ann Worley.

[[Page 1]]



                            TITLE 25--INDIANS




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                                                                    Part

chapter i--Bureau of Indian Affairs, Department of the 
  Interior..................................................           1

chapter ii--Indian Arts and Crafts Board, Department of the 
  Interior..................................................         301

chapter iii--National Indian Gaming Commission, Department 
  of the Interior...........................................         501

chapter iv--The Office of Navajo and Hopi Indian Relocation.         700

chapter v--Bureau of Indian Affairs, Department of the 
  Interior, and Indian Health Service, Department of Health 
  and Human Services........................................         900

chapter vi--Office of the Assistant Secretary, Indian 
  Affairs, Department of the Interior.......................        1000

chapter vii--Office of the Special Trustee for American 
  Indians, Department of the Interior.......................        1200

[[Page 3]]



     CHAPTER I--BUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR




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                  SUBCHAPTER A--PROCEDURES AND PRACTICE
Part                                                                Page
1               Applicability of rules of the Bureau of 
                    Indian Affairs..........................           9
2               Appeals from administrative actions.........          10
5               Preference in employment....................          16
                       SUBCHAPTER B--LAW AND ORDER
10              Indian country detention facilities and 
                    programs................................          17
11              Law and order on Indian reservations........          19
12              Indian country law enforcement..............          55
13              Tribal reassumption of jurisdiction over 
                    child custody proceedings...............          60
                          SUBCHAPTER C--PROBATE
15              Probate of Indian estates, except for 
                    members of the Five Civilized Tribes....          64
16              Estates of Indians of the Five Civilized 
                    Tribes..................................          69
17              Action on wills of Osage Indians............          72
                      SUBCHAPTER D--HUMAN SERVICES
20              Financial assistance and social services 
                    programs................................          75
23              Indian Child Welfare Act....................          96
26              Employment assistance for adult Indians.....         116
27              Vocational training for adult Indians.......         119
                         SUBCHAPTER E--EDUCATION
30              Adequate yearly progress....................         124
31              Federal schools for Indians.................         130
32              Indian education policies...................         131
33              Transfer of Indian education functions......         136
36              Minimum academic standards for the basic 
                    education of Indian children and 
                    national criteria for dormitory 
                    situations..............................         138
37              Geographic boundaries.......................         156

[[Page 4]]

38              Education personnel.........................         158
39              The Indian school equalization program......         172
40              Administration of educational loans, grants 
                    and other assistance for higher 
                    education...............................         197
41              Grants to tribally controlled community 
                    colleges and Navajo Community College...         198
42              Student rights..............................         208
43              Maintenance and control of student records 
                    in Bureau schools.......................         211
44              Grants under the Tribally Controlled Schools 
                    Act.....................................         217
46              Adult Education Program.....................         219
47              Uniform direct funding and support for 
                    Bureau-operated schools.................         222
                     SUBCHAPTER F--TRIBAL GOVERNMENT
61              Preparation of rolls of Indians.............         225
62              Enrollment appeals..........................         236
63              Indian child protection and family violence 
                    prevention..............................         239
67              Preparation of a roll of independent 
                    Seminole Indians of Florida.............         248
75              Revision of the membership roll of the 
                    Eastern Band of Cherokee Indians, North 
                    Carolina................................         252
81              Tribal reorganization under a Federal 
                    statute.................................         257
82              Petitioning procedures for tribes 
                    reorganized under Federal statute and 
                    other organized tribes..................         265
83              Procedures for establishing that an American 
                    Indian group exists as an Indian tribe..         268
84              Encumbrances of tribal land--Contract 
                    approvals...............................         282
87              Use or distribution of Indian judgment funds         284
88              Recognition of attorneys and agents to 
                    represent claimants.....................         289
89              Attorney contracts with Indian tribes.......         289
90              Election of officers of the Osage Tribe.....         292
91              Government of Indian villages, Osage 
                    Reservation, Oklahoma...................         298
                   SUBCHAPTER G--FINANCIAL ACTIVITIES
101             Loans to Indians from the Revolving Loan 
                    Fund....................................         303
103             Loan guaranty, insurance, and interest 
                    subsidy.................................         314
111             Annuity and other per capita payments.......         331
114

Special deposits [Reserved]

115             Trust funds for tribes and individual 
                    Indians.................................         332
117             Deposit and expenditure of individual funds 
                    of members of the Osage Tribe of Indians 
                    who do not have certificates of 
                    competency..............................         357

[[Page 5]]

122             Management of Osage judgment funds for 
                    education...............................         365
124             Deposits of proceeds from lands withdrawn 
                    for Native selection....................         367
134             Partial payment construction charges on 
                    Indian irrigation projects..............         368
135             Construction assessments, Crow Indian 
                    irrigation project......................         370
136             Fort Hall Indian irrigation project, Idaho..         372
137             Reimbursement of construction costs, San 
                    Carlos Indian irrigation project, 
                    Arizona.................................         372
138             Reimbursement of construction costs, Ahtanum 
                    Unit, Wapato Indian irrigation project, 
                    Washington..............................         374
139             Reimbursement of construction costs, Wapato-
                    Satus Unit, Wapato Indian irrigation 
                    project, Washington.....................         375
140             Licensed Indian traders.....................         376
141             Business practices on the Navajo, Hopi and 
                    Zuni Reservations.......................         381
142             Alaska Resupply Operation...................         395
143             Charges for goods and services provided to 
                    non-Federal users.......................         398
                      SUBCHAPTER H--LAND AND WATER
150             Land records and title documents............         400
151             Land acquisitions...........................         403
152             Issuance of patents in fee, certificates of 
                    competency, removal of restrictions, and 
                    sale of certain Indian lands............         407
153             Determination of competency: Crow Indians...         416
158             Osage lands.................................         417
159             Sale of irrigable lands, special water 
                    contract requirements...................         418
160             Inclusion of liens in all patents and 
                    instruments executed....................         419
161             Navajo partitioned lands grazing permits....         420
162             Leases and permits..........................         436
163             General forestry regulations................         465
166             Grazing permits.............................         492
167             Navajo grazing regulations..................         524
168             Grazing regulations for the Hopi Partitioned 
                    Lands area..............................         529
169             Rights-of-way over Indian lands.............         535
170             Indian Reservation Roads Program............         548
171             Operation and maintenance...................         614

[[Page 6]]

172             Pueblo Indian lands benefited by irrigation 
                    and drainage works of Middle Rio Grande 
                    Conservancy District, New Mexico........         624
173             Concessions, permits and leases on lands 
                    withdrawn or acquired in connection with 
                    Indian irrigation projects..............         624
175             Indian electric power utilities.............         628
179             Life estates and future interests...........         633
181             Indian Highway Safety Program...............         181
183             Use and distribution of the San Carlos 
                    Apache Tribe Development Trust Fund and 
                    San Carlos Apache Tribe Lease Fund......         638
                    SUBCHAPTER I--ENERGY AND MINERALS
200             Terms and conditions: Coal leases...........         642
211             Leasing of tribal lands for mineral 
                    development.............................         642
212             Leasing of allotted lands for mineral 
                    development.............................         656
213             Leasing of restricted lands of members of 
                    Five Civilized Tribes, Oklahoma, for 
                    mining..................................         665
214             Leasing of Osage Reservation lands, 
                    Oklahoma, for mining, except oil and gas         678
215             Lead and zinc mining operations and leases, 
                    Quapaw Agency...........................         683
216             Surface exploration, mining, and reclamation 
                    of lands................................         692
217             Management of tribal assets of Ute Indian 
                    Tribe, Uintah and Ouray Reservation, 
                    Utah, by the tribe and the Ute 
                    Distribution Corp.......................         698
225             Oil and gas, geothermal, and solid minerals 
                    agreements..............................         699
226             Leasing of Osage Reservation lands for oil 
                    and gas mining..........................         710
227             Leasing of certain lands in Wind River 
                    Indian Reservation, Wyoming, for oil and 
                    gas mining..............................         726
                     SUBCHAPTER J--FISH AND WILDLIFE
241             Indian fishing in Alaska....................         735
242             Commercial fishing on Red Lake Indian 
                    Reservation.............................         738
243             Reindeer in Alaska..........................         739
247             Use of Columbia River Treaty fishing access 
                    sites...................................         742
248             Use of Columbia River Indian in-lieu fishing 
                    sites...................................         746

[[Page 7]]

249             Off-reservation treaty fishing..............         747
                          SUBCHAPTER K--HOUSING
256             Housing Improvement Program.................         751
                   SUBCHAPTER L--HERITAGE PRESERVATION
262             Protection of archaeological resources......         761
265             Establishment of roadless and wild areas on 
                    Indian reservations.....................         766
  SUBCHAPTER M--INDIAN SELF-DETERMINATION AND EDUCATION ASSISTANCE ACT 
                                 PROGRAM
273             Education contracts under Johnson-O'Malley 
                    Act.....................................         767
275             Staffing....................................         781
276             Uniform administrative requirements for 
                    grants..................................         783
                   SUBCHAPTER N--ECONOMIC ENTERPRISES
286             Indian Business Development Program.........         806
290             Tribal revenue allocation plans.............         811
291             Class III gaming procedures.................         815
                 SUBCHAPTER O--MISCELLANEOUS [RESERVED]
Appendix to Chapter I--Extension of the Trust or Restricted 
  Status of Certain Indian Lands............................         819

[[Page 9]]



                  SUBCHAPTER A_PROCEDURES AND PRACTICE





PART 1_APPLICABILITY OF RULES OF THE BUREAU OF INDIAN AFFAIRS--Table of 

Contents




Sec.
1.1 [Reserved]
1.2 Applicability of regulations and reserved authority of the Secretary 
          of the Interior.
1.3 Scope.
1.4 State and local regulation of the use of Indian property.
1.10 Availability of forms.

    Authority: 5 U.S.C. 301; R.S. 463, 25 U.S.C. 2.



Sec. 1.1  [Reserved]



Sec. 1.2  Applicability of regulations and reserved authority of the

Secretary of the Interior.

    The regulations in chapter I of title 25 of the Code of Federal 
Regulations are of general application. Notwithstanding any limitations 
contained in the regulations of this chapter, the Secretary retains the 
power to waive or make exceptions to his regulations as found in chapter 
I of title 25 CFR in all cases where permitted by law and the Secretary 
finds that such waiver or exception is in the best interest of the 
Indians.

[25 FR 3124, Apr. 12, 1960]



Sec. 1.3  Scope.

    Chapters I and II of this title contain the bulk of the regulations 
of the Department of the Interior of general application relating to 
Indian affairs. Subtitle B, chapter I, title 43 of the Code or Federal 
Regulations contains rules relating to the relationship of Indians to 
public lands and townsites. Subtitle A of title 43 CFR has application 
to certain aspects of Indian affairs and, among other things, contains 
procedural rules for appellate and other administrative review and for 
practice before the Department of the Interior, of which the Bureau of 
Indian Affairs is a part. Indian health matters are covered in 42 CFR 
part 36. Title 30 CFR contains regulations on oil and gas and other 
mining operations, which, under certain circumstances, may be applicable 
to Indian resources.

[25 FR 3124, Apr. 12, 1960, as amended at 40 FR 20625, May 12, 1975; 48 
FR 13414, Mar. 31, 1983]



Sec. 1.4  State and local regulation of the use of Indian property.

    (a) Except as provided in paragraph (b) of this section, none of the 
laws, ordinances, codes, resolutions, rules or other regulations of any 
State or political subdivision thereof limiting, zoning or otherwise 
governing, regulating, or controlling the use or development of any real 
or personal property, including water rights, shall be applicable to any 
such property leased from or held or used under agreement with and 
belonging to any Indian or Indian tribe, band, or community that is held 
in trust by the United States or is subject to a restriction against 
alienation imposed by the United States.
    (b) The Secretary of the Interior or his authorized representative 
may in specific cases or in specific geographic areas adopt or make 
applicable to Indian lands all or any part of such laws, ordinances, 
codes, resolutions, rules or other regulations referred to in paragraph 
(a) of this section as he shall determine to be in the best interest of 
the Indian owner or owners in achieving the highest and best use of such 
property. In determining whether, or to what extent, such laws, 
ordinances, codes, resolutions, rules or other regulations shall be 
adopted or made applicable, the Secretary or his authorized 
representative may consult with the Indian owner or owners and may 
consider the use of, and restrictions or limitations on the use of, 
other property in the vicinity, and such other factors as he shall deem 
appropriate.

[30 FR 7520, June 9, 1965]



Sec. 1.10  Availability of forms.

    Forms upon which applications and related documents may be filed and 
upon which rights and privileges may be granted may be inspected and 
procured at the Bureau of Indian Affairs, Washington, DC, and at the 
office of

[[Page 10]]

any Area Director or Agency Superintendent.

[25 FR 3124, Apr. 12, 1960]



PART 2_APPEALS FROM ADMINISTRATIVE ACTIONS--Table of Contents




Sec.
2.1 Information collection.
2.2 Definitions.
2.3 Applicability.
2.4 Officials who may decide appeals.
2.5 Appeal bond.
2.6 Finality of decisions.
2.7 Notice of administrative decision or action.
2.8 Appeal from inaction of official.
2.9 Notice of an appeal.
2.10 Statement of reasons.
2.11 Answer of interested party.
2.12 Service of appeal documents.
2.13 Filing documents.
2.14 Record address.
2.15 Computation of time.
2.16 Extensions of time.
2.17 Summary dismissal.
2.18 Consolidation of appeals.
2.19 Action by Area Directors and Education Programs officials on 
          appeal.
2.20 Action by the Assistant Secretary--Indian Affairs on appeal.
2.21 Scope of review.

    Authority: R.S. 463, 465; 5 U.S.C. 301, 25 U.S.C. 2, 9.

    Source: 54 FR 6480, Feb. 10, 1989, unless otherwise noted.



Sec. 2.1  Information collection.

    In accordance with Office of Management and Budget regulations in 5 
CFR 1320.3(c), approval of information collections contained in this 
regulation is not required.



Sec. 2.2  Definitions.

    Appeal means a written request for review of an action or the 
inaction of an official of the Bureau of Indian Affairs that is claimed 
to adversely affect the interested party making the request.
    Appellant means any interested party who files an appeal under this 
part.
    Interested party means any person whose interests could be adversely 
affected by a decision in an appeal.
    Legal holiday means a Federal holiday as designated by the President 
or the Congress of the United States.
    Notice of appeal means the written document sent to the official 
designated in this part, indicating that a decision is being appealed 
(see Sec. 2.9).
    Person includes any Indian or non-Indian individual, corporation, 
tribe or other organization.
    Statement of reasons means a written document submitted by the 
appellant explaining why the decision being appealed is in error (see 
Sec. 2.10).

[54 FR 6480, Feb. 10, 1989; 54 FR 7666, Feb. 22, 1989]



Sec. 2.3  Applicability.

    (a) Except as provided in paragraph (b) of this section, this part 
applies to all appeals from decisions made by officials of the Bureau of 
Indian Affairs by persons who may be adversely affected by such 
decisions.
    (b) This part does not apply if any other regulation or Federal 
statute provides a different administrative appeal procedure applicable 
to a specific type of decision.



Sec. 2.4  Officials who may decide appeals.

    The following officials may decide appeals:
    (a) An Area Director, if the subject of appeal is a decision by a 
person under the authority of that Area Director.
    (b) An Area Education Programs Administrator, Agency Superintendent 
for Education, President of a Post-Secondary School, or the Deputy to 
the Assistant Secretary--Indian Affairs/Director (Indian Education 
Programs), if the appeal is from a decision by an Office of Indian 
Education Programs (OIEP) official under his/her jurisdiction.
    (c) The Assistant Secretary--Indian Affairs pursuant to the 
provisions of Sec. 2.20 of this part.
    (d) A Deputy to the Assistant Secretary--Indian Affairs pursuant to 
the provisions of Sec. 2.20(c) of this part.
    (e) The Interior Board of Indian Appeals, pursuant to the provisions 
of 43 CFR part 4, subpart D, if the appeal is from a decision made by an 
Area Director or a Deputy to the Assistant Secretary--Indian Affairs 
other than the Deputy to the Assistant Secretary--Indian Affairs/
Director (Indian Education Programs).

[[Page 11]]



Sec. 2.5  Appeal bond.

    (a) If a person believes that he/she may suffer a measurable and 
substantial financial loss as a direct result of the delay caused by an 
appeal, that person may request that the official before whom the appeal 
is pending require the posting of a reasonable bond by the appellant 
adequate to protect against that financial loss.
    (b) A person requesting that a bond be posted bears the burden of 
proving the likelihood that he/she may suffer a measurable and 
substantial financial loss as a direct result of the delay caused by the 
appeal.
    (c) In those cases in which the official before whom an appeal is 
pending determines that a bond is necessary to protect the financial 
interests of an Indian or Indian tribe, that official may require the 
posting of a bond on his/her own initiative.
    (d) Where the official before whom an appeal is pending requires a 
bond to be posted or denies a request that a bond be posted, he/she 
shall give notice of his/her decision pursuant to Sec. 2.7.



Sec. 2.6  Finality of decisions.

    (a) No decision, which at the time of its rendition is subject to 
appeal to a superior authority in the Department, shall be considered 
final so as to constitute Departmental action subject to judicial review 
under 5 U.S.C. 704, unless when an appeal is filed, the official to whom 
the appeal is made determines that public safety, protection of trust 
resources, or other public exigency requires that the decision be made 
effective immediately.
    (b) Decisions made by officials of the Bureau of Indian Affairs 
shall be effective when the time for filing a notice of appeal has 
expired and no notice of appeal has been filed.
    (c) Decisions made by the Assistant Secretary--Indian Affairs shall 
be final for the Department and effective immediately unless the 
Assistant Secretary--Indian Affairs provides otherwise in the decision.

[54 FR 6480, Feb. 10, 1989; 54 FR 7666, Feb. 22, 1989]



Sec. 2.7  Notice of administrative decision or action.

    (a) The official making a decision shall give all interested parties 
known to the decisionmaker written notice of the decision by personal 
delivery or mail.
    (b) Failure to give such notice shall not affect the validity of the 
decision or action but the time to file a notice of appeal regarding 
such a decision shall not begin to run until notice has been given in 
accordance with paragraph (c) of this section.
    (c) All written decisions, except decisions which are final for the 
Department pursuant to Sec. 2.6(c), shall include a statement that the 
decision may be appealed pursuant to this part, identify the official to 
whom it may be appealed and indicate the appeal procedures, including 
the 30-day time limit for filing a notice of appeal.

[54 FR 6480, Feb. 10, 1989; 54 FR 7666, Feb. 22, 1989]



Sec. 2.8  Appeal from inaction of official.

    (a) A person or persons whose interests are adversely affected, or 
whose ability to protect such interests is impeded by the failure of an 
official to act on a request to the official, can make the official's 
inaction the subject of appeal, as follows:
    (1) Request in writing that the official take the action originally 
asked of him/her;
    (2) Describe the interest adversely affected by the official's 
inaction, including a description of the loss, impairment or impediment 
of such interest caused by the official's inaction;
    (3) State that, unless the official involved either takes action on 
the merits of the written request within 10 days of receipt of such 
request by the official, or establishes a date by which action will be 
taken, an appeal shall be filed in accordance with this part.
    (b) The official receiving a request as specified in paragraph (a) 
of this section must either make a decision on the merits of the initial 
request within 10 days from receipt of the request for a decision or 
establish a reasonable later date by which the decision shall be made, 
not to exceed 60 days from the

[[Page 12]]

date of request. If an official establishes a date by which a requested 
decision shall be made, this date shall be the date by which failure to 
make a decision shall be appealable under this part. If the official, 
within the 10-day period specified in paragraph (a) of this section, 
neither makes a decision on the merits of the initial request nor 
establishes a later date by which a decision shall be made, the 
official's inaction shall be appealable to the next official in the 
process established in this part.

[54 FR 6480, Feb. 10, 1989; 54 FR 7666, Feb. 22, 1989]



Sec. 2.9  Notice of an appeal.

    (a) An appellant must file a written notice of appeal in the office 
of the official whose decision is being appealed. The appellant must 
also send a copy of the notice of appeal to the official who will decide 
the appeal and to all known interested parties. The notice of appeal 
must be filed in the office of the official whose decision is being 
appealed within 30 days of receipt by the appellant of the notice of 
administrative action described in Sec. 2.7. A notice of appeal that is 
filed by mail is considered filed on the date that it is postmarked. The 
burden of proof of timely filing is on the appellant. No extension of 
time shall be granted for filing a notice of appeal. Notices of appeal 
not filed in the specified time shall not be considered, and the 
decision involved shall be considered final for the Department and 
effective in accordance with Sec. 2.6(b).
    (b) When the appellant is an Indian or Indian tribe not represented 
by counsel, the official who issued the decision appealed shall, upon 
request of the appellant, render such assistance as is appropriate in 
the preparation of the appeal.
    (c) The notice of appeal shall:
    (1) Include name, address, and phone number of appellant.
    (2) Be clearly labeled or titled with the words ``NOTICE OF 
APPEAL.''
    (3) Have on the face of any envelope in which the notice is mailed 
or delivered, in addition to the address, the clearly visible words 
``NOTICE OF APPEAL.''
    (4) Contain a statement of the decision being appealed that is 
sufficient to permit identification of the decision.
    (5) If possible, attach either a copy of the notice of the 
administrative decision received under Sec. 2.7, or when an official 
has failed to make a decision or take any action, attach a copy of the 
appellant's request for a decision or action under Sec. 2.8 with a 
written statement that the official failed to make a decision or take 
any action or to establish a date by which a decision would be made upon 
the request.
    (6) Certify that copies of the notice of appeal have been served on 
interested parties, as prescribed in Sec. 2.12(a).



Sec. 2.10  Statement of reasons.

    (a) A statement of reasons shall be filed by the appellant in every 
appeal, and shall be accompanied by or otherwise incorporate all 
supporting documents.
    (b) The statement of reasons may be included in or filed with the 
notice of appeal.
    (c) If the statement of reasons is not filed with the notice of 
appeal, the appellant shall file a separate statement of reasons in the 
office of the official whose decision is being appealed within 30 days 
after the notice of appeal was filed in that office.
    (d) The statement of reasons whether filed with the notice of appeal 
or filed separately should:
    (1) Be clearly labeled ``STATEMENT OF REASONS''.
    (2) Have on the face of any envelope in which the statement of 
reasons is mailed or delivered, in addition to the address, the clearly 
visible words ``STATEMENT OF REASONS''.

[54 FR 6480, Feb. 10, 1989; 54 FR 7666, Feb. 22, 1989]



Sec. 2.11  Answer of interested party.

    (a) Any interested party wishing to participate in an appeal 
proceeding should file a written answer responding to the appellant's 
notice of appeal and statement of reasons. An answer should describe the 
party's interest.
    (b) An answer shall state the party's position or response to the 
appeal in any manner the party deems appropriate and may be accompanied 
by or

[[Page 13]]

otherwise incorporate supporting documents.
    (c) An answer must be filed within 30 days after receipt of the 
statement of reasons by the person filing an answer.
    (d) An answer and any supporting documents shall be filed in the 
office of the official before whom the appeal is pending as specified in 
Sec. 2.13.
    (e) An answer should:
    (1) Be clearly labelled or titled with the words ``ANSWER OF 
INTERESTED PARTY.''
    (2) Have on the face of any envelope in which the answer is mailed 
or delivered, in addition to the address, the clearly visible words 
``ANSWER OF INTERESTED PARTY,'' and
    (3) Contain a statement of the decision being appealed that is 
sufficient to permit identification of the decision.



Sec. 2.12  Service of appeal documents.

    (a) Persons filing documents in an appeal must serve copies of those 
documents on all other interested parties known to the person making the 
filing. A person serving a document either by mail or personal delivery 
must, at the time of filing the document, also file a written statement 
certifying service on each interested party, showing the document 
involved, the name and address of the party served, and the date of 
service.
    (b) If an appeal is filed with the Interior Board of Indian Appeals, 
a copy of the notice of appeal shall also be sent to the Assistant 
Secretary--Indian Affairs. The notice of appeal sent to the Interior 
Board of Indian Appeals shall certify that a copy has been sent to the 
Assistant Secretary--Indian Affairs.
    (c) If the appellant is an Indian or Indian tribe not represented by 
counsel, the official with whom the appeal is filed (i.e., official 
making the decision being appealed) shall, in the manner prescribed in 
this section, personally or by mail serve a copy of all appeal documents 
on the official who will decide the appeal and on each interested party 
known to the official making such service.
    (d) Service of any document under this part shall be by personal 
delivery or by mail to the record address as specified in Sec. 2.14. 
Service on a tribe shall be to the principal or designated tribal 
official or to the governing body.
    (e) In all cases where a party is represented by an attorney in an 
appeal, service of any document on the attorney is service on the party 
represented. Where a party is represented by more than one attorney, 
service on any one attorney is sufficient. The certificate of service on 
an attorney shall include the name of the party whom the attorney 
represents and indicate that service was made on the attorney 
representing that party.
    (f) When an official deciding an appeal determines that there has 
not been service of a document affecting a person's interest, the 
official shall either serve the document on the person or direct the 
appropriate legal counsel to serve the document on the person and allow 
the person an opportunity to respond.

[54 FR 6480, Feb. 10, 1989; 54 FR 7666, Feb. 22, 1989]



Sec. 2.13  Filing documents.

    (a) An appeal document is properly filed with an official of the 
Bureau of Indian Affairs:
    (1) By personal delivery during regular business hours to the person 
designated to receive mail in the immediate office of the official, or
    (2) By mail to the facility officially designated for receipt of 
mail addressed to the official; the document is considered filed by mail 
on the date that it is postmarked.
    (b) Bureau of Indian Affairs offices receiving a misdirected appeal 
document shall forward the document to the proper office promptly. If a 
person delivers an appeal document to the wrong office or mails an 
appeal document to an incorrect address, no extension of time should be 
allowed because of the time necessary for a Bureau office to redirect 
the document to the correct address.
    (c) Notwithstanding any other provision of this section, an official 
deciding an appeal shall allow late filing of a misdirected document, 
including a notice of appeal, where the official finds that the 
misdirection is the fault of the government.

[[Page 14]]



Sec. 2.14  Record address.

    (a) Every interested party who files a document in connection with 
an appeal shall, when he/she files the document, also indicate his/her 
address. Thereafter, any change of address shall be promptly reported to 
the official with whom the previous address was filed. The most current 
address on file under this subsection shall be deemed the proper address 
for all purposes under this part.
    (b) The successors in interest of a party shall also promptly inform 
the official specified in paragraph (a) of this section of their 
interest in the appeal and their address.
    (c) An appellant or interested party failing to file an address or 
change of address as specified in this section may not object to lack of 
notice or service attributable to his/her failure to indicate a new 
address.



Sec. 2.15  Computation of time.

    In computing any period of time prescribed or allowed in this part, 
calendar days shall be used. Computation shall not include the day on 
which a decision being appealed was made, service or notice was 
received, a document was filed, or other event occurred causing time to 
begin to run. Computation shall include the last day of the period, 
unless it is a Saturday, a Sunday, or a legal holiday, in which event 
the period runs until the end of the next day which is not a Saturday, a 
Sunday, or a legal holiday.



Sec. 2.16  Extensions of time.

    An official to whom an appeal is made may, upon a showing of good 
cause by a party and with notice to all other parties, extend the period 
for filing or serving any document; provided, however, that no extension 
will be granted for filing a notice of appeal under Sec. 2.9 of this 
part or serve by itself to extend any period specified by law or 
regulation other than in this part.



Sec. 2.17  Summary dismissal.

    (a) An appeal under this part will be dismissed if the notice of 
appeal is not filed within the time specified in Sec. 2.9(a).
    (b) An appeal under this part may be subject to summary dismissal 
for the following causes:
    (1) If after the appellant is given an opportunity to amend them, 
the appeal documents do not state the reasons why the appellant believes 
the decision being appealed is in error, or the reasons for the appeal 
are not otherwise evident in the documents, or
    (2) If the appellant has been required to post a bond and fails to 
do so.



Sec. 2.18  Consolidation of appeals.

    Separate proceedings pending before one official under this part and 
involving common questions of law or fact may be consolidated by the 
official conducting such proceedings, pursuant to a motion by any party 
or on the initiative of the official.



Sec. 2.19  Action by Area Directors and Education Programs 

officials on appeal.

    (a) Area Directors, Area Education Programs Administrators, Agency 
Superintendents for Education, Presidents of Post-Secondary Schools and 
the Deputy to the Assistant Secretary--Indian Affairs/Director (Indian 
Education Programs) shall render written decisions in all cases appealed 
to them within 60 days after all time for pleadings (including all 
extensions granted) has expired. The decision shall include a statement 
that the decision may be appealed pursuant to this part, identify the 
official to whom it may be appealed and indicate the appeal procedures, 
including the 30-day time limit for filing a notice of appeal.
    (b) A copy of the decision shall be sent to the appellant and each 
known interested party by certified or registered mail, return receipt 
requested. Such receipts shall become a permanent part of the record.



Sec. 2.20  Action by the Assistant Secretary--Indian Affairs on appeal.

    (a) When a decision is appealed to the Interior Board of Indian 
Appeals, a copy of the notice of appeal shall be sent to the Assistant 
Secretary--Indian Affairs.
    (b) The notice of appeal sent to the Interior Board of Indian 
Appeals shall

[[Page 15]]

certify that a copy has been sent to the Assistant Secretary--Indian 
Affairs.
    (c) In accordance with the provisions of Sec. 4.332(b) of title 43 
of the Code of Federal Regulations, a notice of appeal to the Board of 
Indian Appeals shall not be effective until 20 days after receipt by the 
Board, during which time the Assistant Secretary--Indian Affairs shall 
have authority to decide to:
    (1) Issue a decision in the appeal, or
    (2) Assign responsibility to issue a decision in the appeal to a 
Deputy to the Assistant Secretary--Indian Affairs.

The Assistant Secretary--Indian Affairs will not consider petitions to 
exercise this authority. If the Assistant Secretary--Indian Affairs 
decides to issue a decision in the appeal or to assign responsibility to 
issue a decision in the appeal to a Deputy to the Assistant Secretary--
Indian Affairs, he/she shall notify the Board of Indian Appeals, the 
deciding official, the appellant, and interested parties within 15 days 
of his/her receipt of a copy of the notice of appeal. Upon receipt of 
such notification, the Board of Indian Appeals shall transfer the appeal 
to the Assistant Secretary--Indian Affairs. The decision shall be signed 
by the Assistant Secretary--Indian Affairs or a Deputy to the Assistant 
Secretary--Indian Affairs within 60 days after all time for pleadings 
(including all extensions granted) has expired. If the decision is 
signed by the Assistant Secretary--Indian Affairs, it shall be final for 
the Department and effective immediately unless the Assistant 
Secretary--Indian Affairs provides otherwise in the decision. Except as 
otherwise provided in Sec. 2.20(g), if the decision is signed by a 
Deputy to the Assistant Secretary--Indian Affairs, it may be appealed to 
the Board of Indian Appeals pursuant to the provisions of 43 CFR part 4, 
subpart D.
    (d) A copy of the decision shall be sent to the appellant and each 
known interested party by certified or registered mail, return receipt 
requested. Such receipts shall become a permanent part of the record.
    (e) If the Assistant Secretary--Indian Affairs or the Deputy to the 
Assistant Secretary--Indian Affairs to whom the authority to issue a 
decision has been assigned pursuant to Sec. 2.20(c) does not make a 
decision within 60 days after all time for pleadings (including all 
extensions granted) has expired, any party may move the Board of Indian 
Appeals to assume jurisdiction subject to 43 CFR 4.337(b). A motion for 
Board decision under this section shall invest the Board with 
jurisdiction as of the date the motion is received by the Board.
    (f) When the Board of Indian Appeals, in accordance with 43 CFR 
4.337(b), refers an appeal containing one or more discretionary issues 
to the Assistant Secretary--Indian Affairs for further consideration, 
the Assistant Secretary--Indian Affairs shall take action on the appeal 
consistent with the procedures in this section.
    (g) The Assistant Secretary--Indian Affairs shall render a written 
decision in an appeal from a decision of the Deputy to the Assistant 
Secretary--Indian Affairs/Director (Indian Education Programs) within 60 
days after all time for pleadings (including all extensions granted) has 
expired. A copy of the decision shall be sent to the appellant and each 
known interested party by certified or registered mail, return receipt 
requested. Such receipts shall become a permanent part of the record. 
The decision shall be final for the Department and effective immediately 
unless the Assistant Secretary--Indian Affairs provides otherwise in the 
decision.



Sec. 2.21  Scope of review.

    (a) When a decision has been appealed, any information available to 
the reviewing official may be used in reaching a decision whether part 
of the record or not.
    (b) When the official deciding an appeal believes it appropriate to 
consider documents or information not contained in the record on appeal, 
the official shall notify all interested parties of the information and 
they shall be given not less than 10 days to comment on the information 
before the appeal is decided. The deciding official shall include in the 
record copies of documents or a description of the information used in 
arriving at the decision. Except where disclosure of the actual 
documents used may be prohibited by law, copies of the information shall 
be made

[[Page 16]]

available to the parties upon request and at their expense.



PART 5_PREFERENCE IN EMPLOYMENT--Table of Contents




Sec.
5.1 Definitions.
5.2 Appointment actions.
5.3 Application procedure for preference eligibility.
5.4 Information collection.

    Authority: 4 Stat. 737, 25 U.S.C. 43; 22 Stat. 88, 25 U.S.C. 46; 28 
Stat. 313, 25 U.S.C. 44; 24 Stat. 389, 25 U.S.C. 348; and 48 Stat. 986, 
25 U.S.C. 472 and 479.



Sec. 5.1  Definitions.

    For purposes of making appointments to vacancies in all positions in 
the Bureau of Indian Affairs a preference will be extended to persons of 
Indian descent who are:
    (a) Members of any recognized Indian tribe now under Federal 
Jurisdiction;
    (b) Descendants of such members who were, on June 1, 1934, residing 
within the present boundaries of any Indian reservation;
    (c) All others of one-half or more Indian blood of tribes indigenous 
to the United States;
    (d) Eskimos and other aboriginal people of Alaska; and
    (e) For one (1) year or until the Osage Tribe has formally 
organized, whichever comes first, effective January 5, 1989, a person of 
at least one-quarter degree Indian ancestry of the Osage Tribe of 
Indians, whose rolls were closed by an act of Congress.

[43 FR 2393, Jan. 17, 1978. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 54 FR 283, Jan. 5, 1989]



Sec. 5.2  Appointment actions.

    (a) Preference will be afforded a person meeting any one of the 
standards of Sec. 5.1 whether the appointment involves initial hiring, 
reinstatement, transfer, reassignment or promotion.
    (b) Preference eligibles may be given a Schedule A excepted 
appointment under Exception Number 213.3112(a)(7). However, if the 
individuals are within reach on a Civil Service Register, they may be 
given a competitive appointment.

[43 FR 2393, Jan. 17, 1978. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 49 FR 12702, Mar. 30, 1984]



Sec. 5.3  Application procedure for preference eligibility.

    (a) Proof of eligibility must be submitted with the person's 
application for a position.
    (b) In order for a person to be considered a preference eligible 
according to the standards of Sec. 5.1, they must submit proof of 
membership, descendancy or degree of Indian ancestry as indicated on 
rolls or records acceptable to the Secretary.

[43 FR 2393, Jan. 17, 1978. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 5.4  Information collection.

    The Office of Management and Budget has informed the Department of 
the Interior that the information collection requirements contained in 
part 5 need not be reviewed by them under the Paperwork Reduction Act 
(44 U.S.C. 3501 et seq.).

[54 FR 283, Jan. 5, 1989]

[[Page 17]]



                       SUBCHAPTER B_LAW AND ORDER





PART 10_INDIAN COUNTRY DETENTION FACILITIES AND PROGRAMS--Table

of Contents




Sec.
10.1 Why are policies and standards needed for Indian country detention 
          programs?
10.2 Who is responsible for developing and maintaining the policies and 
          standards for detention and holding facilities in Indian 
          country?
10.3 Who must follow these policies and standards?
10.4 What happens if the policies and standards are not followed?
10.5 Where can I find the policies and standards for the administration, 
          operation, services, and physical plant/construction of Indian 
          country detention, community residential, and holding 
          facilities?
10.6 How is the BIA assured that the policies and standards are being 
          applied uniformly and facilities are properly accredited?
10.7 Where do I find help or receive technical assistance in complying 
          with the policies and standards?
10.8 What minimum records must be kept and reports made at each 
          detention, community residential, or holding facility in 
          Indian country?
10.9 If a person is detained or incarcerated in an Indian country 
          detention, community residential, or holding facility, how 
          would they know what their rights, privileges, safety, 
          protection and expected behavior would be?
10.10 What happens if I believe my civil rights have been violated while 
          incarcerated in an Indian country detention or holding 
          facility?
10.11 How would someone detained or incarcerated, or their 
          representative, get the BIA policies and standards?

    Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 13, 2417, 2453, and 2802.

    Source: 61 FR 34374, July 2, 1996, unless otherwise noted.



Sec. 10.1  Why are policies and standards needed for Indian country 

detention programs?

    Policies and standards are required to ensure that all Bureau of 
Indian Affairs (BIA) and tribal entities that receive Federal funding 
for the operation, maintenance, design and construction or renovation of 
detention facilities, community residential, or holding facilities are 
supporting constitutional rights and are complying with the Indian Law 
Enforcement Reform Act of 1990. Self-governance tribes and tribes with 
limited jurisdiction are encouraged to follow the regulations in this 
part, and other BIA manuals and handbooks. The provision for funding 
tribes for detention programs under the Indian Alcohol and Substance 
Abuse Prevention and Treatment Act, Public Law 99-570, (25 U.S.C. 2453) 
requires standards and procedures for such facilities.

[61 FR 34374, July 2, 1996; 61 FR 65473, Dec. 13, 1996]



Sec. 10.2  Who is responsible for developing and maintaining the 

policies and standards for detention and holding facilities in 
Indian country?

    The Director, Office of Law Enforcement Services who reports to the 
Deputy Commissioner of Indian Affairs, BIA, establishes policies, 
procedures, and standards for the operations, design, planning, 
maintenance, renovation, and construction of detention programs in the 
BIA and by tribal contract under Indian Self-Determination and Education 
Assistance Act, Public Law 93-638, as amended, 25 U.S.C. 450.



Sec. 10.3  Who must follow these policies and standards?

    You must follow these minimum policies, standards, and guides if you 
are part of the BIA or tribal detention or rehabilitation program 
receiving Federal funding. Self-governance tribes and tribes with 
limited jurisdiction are encouraged to follow the regulations in this 
part, and other BIA manuals and handbooks. Detention officers, guards, 
cooks and other staff conducting business in the facilities must meet 
minimum standards of law enforcement personnel as prescribed in 25 CFR 
part 12, subpart D, ``Qualifications and Training Requirements.'' Those 
tribal programs not receiving Federal funding under the Indian Self-
Determination and Education Assistance Act (Public Law 93-638, as 
amended) who wish to be accredited are encouraged to use the policies 
and standards in that

[[Page 18]]

part since they have been modified and approved for Indian country.



Sec. 10.4  What happens if the policies and standards are not followed?

    The risk for human and civil rights violations due to lack of common 
standards will subject the operation and/or facility to unnecessary 
exposure to liability. Lack of employee standards, particularly for 
training and background checks, will increase the risk of misconduct and 
vicarious liability of the tribes and the Federal government through 
tort claims. Funding sources for detention programs may become scarce to 
nonexistent because of contract noncompliance. The tribes' opportunity 
to receive funding from potential resource sharing agreements with other 
law enforcement agencies may be damaged because the facility may have to 
be closed for cause due to violation of the life safety codes.



Sec. 10.5  Where can I find the policies and standards for the 

administration, operation, services, and physical 
plant/construction of Indian country detention, community 
residential, and holding facilities?

    The Bureau of Indian Affairs, Department of the Interior, maintains 
a manual of policies and procedures called the Bureau of Indian Affairs 
Manual (BIAM). The chapter 69 BIAM titled ``Indian Country Detention 
Facilities and Programs,'' contains the BIA's policies, procedures, and 
standards for detention and holding programs in Indian country. The 
standards for the programs within the BIAM are in handbook format for 
easy field reference and use. Copies of the chapter 69 BIAM and 
handbooks may be obtained from the Director, Office of Law Enforcement 
Services.

[61 FR 34374, July 2, 1996; 61 FR 65473, Dec. 13, 1996]



Sec. 10.6  How is the BIA assured that the policies and standards are

being applied uniformly and facilities are properly accredited?

    The tribes and BIA programs will use a phased approach to meeting 
all non-mandatory detention standards and will document progress on 
uniform reporting. The BIA Office of Law Enforcement Services will 
conduct periodic operational evaluations for oversight.



Sec. 10.7  Where do I find help or receive technical assistance in 

complying with the policies and standards?

    The BIA has a trained Detention Specialist on the staff of the 
Office of Law Enforcement Services, Albuquerque, New Mexico, who is 
available to conduct evaluations and provide technical assistance or 
guidance in all facets of Indian country detention programs.



Sec. 10.8  What minimum records must be kept and reports made at

each detention, community residential, or holding facility in 
Indian country?

    The Director, Office of Law Enforcement Services, BIA, will develop 
all necessary requirements for maintaining records, reporting data, and 
archiving information. These requirements will be published in 69 BIAM, 
``Indian Country Detention Facilities and Programs.''

[61 FR 34374, July 2, 1996; 61 FR 65473, Dec. 13, 1996]



Sec. 10.9  If a person is detained or incarcerated in an Indian

country detention, community residential, or holding facility, 
how would they know what their rights, privileges, safety, 
protection and expected behavior would be?

    When an individual is incarcerated in an Indian country detention, 
community residential, or holding facility, he/she will be given, or in 
some cases notified of the availability of, an Inmate Handbook. This 
book of guidelines describes in detail the inmate's rights, privileges, 
protection and safety, cleanliness and sanitation, and general health 
and nutritional standards. The Inmate Handbook describes the emergency 
evacuation procedures, medical, counseling, rehabilitation services, 
visitation procedures, and other appropriate information. The Inmate 
Handbook is published by the Director, Office of Law Enforcement 
Services and maintained by the detention facility administrator at each 
facility location.

[61 FR 34374, July 2, 1996; 61 FR 65473, Dec. 13, 1996]

[[Page 19]]



Sec. 10.10  What happens if I believe my civil rights have been 

violated while incarcerated in an Indian country detention or 
holding facility?

    All allegations of civil rights violations must be reported 
immediately to the Internal Affairs Branch of the Office of Law 
Enforcement Services. This office will ensure that such allegations are 
immediately reported to the Civil Rights Division of the U.S. Department 
of Justice through established procedures. The BIA Internal Affairs 
Branch may also investigate alleged violations and make recommendations 
for additional action as necessary. Detailed instructions on the 
procedure to report violations can be found in the Inmate Handbook.



Sec. 10.11  How would someone detained or incarcerated, or their

representative, get the BIA policies and standards?

    At each detention, community residential, or holding facility 
located in a tribal jurisdiction where federal funds are used for 
operations or maintenance programs, the BIA's policies, standards, and 
procedures will be made available upon request. The Inmate Handbook will 
be made available to all persons at the time they are incarcerated or 
detained in a facility. There may be times when this may be delayed due 
to the physical or mental condition of the person at time of 
incarceration. In these cases, the Inmate Handbook will be made 
available when the person is deemed receptive and cognizant by the 
detention officer in charge. All policies, standards, procedures, and 
guidelines are available at each facility to the public or by writing to 
the Director, Office of Law Enforcement Services.

[61 FR 34374, July 2, 1996; 61 FR 65473, Dec. 13, 1996]



PART 11_LAW AND ORDER ON INDIAN RESERVATIONS--Table of Contents




                   Subpart A_Application; Jurisdiction

Sec.
11.100 Listing of Courts of Indian Offenses.
11.101 Prospective application of regulations.
11.102 Criminal jurisdiction; limitation of actions.
11.103 Civil jurisdiction; limitation of actions.
11.104 Jurisdictional limitations.

     Subpart B_Courts of Indian Offenses; Personnel; Administration

11.200 Composition of court.
11.201 Appointment of magistrates.
11.202 Removal of magistrates.
11.203 Court clerks.
11.204 Prosecutors.
11.205 Standards governing appearance of attorneys and lay counselors.
11.206 Court records.
11.207 Cooperation of Bureau of Indian Affairs employees.
11.208 Payment of judgments from individual Indian money accounts.
11.209 Disposition of fines.

                      Subpart C_Criminal Procedure

11.300 Complaints.
11.301 Arrests.
11.302 Arrest warrants.
11.303 Notification of rights prior to custodial interrogation.
11.304 Summons in lieu of warrant.
11.305 Search warrants.
11.306 Search without a warrant.
11.307 Disposition of seized property.
11.308 Commitments.
11.309 Arraignments.
11.310 Bail.
11.311 Subpoenas.
11.312 Witness fees.
11.313 Trial procedure.
11.314 Jury trials.
11.315 Sentencing.
11.316 Probation.
11.317 Parole.
11.318 Extradition.

                       Subpart D_Criminal Offenses

11.400 Assault.
11.401 Recklessly endangering another person.
11.402 Terroristic threats.
11.403 Unlawful restraint.
11.404 False imprisonment.
11.405 Interference with custody.
11.406 Criminal coercion.
11.407 Sexual assault.
11.408 Indecent exposure.
11.409 Reckless burning or exploding.
11.410 Criminal mischief.
11.411 Criminal trespass.
11.412 Theft.
11.413 Receiving stolen property.
11.414 Embezzlement.
11.415 Fraud.
11.416 Forgery.
11.417 Extortion.

[[Page 20]]

11.418 Misbranding.
11.419 Unauthorized use of automobiles and other vehicles.
11.420 Tampering with records.
11.421 Bad checks.
11.422 Unauthorized use of credit cards.
11.423 Defrauding secured creditors.
11.424 Neglect of children.
11.425 Persistent non-support.
11.426 Bribery.
11.427 Threats and other improper influence in official and political 
          matters.
11.428 Retaliation for past official action.
11.429 Perjury.
11.430 False alarms.
11.431 False reports.
11.432 Impersonating a public servant.
11.433 Disobedience to lawful order of court.
11.434 Resisting arrest.
11.435 Obstructing justice.
11.436 Escape.
11.437 Bail jumping.
11.438 Flight to avoid prosecution or judicial process.
11.439 Witness tampering.
11.440 Tampering with or fabricating physical evidence.
11.441 Disorderly conduct.
11.442 Riot; failure to disperse.
11.443 Harassment.
11.444 Carrying concealed weapons.
11.445 Driving violations.
11.446 Cruelty to animals.
11.447 Maintaining a public nuisance.
11.448 Abuse of office.
11.449 Violation of an approved tribal ordinance.
11.450 Maximum fines and sentences of imprisonment.

                         Subpart E_Civil Actions

11.500 Law applicable to civil actions.
11.501 Judgments in civil actions.
11.502 Costs in civil actions.
11.503 Applicable civil procedure.
11.504 Applicable rules of evidence.

                      Subpart F_Domestic Relations

11.600 Marriages.
11.601 Marriage licenses.
11.602 Solemnization.
11.603 Invalid or prohibited marriages.
11.604 Declaration of invalidity.
11.605 Dissolution.
11.606 Dissolution proceedings.
11.607 Temporary orders and temporary injunctions.
11.608 Final decree; disposition of property; maintenance; child 
          support; custody.
11.609 Determination of paternity and support.
11.610 Appointment of guardians.
11.611 Change of name.

                      Subpart G_Probate Proceedings

11.700 Probate jurisdiction.
11.701 Duty to present will for probate.
11.702 Proving and admitting will.
11.703 Petition and order to probate estate.
11.704 Appointment and duties of executor or administrator.
11.705 Removal of executor or administrator.
11.706 Appointment and duties of appraiser.
11.707 Claims against estate.
11.708 Sale of property.
11.709 Final account.
11.710 Determination of the court.
11.711 Descent and distribution.
11.712 Closing estate.
11.713 Small estates.

                     Subpart H_Appellate Proceedings

11.800 Jurisdiction of appellate division.
11.801 Procedure on appeal.
11.802 Judgment against surety.
11.803 Record on appeal.
11.804 Briefs and memoranda.
11.805 Oral argument.
11.806 Rules of court.

                       Subpart I_Children's Court

11.900 Definitions.
11.901 The children's court established.
11.902 Non-criminal proceedings.
11.903 Presenting officer.
11.904 Guardian ad litem.
11.905 Jurisdiction.
11.906 Rights of parties.
11.907 Transfer to Court of Indian Offenses.
11.908 Court records.
11.909 Law enforcement records.
11.910 Expungement.
11.911 Appeal.
11.912 Contempt of court.

                  Subpart J_Juvenile Offender Procedure

11.1000 Complaint.
11.1001 Warrant.
11.1002 Custody.
11.1003 Law enforcement officer's duties.
11.1004 Detention and shelter care.
11.1005 Preliminary inquiry.
11.1006 Investigation by the presenting officer.
11.1007 Petition.
11.1008 Date of hearing.
11.1009 Summons.
11.1010 Adjudicatory hearing.
11.1011 Dispositional hearing.
11.1012 Dispositional alternatives.
11.1013 Modification of dispositional order.
11.1014 Medical examination.

                Subpart K_Minor-in-Need-of-Care Procedure

11.1100 Complaint.

[[Page 21]]

11.1101 Warrant.
11.1102 Custody.
11.1103 Law enforcement officer's duties.
11.1104 Shelter care.
11.1105 Preliminary inquiry.
11.1106 Investigation by the presenting officer.
11.1107 Petition.
11.1108 Date of hearing.
11.1109 Summons.
11.1110 Minor-in-need-of-care adjudicatory hearing.
11.1111 Minor-in-need-of-care dispositional hearing.
11.1112 Dispositional alternatives.
11.1113 Modification of dispositional order.
11.1114 Termination.
11.1115 Information collection.

    Authority: 5 U.S.C. 301; R.S. 463, 25 U.S.C. 2; R.S. 465, 25 U.S.C. 
9; 42 Stat. 208, 25 U.S.C. 13; 38 Stat. 586, 25 U.S.C. 200.

    Source: 58 FR 54411, Oct. 21, 1993, unless otherwise noted.



                   Subpart A_Application; Jurisdiction



Sec. 11.100  Listing of Courts of Indian Offenses.

    (a) Except as otherwise provided in this title, the regulations 
under this part are applicable to the Indian country (as defined in 18 
U.S.C. 1151) occupied by the following tribes:
    (1) Red Lake Band of Chippewa Indians (Minnesota).
    (2) Confederated Tribes of the Goshute Reservation (Nevada).
    (3) Lovelock Paiute Tribe (Nevada).
    (4) Te-Moak Band of Western Shoshone Indians (Nevada).
    (5) Yomba Shoshone Tribe (Nevada).
    (6) Kootenai Tribe (Idaho).
    (7) Shoalwater Bay Tribe (Washington).
    (8) Eastern Band of Cherokee Indians (North Carolina).
    (9) For the following tribes located in the former Oklahoma 
Territory (Oklahoma):
    (i) Absentee Shawnee Tribe of Indians of Oklahoma
    (ii) Apache Tribe of Oklahoma
    (iii) Caddo Tribe of Oklahoma
    (iv) Cheyenne-Arapaho Tribe of Oklahoma
    (v) Citizen Band of Potawatomi Indians of Oklahoma
    (vi) Comanche Tribe of Oklahoma (except Comanche Children's Court)
    (vii) Delaware Tribe of Western Oklahoma
    (viii) Fort Sill Apache Tribe of Oklahoma
    (ix) Iowa Tribe of Oklahoma
    (x) Kaw Tribe of Oklahoma
    (xi) Kickapoo Tribe of Oklahoma
    (xii) Kiowa Tribe of Oklahoma
    (xiii) Otoe-Missouria Tribe of Oklahoma
    (xiv) Pawnee Tribe of Oklahoma
    (xv) Ponca Tribe of Oklahoma
    (xvi) Tonkawa Tribe of Oklahoma
    (xvii) Wichita and Affiliated Tribes of Oklahoma.
    (10) Hoopa Valley Tribe, Yurok Tribe, and Coast Indian Community of 
California (California Jurisdiction limited to special fishing 
regulations).
    (11) Louisiana Area (includes Coushatta and other tribes in the 
State of Louisiana which occupy Indian country and which accept the 
application of this part);

Provided that this part shall not apply to any Louisiana tribe other 
than the Coushatta Tribe until notice of such application has been 
published in the Federal Register.
    (12) For the following tribes located in the former Indian Territory 
(Oklahoma):
    (i) Chickasaw Nation
    (ii) Choctaw Nation
    (iii) Thlopthlocco Tribal Town
    (iv) Seminole Nation
    (v) Eastern Shawnee Tribe
    (vi) Miami Tribe
    (vii) Modoc Tribe
    (viii) Ottawa Tribe
    (ix) Peoria Tribe
    (x) Quapaw Tribe
    (xi) Wyandotte Tribe
    (xii) Seneca-Cayuga Tribe
    (xiii) Osage Tribe.
    (13) Ute Mountain Ute Tribe (Colorado).
    (14) Santa Fe Indian School Property, including the Santa Fe Indian 
Health Hospital, and the Albuquerque Indian School Property (land held 
in trust for the 19 Pueblos of New Mexico).
    (15) Winnemucca Indian Tribe (land in trust for the Winnemucca 
Indian Tribe of Nevada).
    (b) It is the purpose of the regulations in this part to provide 
adequate machinery for the administration of justice for Indian tribes 
in those areas

[[Page 22]]

of Indian country where tribes retain jurisdiction over Indians that is 
exclusive of state jurisdiction but where tribal courts have not been 
established to exercise that jurisdiction.
    (c) The regulations in this part shall continue to apply to tribes 
listed under Sec. 11.100(a) until a law and order code which includes 
the establishment of a court system has been adopted by the tribe in 
accordance with its constitution and by-laws or other governing 
documents, has become effective, and the Assistant Secretary--Indian 
Affairs or his or her designee has received a valid tribal enactment 
identifying the effective date of the code's implementation, and the 
name of the tribe has been deleted from the listing of Courts of Indian 
Offenses under Sec. 11.100(a).
    (d) For the purposes of the enforcement of the regulations in this 
part, an Indian is defined as a person who is a member of an Indian 
tribe which is recognized by the Federal Government as eligible for 
services from the BIA, and any other individual who is an ``Indian'' for 
purposes of 18 U.S.C. 1152-1153.
    (e) The governing body of each tribe occupying the Indian country 
over which a Court of Indian Offenses has jurisdiction may enact 
ordinances which, when approved by the Assistant Secretary--Indian 
Affairs or his or her designee, shall be enforceable in the Court of 
Indian Offenses having jurisdiction over the Indian country occupied by 
that tribe, and shall supersede any conflicting regulation in this part.
    (f) Each Court of Indian Offenses shall apply the customs of the 
tribe occupying the Indian country over which it has jurisdiction to the 
extent that they are consistent with the regulations of this part.

[58 FR 54411, Oct. 21, 1993, as amended at 59 FR 48722, Sept. 22, 1994; 
61 FR 10674, Mar. 15, 1996; 66 FR 22121, May 3, 2001; 66 FR 48087, Sept. 
18, 2001; 67 FR 44355, July 2, 2002; 67 FR 59783, Sept. 24, 2002; 68 FR 
44616, July 30, 2003; 69 FR 51559, Aug. 20, 2004; 70 FR 15761, Mar. 29, 
2005]



Sec. 11.101  Prospective application of regulations.

    Civil and criminal causes of actions arising prior to the effective 
date of these regulations shall not abate but shall be determined in 
accordance with the regulations in effect at the time the cause arose.



Sec. 11.102  Criminal jurisdiction; limitation of actions.

    (a) Except as otherwise provided in this title, each Court of Indian 
Offenses shall have jurisdiction over any action by an Indian (hereafter 
referred to as person) that is made a criminal offense under this part 
and that occurred within the Indian country subject to the court's 
jurisdiction.
    (b) No person shall be prosecuted, tried or punished for any offense 
unless the complaint is filed within five years after such offense shall 
have been committed.



Sec. 11.103  Civil jurisdiction; limitation of actions.

    (a) Except as otherwise provided in this title, each Court of Indian 
Offenses shall have jurisdiction over any civil action arising within 
the territorial jurisdiction of the court in which the defendant is an 
Indian, and of all other suits between Indians and non-Indians which are 
brought before the court by stipulation of the parties.
    (b) Any civil action commenced in a Court of Indian Offenses shall 
be barred unless the complaint is filed within three years after the 
right of action first accrues.



Sec. 11.104  Jurisdictional limitations.

    (a) No Court of Indian Offenses may exercise any jurisdiction over a 
Federal or state official that it could not exercise if it were a tribal 
court.
    (b) Unless otherwise provided by a resolution or ordinance of the 
tribal governing body of the tribe occupying the Indian country over 
which a Court of Indian country over which a Court of Indian Offenses 
has jurisdiction, no Court of Indian Offenses may adjudicate an election 
dispute or take jurisdiction over a suit against the tribe or adjudicate 
any internal tribal government dispute.
    (c) The decision of the BIA on who is a tribal official is binding 
in a Court of Indian Offenses.

[[Page 23]]

    (d) The Department of the Interior will accord the same weight to 
decisions of a Court of Indian Offenses that it accords to decisions of 
a tribal court.
    (e) A tribe may not be sued in a Court of Indian Offenses unless its 
tribal governing body explicitly waives its tribal immunity by tribal 
resolution or ordinance.



     Subpart B_Courts of Indian Offenses; Personnel; Administration



Sec. 11.200  Composition of court.

    (a) Each court shall be composed of a trial division and an 
appellate division.
    (b) A chief magistrate will be appointed for each court who will, in 
addition to other judicial duties, be responsible for the administration 
of the court and the supervision of all court personnel.
    (c) Appeals shall be heard by a panel of three magistrates who were 
not involved in the trial of the case.
    (d) Decisions of the appellate division are final and are not 
subject to administrative appeals within the Department of the Interior.



Sec. 11.201  Appointment of magistrates.

    (a) Each magistrate shall be appointed by the Assistant Secretary--
Indian Affairs or his or her designee subject to confirmation by a 
majority vote of the tribal governing body of the tribe occupying the 
Indian country over which the court has jurisdiction, or, in the case of 
multi-tribal courts, confirmation by a majority of the tribal governing 
bodies of the tribes under the jurisdiction of a Court of Indian 
Offenses.
    (b) Each magistrate shall hold office for a period of four years, 
unless sooner removed for cause or by reason of the abolition of the 
office, but is eligible for reappointment.
    (c) No person is eligible to serve as a magistrate of a Court of 
Indian Offenses who has ever been convicted of a felony or, within one 
year of the date of service or application, of a misdemeanor.
    (d) No magistrate shall be qualified to act as such wherein he or 
she has any direct conflicting interest, real or apparent.
    (e) A tribal governing body may set forth such other qualifications 
for magistrates of the Court of Indian Offenses as it deems appropriate, 
subject to the approval of the Assistant Secretary--Indian Affairs, or 
his or her designee.
    (f) A tribal governing body may also recommend requirements for the 
training of magistrates of the Court of Indian Offenses to the Assistant 
Secretary--Indian Affairs.



Sec. 11.202  Removal of magistrates.

    Any magistrate of a Court of Indian Offenses may be suspended, 
dismissed or removed by the Assistant Secretary--Indian Affairs, or his 
or her designee, for cause, upon the written recommendation of the 
tribal governing body, and, in the case of multi-tribal courts, upon the 
recommendation of a majority of the tribal governing bodies of the 
tribes under the jurisdiction of a Court of Indian Offenses, or pursuant 
to his or her own discretion.



Sec. 11.203  Court clerks.

    (a) Except as may otherwise be provided in a contract with the tribe 
occupying the Indian country over which the court has jurisdiction, the 
chief magistrate shall appoint a clerk of court for the Court of Indian 
Offenses within his or her jurisdiction, subject to the superintendent's 
approval.
    (b) The clerk shall render assistance to the court, to local law 
enforcement officers and to individual members of the tribe in the 
drafting of complaints, subpoenas, warrants, commitments, and other 
documents incidental to the functions of the court. The clerk shall also 
attend and keep a record of all proceedings of the court and manage all 
monies received by the court.
    (c) The clerk of court shall forward any monies received on 
judgments due to the person, agency, or corporation to which entitled, 
within 30 days unless directed otherwise by a magistrate of the Court of 
Indian Offenses.



Sec. 11.204  Prosecutors.

    Except as may otherwise be provided in a contract with the tribe 
occupying the Indian country over which the

[[Page 24]]

court has jurisdiction, the superintendent shall appoint a prosecutor 
for each Court of Indian Offenses within his or her jurisdiction.



Sec. 11.205  Standards governing appearance of attorneys and lay

counselors.

    (a) No defendant in a criminal proceeding shall be denied the right 
to counsel.
    (b) The chief magistrate shall prescribe in writing standards 
governing the admission and practice in the Court of Indian Offenses of 
professional attorneys and lay counselors.



Sec. 11.206  Court records.

    (a) Each Court of Indian Offenses shall keep a record of all 
proceedings of the court containing the title of the case, the names of 
the parties, the complaint, all pleadings, the names and addresses of 
all witnesses, the date of any hearing or trial, the name of any 
magistrate conducting such hearing or trial, the findings of the court 
or jury, the judgment and any other information the court determines is 
important to the case.
    (b) The record in each case shall be available for inspection by the 
parties to the case.
    (c) Except for cases in which a juvenile is a party or the subject 
of a proceeding, and for cases whose records have been sealed by the 
court, all case records shall be available for inspection by the public.
    (d) Such court records are part of the records of the BIA agency 
having jurisdiction over the Indian country where the Court of Indian 
Offenses is located and shall be protected in accordance with 44 U.S.C. 
3102.



Sec. 11.207  Cooperation by Bureau of Indian Affairs Employees.

    (a) No employee of the BIA may obstruct, interfere with, or control 
the functions of any Court of Indian Offenses, or influence such 
functions in any manner except as permitted by Federal statutes or the 
regulations in this part or in response to a request for advice or 
information from the court.
    (b) Employees of the BIA shall assist the court, upon its request, 
in the preparation and presentation of facts in the case and in the 
proper treatment of individual offenders.



Sec. 11.208  Payment of judgments from individual Indian money accounts.

    (a) Any Court of Indian Offenses may make application to the 
superintendent who administers the individual Indian money account of a 
defendant who has failed to satisfy a money judgment from the court to 
obtain payment of the judgment from funds in the defendant's account. 
The court shall certify the record of the case to the superintendent. If 
the superintendent so directs, the disbursing agent shall pay over to 
the injured party the amount of the judgment or such lesser amount as 
may be specified by the superintendent.
    (b) A judgment of a Court of Indian Offenses shall be considered a 
lawful debt in all proceedings held by the Department of the Interior or 
by a Court of Indian Offenses to distribute decedents' estates.



Sec. 11.209  Disposition of fines.

    All money fines imposed for the commission of an offense shall be in 
the nature of an assessment for the payment of designated court 
expenses. The fines assessed shall be paid over by the clerk of the 
court to the disbursing agent of the reservation for deposit as a 
``special deposit, court funds'' to the disbursing agent's official 
credit in the Treasury of the United States. The disbursing agent shall 
withdraw such funds, in accordance with existing regulations, upon order 
of the clerk of the court signed by a judge of the court for the payment 
of specified expenses. The disbursing agent and the clerk of the court 
shall keep an account of all such deposits and withdrawals available for 
public inspection.



                      Subpart C_Criminal Procedure



Sec. 11.300  Complaints.

    (a) A complaint is a written statement of the essential facts 
charging that a named individual(s) has committed a particular offense. 
All criminal prosecutions shall be initiated by a complaint filed with 
the court by a law enforcement officer and sworn to by a

[[Page 25]]

person having personal knowledge of the offense.
    (b) Complaints shall contain:
    (1) The signature of the complaining witness, or witnesses, sworn 
before a magistrate, a court clerk, a prosecutor, or any law enforcement 
officer.
    (2) A written statement by the complaining witness or witnesses 
having personal knowledge of the violation, describing in ordinary 
language the nature of the offense committed including the time and 
place as nearly as may be ascertained.
    (3) The name or description of the person alleged to have committed 
the offense.
    (4) A description of the offense charged and the section of the code 
allegedly violated.
    (c) Complaints must be submitted without unnecessary delay by a law 
enforcement officer to the prosecutor and, if he or she approves, to a 
judge to determine whether an arrest warrant or summons should be 
issued.
    (d) When an accused has been arrested without a warrant, a complaint 
shall be filed forthwith with the court for review as to whether 
probable cause exists to hold the accused, and in no instance shall a 
complaint be filed later than at the time of arraignment.



Sec. 11.301  Arrests.

    (a) Arrest is the taking of a person into police custody in order 
that he or she may be held to answer for a criminal offense.
    (b) No law enforcement officer shall arrest any person for a 
criminal offense except when:
    (1) The officer shall have a warrant signed by a magistrate 
commanding the arrest of such person, or the officer knows for a 
certainty that such a warrant has been issued; or
    (2) The offense shall occur in the presence of the arresting 
officer; or
    (3) The officer shall have probable cause to believe that the person 
arrested has committed an offense.



Sec. 11.302  Arrest warrants.

    (a) Each magistrate of a Court of Indian Offenses shall have the 
authority to issue warrants to apprehend any person the magistrate has 
probable cause to believe has committed a criminal offense in violation 
of the regulations under this part based on a written complaint filed 
with the court by a law enforcement officer and bearing the signature of 
the complainant.
    (b) The arrest warrant shall contain the following information:
    (1) Name or description and address, if known, of the person to be 
arrested.
    (2) Date of issuance of the warrant.
    (3) Description of the offense charged.
    (4) Signature of the issuing magistrate.
    (c) Such warrants may be served only by a BIA or tribal police 
officer or other officer commissioned to enforce the regulations of this 
part.



Sec. 11.303  Notification of rights prior to custodial interrogation.

    Prior to custodial interrogation, the suspect shall be advised of 
the following rights:
    (a) That he or she has the right to remain silent.
    (b) That any statements made by him or her may be used against him 
or her in court.
    (c) That he or she has the right to obtain counsel and, if indigent, 
to have counsel appointed for him/her.



Sec. 11.304  Summons in lieu of warrant.

    (a) When otherwise authorized to arrest a suspect, a law enforcement 
officer or a magistrate may, in lieu of a warrant, issue a summons 
commanding the accused to appear before the Court of Indian Offenses at 
a stated time and place and answer to the charge.
    (b) The summons shall contain the same information as a warrant, 
except that it may be signed by a police officer.
    (c) The summons shall state that if a defendant fails to appear in 
response to a summons, a warrant for his or her arrest shall be issued.
    (d) The summons, together with a copy of the complaint, shall be 
served upon the defendant by delivering a copy to the defendant 
personally or by leaving a copy at his or her usual residence or place 
of business with any person 18 years of age or older who also resides or 
works there. Service shall be made by an authorized law enforcement 
officer, who shall file with the

[[Page 26]]

record of the case a form indicating when the summons was served.



Sec. 11.305  Search warrants.

    (a) Each magistrate of a Court of Indian Offenses shall have the 
authority to issue a warrant for the search of premises and for the 
seizure of physical evidence of a criminal violation under the 
regulations of this part located within the Indian country over which 
the court has jurisdiction.
    (b) No warrant for search or seizure may be issued unless it is 
based on a written and signed statement establishing, to the 
satisfaction of the magistrate, that probable cause exists to believe 
that the search will lead to discovery of evidence of a criminal 
violation under the regulations of this part.
    (c) No warrant for search or seizure shall be valid unless it 
contains the name or description of the person, vehicle, or premises to 
be searched, describes the evidence to be seized, and bears the 
signature of the magistrate who issued it.
    (d) Warrants may be executed only by a BIA or tribal police officer 
or other official commissioned to enforce the regulations under this 
part. The executing officer shall return the warrant to the Court of 
Indian Offenses within the time limit shown on the face of the warrant, 
which in no case shall be longer than ten (10) days from the date of 
issuance. Warrants not returned within such time limits shall be void.



Sec. 11.306  Search without a warrant.

    No law enforcement officer shall conduct any search without a valid 
warrant except:
    (a) Incident to making a lawful arrest; or
    (b) With the voluntary consent of the person being searched; or
    (c) When the search is of a moving vehicle and the officer has 
probable cause to believe that it contains contraband, stolen property, 
or property otherwise unlawfully possessed.



Sec. 11.307  Disposition of seized property.

    (a) The officer serving and executing a warrant shall make an 
inventory of all seized property, and a copy of such inventory shall be 
left with every person from whom property is seized.
    (b) A hearing shall be held by the Court of Indian Offenses to 
determine the disposition of all seized property. Upon satisfactory 
proof of ownership, the property shall be delivered immediately to the 
owner, unless such property is contraband or is to be used as evidence 
in a pending case. Property seized as evidence shall be returned to the 
owner after final judgment. Property confiscated as contraband shall be 
destroyed or otherwise lawfully disposed of as ordered by the Court of 
Indian Offenses.



Sec. 11.308  Commitments.

    No person may be detained, jailed or imprisoned under the 
regulations of this part for longer than 48 hours unless the Court of 
Indian Offenses issues a commitment bearing the signature of a 
magistrate. A temporary commitment shall be issued for each person held 
before trial. A final commitment shall be issued for each person 
sentenced to jail after trial.



Sec. 11.309  Arraignments.

    (a) Arraignment is the bringing of an accused before the court, 
informing him or her of his or her rights and of the charge(s) against 
him or her, receiving the plea, and setting conditions of pretrial 
release as appropriate in accordance with this part.
    (b) Arraignment shall be held in open court without unnecessary 
delay after the accused is taken into custody and in no instance shall 
arraignment be later than the next regular session of court.
    (c) Before an accused is required to plead to any criminal charges 
the magistrate shall:
    (1) Read the complaint to the accused and determine that he or she 
understands it and the section(s) of this part that he or she is charged 
with violating, including the maximum authorized penalty; and
    (2) Advise the accused that he or she has the right to remain 
silent, to be tried by a jury if the offense charged is punishable by 
imprisonment, to be represented by counsel (which shall be

[[Page 27]]

paid for by the government if the accused is indigent) and that the 
arraignment will be postponed should he or she desire to consult with 
counsel.
    (d) The magistrate shall call upon the defendant to plead to the 
charge:
    (1) If the accused pleads ``not guilty'' to the charge, the 
magistrate shall then inform the accused of the trial date and set 
conditions for release prior to trial.
    (2) If the accused pleads ``guilty'' to the charge, the magistrate 
shall accept the plea only if he or she is satisfied that the plea is 
made voluntarily and that the accused understands the consequences of 
the plea, including the rights waived by the plea. The magistrate may 
then impose sentence or defer sentencing for a reasonable time in order 
to obtain any information he or she deems necessary for the imposition 
of a just sentence. The accused shall be afforded an opportunity to be 
heard by the court prior to sentencing.
    (3) If the accused refuses to plead, the judge shall enter a plea of 
``not guilty'' on his or her behalf.
    (e) The court may, in its discretion, allow a defendant to withdraw 
a plea of guilty if it appears that the interest of justice would be 
served by doing so.



Sec. 11.310  Bail.

    (a) Each person charged with a criminal offense under this part 
shall be entitled to release from custody pending trial under whichever 
one or more of the following conditions is deemed necessary to 
reasonably assure the appearance of the person at any time lawfully 
required:
    (1) Release on personal recognizance upon execution by the accused 
of a written promise to appear at trial and all other lawfully required 
times;
    (2) Release to the custody of a designated person or organization 
agreeing to assure the accused's appearance;
    (3) Release with reasonable restrictions on the travel, association, 
or place of residence of the accused during the period of release;
    (4) Release after deposit of a bond or other sufficient collateral 
in an amount specified by the magistrate or a bail schedule;
    (5) Release after execution of a bail agreement by two responsible 
members of the community; or
    (6) Release upon any other condition deemed reasonably necessary to 
assure the appearance of the accused as required.
    (b) Any law enforcement officer authorized to do so by the court may 
admit an arrested person to bail pending trial pursuant to a bail 
schedule and conditions prepared by the court.
    (c) A convicted person may be released from custody pending appeal 
on such conditions as the magistrate determines will reasonably assure 
the appearance of the accused unless the magistrate determines that 
release of the accused is likely to pose a danger to the community, the 
accused, or any other person.
    (d) The Court of Indian Offenses may revoke its release of the 
defendant and order him or her committed at any time where it determines 
that the conditions of release will not reasonably assure the appearance 
of the defendant, or if any conditions of release have been violated.



Sec. 11.311  Subpoenas.

    (a) Upon request of any party, the court shall issue subpoenas to 
compel the testimony of witnesses, or the production of books, records, 
documents or any other physical evidence relevant to the determination 
of the case and not an undue burden on the person possessing the 
evidence. The clerk of the court may act on behalf of the court and 
issue subpoenas which have been signed either by the clerk of the court 
or by a magistrate of the Court of Indian Offenses and which are to be 
served within Indian country over which the Court of Indian Offenses has 
jurisdiction.
    (b) A subpoena shall bear the signature of the chief magistrate of 
the Court of Indian Offenses, and it shall state the name of the court, 
the name of the person or description of the physical evidence to be 
subpoenaed, the title of the proceeding, and the time and place where 
the witness is to appear or the evidence is to be produced.
    (c) A subpoena may be served at any place but any subpoena to be 
served

[[Page 28]]

outside of the Indian country over which the Court of Indian Offenses 
has jurisdiction shall be issued personally by a magistrate of the Court 
of Indian Offenses.
    (d) A subpoena may be served by any law enforcement officer or other 
person appointed by the court for such purpose. Service of a subpoena 
shall be made by delivering a copy of it to the person named or by 
leaving a copy at his or her place of residence or business with any 
person 18 years of age or older who also resides or works there.
    (e) Proof of service of the subpoena shall be filed with the clerk 
of the court by noting on the back of the subpoena the date, time and 
place that it was served and noting the name of the person to whom it 
was delivered. Proof of service shall be signed by the person who 
actually served the subpoena.
    (f) In the absence of a justification satisfactory to the court, a 
person who fails to obey a subpoena may be deemed to be in contempt of 
court and a bench warrant may be issued for his or her arrest.



Sec. 11.312  Witness fees.

    (a) Each fact witness answering a subpoena is entitled to a fee of 
not less than the hourly minimum wage scale established by 29 U.S.C. 
206(a)(1) and any of its subsequent revisions, plus actual cost of 
travel. Each fact witness testifying at a hearing shall receive pay for 
a full day (eight hours) plus travel allowance.
    (b) The Court of Indian Offenses may order any party calling a 
witness to testify without a subpoena to compensate the witness for 
actual traveling and living expenses incurred in testifying.
    (c) If the Court of Indian Offenses finds that a complaint was not 
filed in good faith but with a frivolous or malicious intent, it may 
order the complainant to reimburse the court for expenditures incurred 
under this section, and such order may constitute a judgment upon which 
execution may levy.



Sec. 11.313  Trial procedure.

    (a) The time and place of court sessions, and all other details of 
judicial procedure shall be set out in rules of court approved by the 
chief magistrate of the Court of Indian Offenses.
    (b) Courts of Indian Offenses shall be bound by the Federal Rules of 
Evidence, except insofar as such rules are superseded by order of the 
court or by the existence of inconsistent tribal rules of evidence.



Sec. 11.314  Jury trials.

    (a) In any criminal case punishable by a sentence of six months in 
jail and in any criminal case in which the prosecutor informs the court 
before the case comes to trial that a jail sentence will be sought, the 
defendant has a right, upon demand, to a jury trial. If the prosecutor 
informs the court that no prison sentence will be sought, the court may 
not impose a prison sentence for the offense.
    (b) A jury shall consist of eight Indian residents of the vicinity 
in which trial is held, selected from a list of eligible jurors prepared 
each year by the court. An eligible juror shall be at least 18 years of 
age, shall not have been convicted of a felony, and shall not otherwise 
be unqualified according to standards established by the Court of Indian 
Offenses under its general rulemaking authority. Any party may challenge 
without cause not more than three members of the jury panel so chosen.
    (c) The magistrate shall instruct the jury with regard to the 
applicable law and the jury shall decide all questions of fact on the 
basis of the law.
    (d) The jury shall deliberate in secret and return a verdict of 
guilty or not guilty. Six out of the eight jurors must concur to render 
a verdict.
    (e) Each juror who serves on a jury is entitled to a fee not less 
than the hourly minimum wage scale established by 29 U.S.C. 206(a)(1), 
and any of its subsequent revisions, plus mileage not to exceed the 
maximum rate per mile established by the Federal Government of jurors 
and witnesses. Each juror shall receive pay for a full day (eight hours) 
for any portion of a day served, plus travel allowance.



Sec. 11.315  Sentencing.

    (a) Any person who has been convicted in a Court of Indian Offenses 
of

[[Page 29]]

a criminal offense under the regulations of this part may be sentenced 
to one or a combination of the following penalties:
    (1) Imprisonment for a period not to exceed the maximum permitted by 
the section defining the offense, which in no case shall be greater than 
six months.
    (2) A money fine in an amount not to exceed the maximum permitted by 
the section defining the offense, which in no case shall be greater than 
five hundred dollars ($500).
    (3) Labor for the benefit of the tribe.
    (4) Rehabilitative measures.
    (b) In addition to or in lieu of the penalties provided in paragraph 
(a) of this section, the court may require a convicted offender who has 
inflicted injury upon the person or property of another to make 
restitution or compensate the injured person by means of the surrender 
of property, payment of money damages, or the performance of any other 
act for the benefit of the injured party.
    (c) If, solely because of indigence, a convicted offender is unable 
to pay forthwith a money fine assessed under any applicable section, the 
court shall allow him or her a reasonable period of time to pay the 
entire sum or allow him or her to make reasonable installment payments 
to the clerk of the court at specified intervals until the entire sum is 
paid. If the offender defaults on such payments the court may find him 
or her in contempt of court and imprison him or her accordingly.



Sec. 11.316  Probation.

    (a) Where a sentence of imprisonment has been imposed on a convicted 
offender, the Court of Indian Offenses may, in its discretion, suspend 
the serving of such sentence and release the person on probation under 
any reasonable conditions deemed appropriate by the court, provided that 
the period of probation shall not exceed one year.
    (b) Any person who violates the terms of his or her probation may be 
required by the court to serve the sentence originally imposed or such 
part of it as the court may determine to be suitable giving 
consideration to all the circumstances, provided that such revocation of 
probation shall not be ordered without a hearing before the court at 
which the offender shall have the opportunity to explain his or her 
actions.



Sec. 11.317  Parole.

    (a) Any person sentenced by the court of detention or labor shall be 
eligible for parole at such time and under such reasonable conditions as 
set by the Court of Indian Offenses.
    (b) Any person who violates the conditions of his or her parole may 
be required by the court to serve the whole original sentence, provided 
that such revocation or parole shall not be ordered without a hearing 
before the court at which the offender shall have the opportunity to 
explain his or her actions.



Sec. 11.318  Extradition.

    Any Court of Indian Offenses may order delivery to the proper state, 
tribal or BIA law enforcement authorities of any person found within the 
jurisdiction of the court, who is charged with an offense in another 
jurisdiction. Prior to delivery to the proper officials, the accused 
shall be accorded a right to contest the propriety of the court's order 
in a hearing before the court.



                       Subpart D_Criminal Offenses



Sec. 11.400  Assault.

    (a) A person is guilty of assault if he or she:
    (1) Attempts to cause or purposely, knowingly or recklessly causes 
bodily injury to another; or
    (2) Negligently causes bodily injury to another with a deadly 
weapon; or
    (3) Attempts by physical menace to put another in fear of imminent 
serious bodily injury.
    (b) Assault is a misdemeanor unless committed in a fight or scuffle 
entered into by mutual consent, in which case it is a petty misdemeanor.



Sec. 11.401  Recklessly endangering another person.

    A person commits a misdemeanor if he or she recklessly engages in 
conduct which places or may place another person in danger of death or 
serious bodily injury. Recklessness and danger shall

[[Page 30]]

be presumed where a person knowingly points a firearm at or in the 
direction of another person, whether or not the actor believed the 
firearm to be loaded.

[58 FR 54411, Oct. 21, 1993; 58 FR 58729, Nov. 3, 1993]



Sec. 11.402  Terroristic threats.

    A person is guilty of a misdemeanor if he or she threatens to commit 
any crime of violence with purpose to terrorize another or to cause 
evacuation of a building, place of assembly or facility of public 
transportation, or otherwise to cause serious public inconvenience or in 
reckless disregard of the risk of causing such terror or inconvenience.



Sec. 11.403  Unlawful restraint.

    A person commits a misdemeanor if he or she knowingly:
    (a) Restrains another unlawfully in circumstances exposing him or 
her to risk of serious bodily injury; or
    (b) Holds another in a condition of involuntary servitude.



Sec. 11.404  False imprisonment.

    A person commits a misdemeanor if he or she knowingly restrains 
another unlawfully so as to interfere substantially with his or her 
liberty.



Sec. 11.405  Interference with custody.

    (a) Custody of children. A person commits a misdemeanor if he or she 
knowingly or recklessly takes or entices any child under the age of 18 
from the custody of his or her parent, guardian or other lawful 
custodian, when he or she has no privilege to do so.
    (b) Custody of committed person. A person is guilty of a misdemeanor 
if he or she knowingly or recklessly takes or entices any committed 
person away from lawful custody when he or she does not have the 
privilege to do so. Committed person means, in addition to anyone 
committed under judicial warrant, any orphan, neglected or delinquent 
child, mentally defective or insane person, or other dependent or 
incompetent person entrusted to another's custody by or through a 
recognized social agency or otherwise by authority of law.



Sec. 11.406  Criminal coercion.

    (a) A person is guilty of criminal coercion if, with purpose to 
unlawfully restrict another's freedom of action to his or her detriment, 
he or she threatens to:
    (1) Commit any criminal offense; or
    (2) Accuse anyone of a criminal offense; or
    (3) Take or withhold action as an official, or cause an official to 
take or withhold action.
    (b) Criminal coercion is classified as a misdemeanor.



Sec. 11.407  Sexual assault.

    (a) A person who has sexual contact with another person not his or 
her spouse, or causes such other person to have sexual contact with him 
or her, is guilty of sexual assault as a misdemeanor, if:
    (1) He or she knows that the conduct is offensive to the other 
person; or
    (2) He or she knows that the other person suffers from a mental 
disease or defect which renders him or her incapable of appraising the 
nature or his or her conduct; or
    (3) He or she knows that the other person is unaware that a sexual 
act is being committed; or
    (4) The other person is less than 10 years old; or
    (5) He or she has substantially impaired the other person's power to 
appraise or control his or her conduct, by administering or employing 
without the other's knowledge drugs, intoxicants or other means for the 
purpose of preventing resistance; or
    (6) The other person is less than 16 years old and the actor is at 
least four years older than the other person; or
    (7) The other person is less than 21 years old and the actor is his 
or her guardian or otherwise responsible for general supervision of his 
or her welfare; or
    (8) The other person is in custody of law or detained in a hospital 
or other institution and the actor has supervisory or disciplinary 
authority over him or her.
    (b) Sexual contact is any touching of the sexual or other intimate 
parts of the person for the purpose of arousing or gratifying sexual 
desire, or for the

[[Page 31]]

purpose of abusing, humiliating, harassing, or degrading the victim.



Sec. 11.408  Indecent exposure.

    A person commits a misdemeanor if he or she exposes his or her 
genitals under circumstances in which he or she knows his or her conduct 
is likely to cause affront or alarm.



Sec. 11.409  Reckless burning or exploding.

    A person commits a misdemeanor if he or she purposely starts a fire 
or causes an explosion, whether on his or her property or another's, and 
thereby recklessly:
    (a) Places another person in danger of death or bodily injury; or
    (b) Places a building or occupied structure of another in danger of 
damage or destruction.



Sec. 11.410  Criminal mischief.

    (a) A person is guilty of criminal mischief if he or she:
    (1) Damages tangible property of another purposely, recklessly, or 
by negligence in the employment of fire, explosives, or other dangerous 
means; or
    (2) Purposely or recklessly tampers with tangible property of 
another so as to endanger person or property; or
    (3) Purposely or recklessly causes another to suffer pecuniary loss 
by deception or threat.
    (b) Criminal mischief is a misdemeanor if the actor purposely causes 
pecuniary loss in excess of $100, or a petty misdemeanor if he or she 
purposely or recklessly causes pecuniary loss in excess of $25. 
Otherwise, criminal mischief is a violation.



Sec. 11.411  Criminal trespass.

    (a) A person commits an offense if, knowing that he or she is not 
licensed or privileged to do so, he or she enters or surreptitiously 
remains in any building or occupied structure. An offense under this 
subsection is a misdemeanor if it is committed in a dwelling at night. 
Otherwise it is a petty misdemeanor.
    (b) A person commits an offense if, knowing that he or she is not 
licensed or privileged to do so, he or she enters or remains in any 
place as to which notice against trespass is given by:
    (1) Actual communication to the actor; or
    (2) Posting in a manner prescribed by law or reasonably likely to 
come to the attention of intruders; or
    (3) Fencing or other enclosure manifestly designed to exclude 
intruders.
    (c) An offense under this section constitutes a petty misdemeanor if 
the offender defies an order to leave personally communicated to him or 
her by the owner of the premises or other authorized person. Otherwise 
it is a violation.



Sec. 11.412  Theft.

    A person who, without permission of the owner, shall take, shoplift, 
possess or exercise unlawful control over movable property not his or 
her own or under his or her control with the purpose to deprive the 
owner thereof or who unlawfully transfers immovable property of another 
or any interest therein with the purpose to benefit himself or herself 
or another not entitled thereto shall be guilty of theft, a misdemeanor.



Sec. 11.413  Receiving stolen property.

    A person is guilty of receiving stolen property, a misdemeanor, if 
he or she purposely receives, retains, or disposes of movable property 
of another knowing that it has been stolen, or believing that it has 
probably been stolen, unless the property is received, retained, or 
disposed with purpose to restore it to the owner. Receiving means 
acquiring possession, control or title, or lending on the security of 
the property.



Sec. 11.414  Embezzlement.

    A person who shall, having lawful custody of property not his or her 
own, appropriate the same to his or her own use, with intent to deprive 
the owner thereof, shall be guilty of embezzlement, a misdemeanor.



Sec. 11.415  Fraud.

    A person who shall by willful misrepresentation or deceit, or by 
false interpreting, or by the use of false weights or measures obtain 
any money or other property, shall be guilty of fraud, a misdemeanor.

[[Page 32]]



Sec. 11.416  Forgery.

    (a) A person is guilty of forgery, a misdemeanor, if, with purpose 
to defraud or injure anyone, or with knowledge that he or she is 
facilitating fraud or injury to be perpetrated by anyone, he or she:
    (1) Alters, makes, completes, authenticates, issues or transfers any 
writing of another without his or her authority; or
    (2) Utters any writing which he or she knows to be forged in a 
manner above specified.
    (b) ``Writing'' includes printing or any other method of recording 
information, money, coins, tokens, stamps, seals, credit cards, badges, 
trademarks, and other symbols of value, right, privilege, or 
identification.



Sec. 11.417  Extortion.

    A person who shall willfully, by making false charges against 
another person or by any other means whatsoever, extort or attempt to 
extort any moneys, goods, property, or anything else of any value, shall 
be guilty of extortion, a misdemeanor.



Sec. 11.418  Misbranding.

    A person who shall knowingly and willfully misbrand or alter any 
brand or mark on any livestock of another person, shall be guilty of a 
misdemeanor.



Sec. 11.419  Unauthorized use of automobiles and other vehicles.

    A person commits a misdemeanor if he or she operates another 
person's automobile, airplane, motorcycle, motorboat, or other motor-
propelled vehicle without consent of the owner. It is an affirmative 
defense to prosecution under this section that the actor reasonably 
believed that the owner would have consented to the operation had he or 
she known of it.



Sec. 11.420  Tampering with records.

    A person commits a misdemeanor if, knowing that he or she has no 
privilege to do so, he or she falsifies, destroys, removes or conceals 
any writing or record, with purpose to deceive or injure anyone or to 
conceal any wrongdoing.



Sec. 11.421  Bad checks.

    (a) A person who issues or passes a check or similar sight order for 
the payment of money, knowing that it will not be honored by the drawee, 
commits a misdemeanor.
    (b) For the purposes of this section, an issuer is presumed to know 
that the check or order would not be paid, if:
    (1) The issuer had no account with the drawee at the time the check 
or order was issued; or
    (2) Payment was refused by the drawee for lack of funds, upon 
presentation within 30 days after issue, and the issuer failed to make 
good within 10 days after receiving notice of that refusal.



Sec. 11.422  Unauthorized use of credit cards.

    (a) A person commits a misdemeanor if he or she uses a credit card 
for the purpose of obtaining property or services with knowledge that:
    (1) The card is stolen or forged; or
    (2) The card has been revoked or cancelled; or
    (3) For any other reason his or her use of the card is unauthorized 
by the issuer.
    (b) Credit card means a writing or other evidence of an undertaking 
to pay for property or services delivered or rendered to or upon the 
order of a designated person or bearer.



Sec. 11.423  Defrauding secured creditors.

    A person commits a misdemeanor if he or she destroys, conceals, 
encumbers, transfers or otherwise deals with property subject to a 
security interest with purpose to hinder that interest.



Sec. 11.424  Neglect of children.

    (a) A parent, guardian, or other person supervising the welfare of a 
child under 18 commits a misdemeanor if he or she knowingly endangers 
the child's welfare by violating a duty of care, protection or support.
    (b) A parent, guardian, or other person supervising the welfare of a 
child under 18 commits a violation if he or she neglects or refuses to 
send the child to school.

[[Page 33]]



Sec. 11.425  Persistent non-support.

    A person commits a misdemeanor if he or she persistently fails to 
provide support which he or she can provide and which he or she knows he 
or she is legally obliged to provide to a spouse, child or other 
dependent.



Sec. 11.426  Bribery.

    (a) A person is guilty of bribery, a misdemeanor, if he or she 
offers, confers or agrees to confer upon another, or solicits, accepts 
or agrees to accept from another:
    (1) Any pecuniary benefit as consideration for the recipient's 
decision, opinion, recommendation, vote or other exercise of discretion 
as a public servant, party official or voter; or
    (2) Any benefit as consideration for the recipient's decision, vote, 
recommendation or other exercise of official discretion in a judicial or 
administrative proceeding; or
    (3) Any benefit as consideration for a violation of a known legal 
duty as a public servant or party official.
    (b) It is no defense to prosecution under this section that a person 
whom the actor sought to influence was not qualified to act in the 
desired way, whether because he or she had not yet assumed office, or 
lacked jurisdiction, or for any other reason.



Sec. 11.427  Threats and other improper influence in official and 

political matters.

    (a) A person commits a misdemeanor if he or she:
    (1) Threatens unlawful harm to any person with purpose to influence 
his or her decision, vote or other exercise of discretion as a public 
servant, party official or voter; or
    (2) Threatens harm to any public servant with purpose to influence 
his decision, opinion, recommendation, vote or other exercise of 
discretion in a judicial or administrative proceeding; or
    (3) Threatens harm to any public servant with purpose to influence 
his decision, opinion, recommendation, vote or other exercise of 
discretion in a judicial or administrative proceeding; or
    (b) It is no defense to prosecution under this section that a person 
whom the actor sought to influence was not qualified to act in the 
desired way, whether because he or she had not yet assumed office, or 
lacked jurisdiction, or for any other reason.



Sec. 11.428  Retaliation for past official action.

    A person commits a misdemeanor if he or she harms another by any 
unlawful act in retaliation for anything lawfully done by the latter in 
the capacity of public servant.



Sec. 11.429  Perjury.

    A person is guilty of perjury, a misdemeanor, if in any official 
proceeding he or she makes a false statement under oath or equivalent 
affirmation, or swears or affirms the truth of a statement previously 
made, when the statement is material and he or she does not believe it 
to be true.
    (a) No person shall be guilty of an offense under this section if he 
or she retracted the falsification in the course of the proceeding in 
which it was made before it became manifest that the falsification was 
or would be exposed and before the falsification substantially affected 
the proceeding.
    (b) No person shall be convicted of an offense under this section 
where proof of falsity rests solely upon contradiction by testimony of a 
single person other than the defendant.



Sec. 11.430  False alarms.

    A person who knowingly causes a false alarm of fire or other 
emergency to be transmitted to, or within any organization, official or 
volunteer, for dealing with emergencies involving danger to life or 
property commits a misdemeanor.



Sec. 11.431  False reports.

    (a) A person who knowingly gives false information to any law 
enforcement officer with the purpose to implicate another commits a 
misdemeanor.
    (b) A person commits a petty misdemeanor if he or she:
    (1) Reports to law enforcement authorities an offense or other 
incident within their concern knowing that it did not occur; or

[[Page 34]]

    (2) Pretends to furnish such authorities with information relating 
to an offense or incident when he or she knows he or she has no 
information relating to such offense or incident.



Sec. 11.432  Impersonating a public servant.

    A person commits a misdemeanor if he or she falsely pretends to hold 
a position in the public service with purpose to induce another to 
submit to such pretended official authority or otherwise to act in 
reliance upon that pretense to his or her prejudice.



Sec. 11.433  Disobedience to lawful order of court.

    A person who willfully disobeys any order, subpoena, summons, 
warrant or command duly issued, made or given by any Court of Indian 
Offenses or any officer thereof is guilty of a misdemeanor.



Sec. 11.434  Resisting arrest.

    A person commits a misdemeanor if, for the purpose of preventing a 
public servant from effecting a lawful arrest or discharging any other 
duty, he or she creates a substantial risk of bodily injury to the 
public servant or anyone else, or employs means justifying or requiring 
substantial force to overcome the resistance.



Sec. 11.435  Obstructing justice.

    A person commits a misdemeanor if, with purpose to hinder the 
apprehension, prosecution, conviction or punishment of another for a 
crime, he or she harbors or conceals the other, provides a weapon, 
transportation, disguise or other means of escape, warns the other of 
impending discovery, or volunteers false information to a law 
enforcement officer.



Sec. 11.436  Escape.

    A person is guilty of the offense of escape, a misdemeanor, if he or 
she unlawfully removes himself or herself from official detention or 
fails to return to official detention following temporary leave granted 
for a specific purpose or limited period.



Sec. 11.437  Bail jumping.

    A person set at liberty by court order, with or without bail, upon 
condition that he or she will subsequently appear at a specified time or 
place, commits a misdemeanor if, without lawful excuse, he or she fails 
to appear at that time and place.



Sec. 11.438  Flight to avoid prosecution or judicial process.

    A person who shall absent himself or herself from the Indian country 
over which the Court of Indian Offenses exercises jurisdiction for the 
purpose of avoiding arrest, prosecution or other judicial process shall 
be guilty of a misdemeanor.



Sec. 11.439  Witness tampering.

    (a) A person commits a misdemeanor if, believing that an official 
proceeding or investigation is pending or about to be instituted, he or 
she attempts to induce or otherwise cause a witness or informant to:
    (1) Testify or inform falsely; or
    (2) Withhold any testimony, information, document or thing; or
    (3) Elude legal process summoning him or her to supply evidence; or
    (4) Absent himself or herself from any proceeding or investigation 
to which he or she has been legally summoned.
    (b) A person commits a misdemeanor if he or she harms another by any 
unlawful act in retaliation for anything lawfully done in the capacity 
of witness or informant.



Sec. 11.440  Tampering with or fabricating physical evidence.

    A person commits a misdemeanor if, believing that an official 
proceeding or investigation is pending or about to be instituted, he or 
she:
    (a) Alters, destroys, conceals, or removes any record, document or 
thing with purpose to impair its verity or availability in such 
proceeding or investigation; or
    (b) Makes, presents or uses any record, document or thing knowing it 
to be false and with the purpose to mislead a public servant who is or 
may be engaged in such proceeding or investigation.

[[Page 35]]



Sec. 11.441  Disorderly conduct.

    (a) A person is guilty of disorderly conduct if, with purpose to 
cause public inconvenience, annoyance or alarm or recklessly creating a 
risk thereof, he or she:
    (1) Engages in fighting or threatening, or in violent or tumultuous 
behavior;
    (2) Makes unreasonable noise or offensively coarse utterance, 
gesture or display, or addresses abusive language to any person present; 
or
    (3) Creates a hazardous or physically offensive condition by any act 
which serves no legitimate purpose of the actor.
    (b) Public means affecting or likely to affect persons in a place to 
which the public has access; among the places included are highways, 
schools, prisons, apartments, places of business or amusement, or any 
neighborhood.
    (c) An offense under this section is a petty misdemeanor if the 
actor's purpose is to cause substantial harm or serious inconvenience, 
or if he or she persists in disorderly conduct after reasonable warning 
or request to desist. Otherwise, disorderly conduct is a violation.



Sec. 11.442  Riot; failure to disperse.

    (a) A person is guilty of riot, a misdemeanor, if he or she 
participates with two or more others in a course of disorderly conduct:
    (1) With purpose to commit or facilitate the commission of a felony 
or misdemeanor; or
    (2) With purpose to prevent or coerce official action; or
    (3) When the actor or any other participant to the knowledge of the 
actor uses or plans to use a firearm or other deadly weapon.
    (b) Where three or more persons are participating in a course of 
disorderly conduct likely to cause substantial harm or serious 
inconvenience, a law enforcement officer may order the participants and 
others in the immediate vicinity to disperse. A person who refuses or 
knowingly fails to obey such an order commits a misdemeanor.



Sec. 11.443  Harassment.

    A person commits a petty misdemeanor if, with purpose to harass 
another, he or she:
    (a) Makes a telephone call without purpose or legitimate 
communication; or
    (b) Insults, taunts or challenges another in a manner likely to 
provoke violent or disorderly response; or
    (c) Makes repeated communications anonymously or at extremely 
inconvenient hours, or in offensively coarse language; or
    (d) Subjects another to an offensive touching; or
    (e) Engages in any other course of alarming conduct serving no 
legitimate purpose.



Sec. 11.444  Carrying concealed weapons.

    A person who goes about in public places armed with a dangerous 
weapon concealed upon his or her person is guilty of a misdemeanor 
unless he or she has a permit to do so signed by a magistrate of the 
Court of Indian Offenses.



Sec. 11.445  Driving violations.

    (a) A person who shall operate any vehicle in a manner dangerous to 
the public safety is guilty of reckless driving, a petty misdemeanor, 
unless it is committed while under the influence of alcohol, in which 
case it is a misdemeanor.
    (b) A person who shall drive, operate or be in physical control of 
any motor vehicle when his or her alcohol concentration is 0.10 or more 
shall be guilty of driving while intoxicated, a misdemeanor.
    (c) Any person who drives, operates, or is in physical control of a 
motor vehicle within the Indian country under the jurisdiction of a 
Court of Indian Offenses consents to a chemical test of his or her 
blood, breath, or urine for the purpose of determining the presence of 
alcohol, to be administered at the direction of a law enforcement 
officer. The test may be required when the officer has reasonable cause 
to believe that a person is driving while intoxicated, and the person 
has either been lawfully placed under arrest for a violation of this 
section, or has been involved in a motor vehicle accident or

[[Page 36]]

collision resulting in property damage, personal injury, or death.
    (d) In the absence of an applicable tribal traffic code, the 
provisions of state traffic laws applicable in the state where a Court 
of Indian Offenses is located shall apply to the operation of motor 
vehicles within the Indian country under the jurisdiction of the Court 
of Indian Offenses with the exception that any person found guilty of 
violating such laws shall, in lieu of the penalties provided under state 
law, be sentenced according to the standards found in Sec. 11.450 
depending on the nature of the traffic code violation, and may be 
deprived of the right to operate any motor vehicle for a period not to 
exceed 6 months.



Sec. 11.446  Cruelty to animals.

    A person commits a misdemeanor if he or she purposely or recklessly:
    (a) Subjects any animal in his or her custody to cruel neglect; or
    (b) Subjects any animal to cruel mistreatment; or
    (c) Kills or injures any animal belonging to another without legal 
privilege or consent of the owner.
    (d) Causes one animal to fight with another.



Sec. 11.447  Maintaining a public nuisance.

    A person who permits his or her property to fall into such condition 
as to injure or endanger the safety, health, comfort, or property of his 
or her neighbors, is guilty of a violation.



Sec. 11.448  Abuse of office.

    A person acting or purporting to act in an official capacity or 
taking advantage of such actual or purported capacity commits a 
misdemeanor if, knowing that his or her conduct is illegal, he or she:
    (a) Subjects another to arrest, detention, search, seizure, 
mistreatment, dispossession, assessment, lien or other infringement of 
personal or property rights; or
    (b) Denies or impedes another in the exercise or enjoyment of any 
right, privilege, power or immunity.



Sec. 11.449  Violation of an approved tribal ordinance.

    A person who violates the terms of any tribal ordinance duly enacted 
by the governing body of the tribe occupying the Indian country under 
the jurisdiction of the Court of Indian Offenses and approved by the 
Assistant Secretary--Indian Affairs or his or her designee, is guilty of 
an offense and upon conviction thereof shall be sentenced as provided in 
the ordinance.



Sec. 11.450  Maximum fines and sentences of imprisonment.

    (a) A person convicted of an offense under this code may be 
sentenced as follows:
    (1) If the offense is a misdemeanor, to a term of imprisonment not 
to exceed six months or to a fine not to exceed $500.00, or both;
    (2) If the offense is a petty misdemeanor, to a term of imprisonment 
not to exceed three months or to a fine not to exceed $250.00, or both;
    (3) If the offense is a violation, to a term of imprisonment not to 
exceed one month or to a fine not to exceed $100.00, or both;
    (b) The fines listed above may be imposed in addition to any amounts 
ordered paid as restitution.



                         Subpart E_Civil Actions



Sec. 11.500  Law applicable to civil actions.

    (a) In all civil cases the Court of Indian Offenses shall apply any 
laws of the United States that may be applicable, any authorized 
regulations of the Interior Department, and any ordinances or customs of 
the tribe occupying the area of Indian country over which the court has 
jurisdiction, not prohibited by Federal laws.
    (b) Where any doubt arises as to the customs and usages of the tribe 
the court may request the advice of counselors familiar with these 
customs and usages.
    (c) Any matters that are not covered by the traditional customs and 
usages of the tribe, or by applicable Federal laws and regulations, 
shall be decided by the Court of Indian Offenses according to the law of 
the State in which the matter in dispute lies.

[[Page 37]]



Sec. 11.501  Judgments in civil actions.

    (a) In all civil cases, judgment shall consist of an order of the 
court awarding damages to be paid to the injured party, or directing the 
surrender of certain property to the injured party, or the performance 
of some other act for the benefit of the injured party, including 
injunctive relief and declaratory judgments.
    (b) Where the injury inflicted was the result of carelessness of the 
defendant, the judgment shall fairly compensate the injured party for 
the loss he or she has suffered.
    (c) Where the injury was deliberately inflicted, the judgment shall 
impose an additional penalty upon the defendant, which additional 
penalty may run either in favor of the injured party or in favor of the 
tribe.
    (d) Where the injury was inflicted as a result of accident, or where 
both the complainant and the defendant were at fault, the judgment shall 
compensate the injured party for a reasonable part of the loss he or she 
has suffered.
    (e) No judgment shall be given on any suit unless the defendant has 
actually received notice of such suit and ample opportunity to appear in 
court in his or her defense.



Sec. 11.502  Costs in civil actions.

    (a) The court may assess the accruing costs of the case against the 
party or parties against whom judgment is given. Such costs shall 
consist of the expenses of voluntary witnesses for which either party 
may be responsible and the fees of jurors in those cases where a jury 
trial is had, and any further incidental expenses connected with the 
procedure before the court as the court may direct.
    (b) In all civil suits the complainant may be required to deposit 
with the clerk of the court a fee or other security in a reasonable 
amount to cover costs and disbursements in the case.



Sec. 11.503  Applicable civil procedure.

    The procedure to be followed in civil cases shall be the Federal 
Rules of Civil Procedure applicable to United States district courts, 
except insofar as such procedures are superseded by order of the Court 
of Indian Offenses or by the existence of inconsistent tribal rules of 
procedure.



Sec. 11.504  Applicable rules of evidence.

    Courts of Indian Offenses shall be bound by the Federal Rules of 
Evidence, except insofar as such rules are superseded by order of the 
Court of Indian Offenses, or by the existence of inconsistent tribal 
rules of evidence.



                      Subpart F_Domestic Relations



Sec. 11.600  Marriages.

    (a) A magistrate of the Court of Indian Offenses shall have the 
authority to perform marriages.
    (b) A valid marriage shall be constituted by:
    (1) The issuance of a marriage license by the Court of Indian 
Offenses and by execution of a consent to marriage by both parties to 
the marriage and recorded with the clerk of the court; or
    (2) The recording of a tribal custom marriage with the Court of 
Indian Offenses within 30 days of the tribal custom marriage ceremony by 
the signing by both parties of a marriage register maintained by the 
clerk of the court.
    (c) A marriage license application shall include the following 
information:
    (1) Name, sex, occupation, address, social security number, and date 
and place of birth of each party to the proposed marriage;
    (2) If either party was previously married, his or her name, and the 
date, place, and court in which the marriage was dissolved or declared 
invalid or the date and place of death of the former spouse;
    (3) Name and address of the parents or guardian of each party;
    (4) Whether the parties are related to each other and, if so, their 
relationship; and
    (5) The name and date of birth of any child of which both parties 
are parents, born before the making of the application, unless their 
parental rights and the parent and child relationship with respect to 
the child have been terminated.
    (6) A certificate of the results of any medical examination required 
by either applicable tribal ordinances, or

[[Page 38]]

the laws of the State in which the Indian country under the jurisdiction 
of the Court of Indian Offenses is located.



Sec. 11.601  Marriage licenses.

    A marriage license shall be issued by the clerk of the court in the 
absence of any showing that the proposed marriage would be invalid under 
any provision of this part or tribal custom, and upon written 
application of an unmarried male and unmarried female, both of whom must 
be eighteen (18) years or older. If either party to the marriage is 
under the age of eighteen (18), that party must have the written consent 
of parent or his or her legal guardian.



Sec. 11.602  Solemnization.

    (a) In the event a judge, clergyman, tribal official or anyone 
authorized to do so solemnizes a marriage, he or she shall file with the 
clerk of the court certification thereof within thirty (30) days of the 
solemnization.
    (b) Upon receipt of the marriage certificate, the clerk of the court 
shall register the marriage.



Sec. 11.603  Invalid or prohibited marriages.

    (a) The following marriages are prohibited:
    (1) A marriage entered into prior to the dissolution of an earlier 
marriage of one of the parties;
    (2) A marriage between an ancestor and a descendant, or between a 
brother and a sister, whether the relationship is by the half or the 
whole blood;
    (3) A marriage between an aunt and a nephew or between an uncle and 
a niece, whether the relationship is by the half or the whole blood, 
except as to marriages permitted by established tribal custom;
    (4) A marriage prohibited by custom and usage of the tribe.
    (b) Children born of a prohibited marriage are legitimate.



Sec. 11.604  Declaration of invalidity.

    (a) The Court of Indian Offenses shall enter a decree declaring the 
invalidity of a marriage entered into under the following circumstances:
    (1) A party lacked capacity to consent to the marriage, either 
because of mental incapacity or infirmity or by the influence of 
alcohol, drugs, or other incapacitating substances; or
    (2) A party was induced to enter into a marriage by fraud or duress; 
or
    (3) A party lacks the physical capacity to consummate the marriage 
by sexual intercourse and at the time the marriage was entered into, the 
other party did not know of the incapacity; or
    (4) The marriage is prohibited under Sec. 11.603.
    (b) A declaration of invalidity may be sought by either party to the 
marriage or by the legal representative of the party who lacked capacity 
to consent.



Sec. 11.605  Dissolution.

    (a) The Court of Indian Offenses shall enter a decree of dissolution 
of marriage if:
    (1) The court finds that the marriage is irretrievably broken, if 
the finding is supported by evidence that (i) the parties have lived 
separate and apart for a period of more than 180 days next preceding the 
commencement of the proceeding, or (ii) there is serious marital discord 
adversely affecting the attitude of one or both of the parties towards 
the marriage;
    (2) The court finds that either party, at the time the action was 
commenced, was domiciled within the Indian country under the 
jurisdiction of the court, and that the domicile has been maintained for 
90 days next preceding the making of the findings; and
    (3) To the extent it has jurisdiction to do so, the court has 
considered, approved, or provided for child custody, the support of any 
child entitled to support, the maintenance of either spouse, and the 
disposition of property; or has provided for a separate later hearing to 
complete these matters.
    (b) If a party requests a decree of legal separation rather than a 
decree of dissolution of marriage, the Court of Indian Offenses shall 
grant the decree in that form unless the other party objects.



Sec. 11.606  Dissolution proceedings.

    (a) Either or both parties to the marriage may initiate dissolution 
proceedings.

[[Page 39]]

    (b) If a proceeding is commenced by one of the parties, the other 
party shall be served in the manner provided by the applicable rule of 
civil procedure and within thirty days after the date of service may 
file a verified response.
    (c) The verified petition in a proceeding for dissolution of 
marriage or legal separation shall allege that the marriage is 
irretrievably broken and shall set forth:
    (1) The age, occupation, and length of residence within the Indian 
country under the jurisdiction of the court of each party;
    (2) The date of the marriage and the place at which it was 
registered;
    (3) That jurisdictional requirements are met and that the marriage 
is irretrievably broken in that either (i) the parties have lived 
separate and apart for a period of more than 180 days next preceding the 
commencement of the proceeding or (ii) there is a serious marital 
discord adversely affecting the attitude of one or both of the parties 
toward the marriage, and there is no reasonable prospect of 
reconciliation;
    (4) The names, age, and addresses of all living children of the 
marriage and whether the wife is pregnant;
    (5) Any arrangement as to support, custody, and visitation of the 
children and maintenance of a spouse; and
    (6) The relief sought.



Sec. 11.607  Temporary orders and temporary injunctions.

    (a) In a proceeding for dissolution of marriage or for legal 
separation, either party may move for temporary maintenance or temporary 
support of a child of the marriage entitled to support. The motion shall 
be accompanied by an affidavit setting forth the factual basis for the 
motion and the amounts requested.
    (b) As a part of a motion for temporary maintenance or support or by 
an independent motion accompanied by an affidavit, either party may 
request the Court of Indian Offenses to issue a temporary injunction for 
any of the following relief:
    (1) Restraining any person from transferring, encumbering, 
concealing, or otherwise disposing of any property except in the usual 
course of business or for the necessities of life, and, if so 
restrained, requiring him or her to notify the moving party of any 
proposed extraordinary expenditures made after the order is issued;
    (2) Enjoining a party from molesting or disturbing the peace of the 
other party or of any child;
    (3) Excluding a party from the family home or from the home of the 
other party upon a showing that physical or emotional harm would 
otherwise result;
    (4) Enjoining a party from removing a child from the jurisdiction of 
the court; and
    (5) Providing other injunctive relief proper in the circumstances.
    (c) The court may issue a temporary restraining order without 
requiring notice to the other party only if it finds on the basis of the 
moving affidavit or other evidence that irreparable injury will result 
to the moving party if no order is issued until the time for responding 
has elapsed.
    (d) A response may be filed within 20 days after service of notice 
of a motion or at the time specified in the temporary restraining order.
    (e) On the basis of the showing made, the Court of Indian Offenses 
may issue a temporary injunction and an order for temporary maintenance 
or support in amounts and on terms just and proper under the 
circumstances.
    (f) A temporary order or temporary injunction:
    (1) Does not prejudice the rights of the parties or the child which 
are to be adjudicated at subsequent hearings in a proceeding;
    (2) May be revoked or modified before the final decree as deemed 
necessary by the court;
    (3) Terminates when the final decree is entered or when the petition 
for dissolution or legal separation is voluntarily dismissed.



Sec. 11.608  Final decree; disposition of property; maintenance; 

child support; custody.

    (a) A decree of dissolution of marriage or of legal separation is 
final when entered, subject to the right of appeal.
    (b) The Court of Indian Offenses shall have the power to impose 
judgment as

[[Page 40]]

follows in dissolution or separation proceedings:
    (1) Apportion or assign between the parties the non-trust property 
and non-trust assets belonging to either or both and whenever acquired, 
and whether the title thereto is in the name of the husband or wife or 
both;
    (2) Grant a maintenance order for either spouse in amounts and for 
periods of time the court deems just;
    (3) Order either or both parents owing a duty of support to a child 
to pay an amount reasonable or necessary for his or her support, without 
regard to marital misconduct, after considering all relevant factors. In 
addition:
    (i) When a support order is issued by a Court of Indian Offenses, 
the order may provide that a portion of an absent parent's wages be 
withheld to comply with the order on the earliest of the following 
dates: When an amount equal to one month's support becomes overdue; when 
the absent parent requests withholding; or at such time as the Court of 
Indian Offenses selects. The amount to be withheld may include an amount 
to be applied toward liquidation of any overdue support.
    (ii) If the Court of Indian Offenses finds that an absent parent who 
has been ordered to pay child support is now residing within the 
jurisdiction of another Court of Indian Offenses, an Indian tribal 
court, or a state court, it shall petition such court for reciprocal 
enforcement and provide it with a copy of the support order.
    (iii) If the Court of Indian Offenses receives a petition from 
another Court of Indian Offenses, an Indian tribal court or a state 
court, it shall take necessary steps to determine paternity, establish 
an order for child support, register a foreign child support order or 
enforce orders as requested in the petition.
    (iv) The Court of Indian Offenses shall assist a state in the 
enforcement and collection of past-due support from Federal tax refunds 
of absent parents living within the Indian country over which the court 
has jurisdiction.
    (v) Any person or agency who has provided support or assistance to a 
child under 18 years of age shall be a proper person to bring an action 
under this section and to recover judgment in an amount equal to such 
past-paid support or assistance, including costs of bringing the action.
    (4) Make child custody determinations in accordance with the best 
interest of the child.
    (5) Restore the maiden name of the wife.



Sec. 11.609  Determination of paternity and support.

    The Court of Indian Offenses shall have jurisdiction of all suits 
brought to determine the paternity of a child and to obtain a judgment 
for the support of the child. A judgment of the court establishing the 
identity of the father of the child shall be conclusive of that fact in 
all subsequent determinations of inheritance by the Court of Indian 
Offenses or by the Department of the Interior.



Sec. 11.610  Appointment of guardians.

    The court shall have the jurisdiction to appoint or remove legal 
guardians for minors and for persons who are incapable of managing their 
own affairs under terms and conditions to be prescribed by the court.



Sec. 11.611  Change of name.

    The Court of Indian Offenses shall have the authority to change the 
name of any person upon petition of such person or upon the petition of 
the parents of any minor, if at least one parent is Indian. Any order 
issued by the court for a change of name shall be kept as a permanent 
record and copies shall be filed with the agency superintendent, the 
governing body of the tribe occupying the Indian country under the 
jurisdiction of the court, and any appropriate agency of the State in 
which the court is located.



                      Subpart G_Probate Proceedings



Sec. 11.700  Probate jurisdiction.

    The Court of Indian Offenses shall have jurisdiction to administer 
in probate the estate of a deceased Indian who, at the time of his or 
her death, was domiciled or owned real or personal property situated 
within the Indian country under the jurisdiction of the court to the 
extent that such estate consists of property which does

[[Page 41]]

not come within the jurisdiction of the Secretary of the Interior.



Sec. 11.701  Duty to present will for probate.

    Any custodian of a will shall deliver the same to the Court of 
Indian Offenses within 30 days after receipt of information that the 
maker thereof is deceased. Any custodian who fails to do so shall be 
liable for damages sustained by any person injured thereby.



Sec. 11.702  Proving and admitting will.

    (a) Upon initiating the probate of an estate, the will of the 
decedent shall be filed with the court. Such will may be proven and 
admitted to probate by filing an affidavit of an attesting witness which 
identifies such will as being the will which the decedent executed and 
declared to be his or her last will. If the evidence of none of the 
attesting witnesses is available, the court may allow proof of the will 
by testimony that the signature of the testator is genuine.
    (b) At any time within 90 days after a will has been admitted to 
probate, any person having an interest in the decedent's estate may 
contest the validity of such will. In the event of such contest, a 
hearing shall be held to determine the validity of such will.
    (c) Upon considering all relevant information concerning the will, 
the Court of Indian Offenses shall enter an order affirming the 
admission of such will to probate, or rejecting such will and ordering 
that the probate of the decedent's estate proceed as if the decedent had 
died intestate.



Sec. 11.703  Petition and order to probate estate.

    (a) Any person having an interest in the administration of an estate 
which is subject to the jurisdiction of the court may file a written 
petition with the court requesting that such estate be administered in 
probate.
    (b) The Court of Indian Offenses shall enter an order directing that 
the estate be probated upon finding that the decedent was an Indian who, 
at the time of his or her death, was domiciled or owned real or personal 
property situated within the Indian country under the jurisdiction of 
the court other than trust or other restricted property, that the 
decedent left an estate subject to the jurisdiction of the court, and 
that it is necessary to probate such estate.



Sec. 11.704  Appointment and duties of executor or administrator.

    (a) Upon ordering the estate to be probated, the court shall appoint 
an administrator to administer the estate of the decedent. The person 
nominated by the decedent's will, if any, to be the executor of the 
estate shall be so appointed, provided such person is willing to serve 
in such capacity.
    (b) The executor or administrator appointed by the court shall have 
the following duties and powers during the administration of the estate 
and until discharged by the court:
    (1) To send by certified mail true copies of the order to probate 
the estate and the will of the decedent admitted to probate by such 
order, if any, to each heir, devisee and legatee of the decedent, at 
their last known address, to the governing body of the tribe or tribes 
occupying the Indian country over which the court has jurisdiction, and 
to the agency superintendent;
    (2) To preserve and protect the decedent's property within the 
estate and the heirs, so far as is possible;
    (3) To investigate promptly all claims against the decedent's estate 
and determine their validity;
    (4) To cause a written inventory of all the decedent's property 
within the estate to be prepared promptly with each article or item 
being separately set forth and cause such property to be exhibited to 
and appraised by an appraiser, and the inventory and appraisal thereof 
to be filed with the court;
    (5) To give promptly all persons entitled thereto such notice as is 
required under these proceedings;
    (6) To account for all property within the estate which may come 
into his or her possession or control, and to maintain accurate records 
of all income received and disbursements made during the course of the 
administration.



Sec. 11.705  Removal of executor or administrator.

    The Court of Indian Offenses may order the executor or administrator 
to

[[Page 42]]

show cause why he or she should not be discharged, and may discharge the 
executor or administrator for failure, neglect or improper performance 
of his or her duties.



Sec. 11.706  Appointment and duties of appraiser.

    (a) Upon ordering an estate to be probated, the court shall appoint 
a disinterested and competent person as an appraiser to appraise all of 
the decedent's real and personal property within the estate.
    (b) It shall be the duty of the appraiser to appraise separately the 
true cash value of each article or item of property within the estate, 
including debts due the decedent, and to indicate the appraised value of 
each such article or item of property set forth in the inventory of the 
estate and to certify such appraisal by subscribing his or her name to 
the inventory and appraisal.



Sec. 11.707  Claims against estate.

    (a) Creditors of the estate or those having a claim against the 
decedent shall file their claim with the clerk of the court or with the 
executor or administrator within 60 days from official notice of the 
appointment of the executor or administrator published locally in the 
press or posting of signs at the tribal and agency offices, giving 
appropriate notice for the filing of claims.
    (b) The executor or administrator shall examine all claims within 90 
days of his or her appointment and notify the claimant whether his or 
her claim is accepted or rejected. If the claimant is notified of 
rejection, he or she may request a hearing before the court by filing a 
petition requesting such hearing within 30 days following the notice of 
rejection.



Sec. 11.708  Sale of property.

    After filing the inventory and appraisal, the executor or 
administrator may petition the court for authority to sell personal 
property of the estate for purposes of paying the expenses of last 
illness and burial expenses, expenses of administration, claims, if any, 
against the estate, and for the purpose of distribution. If, in the 
court's judgment, such sale is in the best interest of the estate, the 
court shall order such sale and prescribe the terms upon which the 
property shall be sold.



Sec. 11.709  Final account.

    (a) When the affairs of an estate have been fully administered, the 
executor or administrator shall file a final account with the court, 
verified by his or her oath. Such final account shall affirmatively set 
forth:
    (1) That all claims against the estate have been paid, except as 
shown, and that the estate has adequate unexpended and unappropriated 
funds to fully pay such remaining claims;
    (2) The amount of money received and expended by him or her, from 
whom received and to whom paid, referring to the vouchers for each of 
such payments;
    (3) That there is nothing further to be done in the administration 
of the estate except as shown in the final account;
    (4) The remaining assets of the estate, including unexpended and 
unappropriated money, at the time of filing the final account;
    (5) The proposed determination of heirs and indicate the names, 
ages, addresses and relationship to the decedent of each distributee and 
the proposed distributive share and value thereof each heir, devisee or 
legatee is to receive; and
    (6) A petition that the court set a date for conducting a hearing to 
approve the final account, to determine the heirs, devisees and legatees 
of the decedent and the distributive share each distributee is to 
receive.



Sec. 11.710  Determination of the court.

    At the time set for hearing upon the final account, the Court of 
Indian Offenses shall proceed to examine all evidence relating to the 
distribution of the decedent's estate, and consider objections to the 
final account which may have been filed by any heir, devisee, legatee, 
or other person having an interest in the distribution of the estate. 
Upon conclusion of the hearing, the court shall enter an order:
    (a) Providing for payment of approved claims;
    (b) Determining the decedent's heirs, devisees and legatees, 
indicating the names, ages and addresses of each, and

[[Page 43]]

the distributive share of the remaining estate which each distributee is 
to receive; and
    (c) Directing the administrator or executor to distribute such 
distributive share to those entitled thereto.



Sec. 11.711  Descent and distribution.

    (a) The court shall distribute the estate according to the terms of 
the will of the decedent which has been admitted to probate.
    (b) If the decedent died intestate or having left a will which has 
been rejected by the court, the estate shall be distributed as follows:
    (1) According to the laws and customs of the tribe if such laws and 
customs are proved; or
    (2) According to state law absent the existence of tribal laws or 
customs.
    (c) If no person takes under the above subsections, the estate shall 
escheat to the tribe.



Sec. 11.712  Closing estate.

    (a) Upon finding that the estate has been fully administered and is 
in a condition to be closed, the court shall enter an order closing the 
estate and discharging the executor or administrator.
    (b) If an order closing the estate has not been entered by the end 
of nine months following appointment of executor or administrator, the 
executor or administrator shall file a written report with the court 
stating the reasons why the estate has not been closed.



Sec. 11.713  Small estates.

    An estate having an appraised value which does not exceed $2,000.00 
and which is to be inherited by a surviving spouse and/or minor children 
of the deceased may, upon petition of the executor or administrator, and 
a hearing before the court, be distributed without administration to 
those entitled thereto, upon which the estate shall be closed.



                     Subpart H_Appellate Proceedings



Sec. 11.800  Jurisdiction of appellate division.

    The jurisdiction of the appellate division shall extend to all 
appeals from final orders and judgments of the trial division, by any 
party except the prosecution in a criminal case where there has been a 
jury verdict. The appellate division shall review all issues of law 
presented to it which arose in the case, but shall not reverse the trial 
division decision unless the legal error committed affected a 
substantial right of a party or the outcome of the case.



Sec. 11.801  Procedure on appeal.

    (a) An appeal must be taken within 15 days from the judgment 
appealed from by filing a written notice of appeal with the clerk of the 
court.
    (b) The notice of appeal shall specify the party or parties taking 
the appeal, shall designate the judgment, or part thereof appealed from, 
and shall contain a short statement of reasons for the appeal. The clerk 
of the court shall mail a copy of the notice of appeal to all parties 
other than parties taking the appeal.
    (c) In civil cases, other parties shall have 15 days to respond to 
the notice of appeal.
    (d) In civil cases, the appellant may request the trial division to 
stay the judgment pending action on the notice of appeal, and, if the 
appeal is allowed, either party may request the trial division to grant 
or stay an injunction pending appeal. The trial division may condition a 
stay or injunction pending appeal on the depositing of cash or bond 
sufficient to cover damages awarded by the court together with interest.



Sec. 11.802  Judgment against surety.

    Any surety to a bond submits himself or herself to the jurisdiction 
of the Court of Indian Offenses, and irrevocably appoints the clerk of 
the court as his or her agent upon whom any papers affecting his or her 
liability on the bond may be served.



Sec. 11.803  Record on appeal.

    Within 20 days after a notice of appeal is filed, the clerk of court 
shall certify and file with the appellate division the record of the 
case.



Sec. 11.804  Briefs and memoranda.

    (a) Within 30 days after the notice of appeal is filed, the 
appellant may file a

[[Page 44]]

written brief in support of his or her appeal. An original and one copy 
for each appellee shall be filed with the clerk of court who shall mail 
one copy by registered or certified mail to each appellee.
    (b) The appellee shall have 30 days after receipt of the appellant's 
brief within which to file an answer brief. An original and one copy for 
each appellant shall be filed with the clerk of the court who shall mail 
one copy, by registered or certified mail, to each appellant.



Sec. 11.805  Oral argument.

    The appellate division shall assign all criminal cases for oral 
argument. The court may in its discretion assign civil cases for oral 
argument or may dispose of civil cases on the briefs without argument.



Sec. 11.806  Rules of court.

    The chief magistrate of the appellate division shall prescribe all 
necessary rules concerning the operation of the appellate division and 
the time and place of meeting of the court.



                       Subpart I_Children's Court



Sec. 11.900  Definitions.

    For purposes of sections pertaining to the children's court:
    (a) Abandon means the leaving of a minor without communication or 
failing to support a minor for a period of one year or more with no 
indication of the parents' willingness to assume a parental role.
    (b) Adult means a person eighteen (18) years or older.
    (c) Counsel means an attorney admitted to the bar of a state or the 
District of Columbia or a lay advocate admitted to practice before the 
Court of Indian Offenses.
    (d) Custodian means one who has physical custody of a minor and who 
is providing food, shelter and supervision to the minor.
    (e) Custody means the power to control the day-to-day activities of 
the minor.
    (f) Delinquent act means an act which, if committed by an adult, 
would be designated a crime under this part or under an ordinance of the 
tribe.
    (g) Detention means the placement of a minor in a physically 
restrictive facility.
    (h) Guardian means a person other than the minor's parent who is by 
law responsible for the care of the minor.
    (i) Guardian ad Litem means a person appointed by the court to 
represent the minor's interests before the court.
    (j) Juvenile offender means a person who commits a delinquent act 
prior to his or her eighteenth birthday.
    (k) Minor means:
    (1) A person under 18 years of age,
    (2) A person 18 years of age or older concerning whom proceedings 
are commenced in the children's court prior to his or her eighteenth 
birthday, or
    (3) A person 18 years of age or older who is under the continuing 
jurisdiction of the children's court.
    (l) Minor-in-need-of-care means a minor who:
    (1) Has no parent or guardian available and willing to take care of 
him or her;
    (2) Is unwilling to allow his or her parent or guardian to take care 
of him or her;
    (3) Has suffered or is likely to suffer a physical or emotional 
injury, inflicted by other than accidental means, which causes or 
creates a substantial risk of death, disfigurement, impairment of bodily 
functions or emotional health;
    (4) Has not been provided with adequate food, clothing, shelter, 
medical care, education or supervision by his or her parent, guardian or 
custodian;
    (5) Has been sexually abused;
    (6) Has been committing delinquent acts as a result of parental 
pressure, guidance or approval; or,
    (7) Has been committing status offenses.
    (m) Status offense means an offense which, if committed by an adult, 
would not be designated a crime under this part or under an ordinance of 
the tribe.



Sec. 11.901  The children's court established.

    When conducting proceedings under Sec. Sec. 11.900-11.1114 of this 
part, the Court of Indian Offenses shall be known as the ``Children's 
Court''.

[[Page 45]]



Sec. 11.902  Non-criminal proceedings.

    No adjudication upon the status of any minor in the jurisdiction of 
the children's court shall be deemed criminal or be deemed a conviction 
of a crime, unless the children's court refers the matter to the Court 
of Indian Offenses. Neither the disposition nor evidence given before 
the children's court shall be admissible as evidence against the child 
in any proceeding in another court.



Sec. 11.903  Presenting officer.

    (a) The agency superintendent and the chief magistrate of the 
children's court shall jointly appoint a presenting officer to carry out 
the duties and responsibilities set forth under Sec. Sec. 11.900-
11.1114 of this part. The presenting officer's qualifications shall be 
the same as the qualifications for the official who acts as prosecutor 
for the Court of Indian Offenses. The presenting officer may be the same 
person who acts as prosecutor in the Court of Indian Offenses.
    (b) The presenting officer shall represent the tribe in all 
proceedings under Sec. Sec. 11.900-11.1114 of this part.



Sec. 11.904  Guardian ad litem.

    The children's court, under any proceeding authorized by this part, 
shall appoint, for the purposes of the proceeding, a guardian ad litem 
for a minor, where the court finds that the minor does not have a 
natural or adoptive parent, guardian or custodian willing and able to 
exercise effective guardianship, or where the parent, guardian, or 
custodian has been accused of abusing or neglecting the minor.



Sec. 11.905  Jurisdiction.

    The children's court has exclusive, original jurisdiction of the 
following proceedings:
    (a) Proceedings in which a minor who resides in a community for 
which the court is established is alleged to be a juvenile offender, 
unless the children's court transfers jurisdiction to the Court of 
Indian Offenses pursuant to Sec. 11.907 of this part.
    (b) Proceedings in which a minor who resides in a community for 
which the court is established is alleged to be a minor-in-need-of-care.



Sec. 11.906  Rights of parties.

    (a) In all hearings and proceedings under Sec. Sec. 11.900-11.1114 
of this part the following rights will be observed unless modified by 
the particular section describing a hearing or proceeding:
    (1) Notice of the hearing or proceeding shall be given the minor, 
his or her parents, guardian or custodian and their counsel. The notice 
shall be delivered by certified mail. The notice shall contain:
    (i) The name of the court;
    (ii) The title of the proceeding; and
    (iii) The date, time and place of the proceeding.
    (b) The children's court magistrate shall inform the minor and his 
or her parents, guardian or custodian of their right to retain counsel, 
and, in juvenile delinquency proceedings, shall tell them: ``You have a 
right to have a lawyer or other person represent you at this proceeding. 
If you cannot afford to hire counsel, the court will appoint counsel for 
you.''
    (c) If the children's court magistrate believes there is a potential 
conflict of interest between the minor and his or her parents, guardian, 
or custodian with respect to legal representation, the court shall 
appoint another person to act as counsel for the minor.
    (d) The minor need not be a witness against, nor otherwise 
incriminate, himself or herself.
    (e) The children's court shall give the minor, and the minor's 
parent, guardian or custodian the opportunity to introduce evidence, to 
be heard on their own behalf and to examine witnesses.



Sec. 11.907  Transfer to Court of Indian Offenses.

    (a) The presenting officer or the minor may file a petition 
requesting the children's court to transfer the minor to the Court of 
Indian Offenses if the minor is 14 years of age or older and is alleged 
to have committed an act that would have been considered a crime if 
committed by an adult.
    (b) The children's court shall conduct a hearing to determine 
whether jurisdiction of the minor should be transferred to the Court of 
Indian Offenses.

[[Page 46]]

    (1) The transfer hearing shall be held no more than 30 days after 
the petition is filed.
    (2) Written notice of the transfer hearing shall be given to the 
minor and the minor's parents, guardian or custodian at least 72 hours 
prior to the hearing.
    (c) All the rights listed in Sec. 11.906 shall be afforded the 
parties at the transfer hearing.
    (d) The following factors shall be considered when determining 
whether to transfer jurisdiction of the minor to the Court of Indian 
Offenses:
    (1) The nature and seriousness of the offense with which the minor 
is charged.
    (2) The nature and condition of the minor, as evidenced by his or 
her age; mental and physical condition; past record of offenses; and 
responses to past children's court efforts at rehabilitation.
    (e) The children's court may transfer jurisdiction of the minor to 
the Court of Indian Offenses if the children's court finds clear and 
convincing evidence that both of the following circumstances exist:
    (1) There are no reasonable prospects for rehabilitating the minor 
through resources available to the children's court; and
    (2) The offense allegedly committed by the minor evidences a pattern 
of conduct which constitutes a substantial danger to the public.
    (f) When a minor is transferred to the Court of Indian Offenses, the 
children's court shall issue a written transfer order containing reasons 
for its order. The transfer order constitutes a final order for purposes 
of appeal.



Sec. 11.908  Court records.

    (a) A record of all hearings under Sec. Sec. 11.900-11.1114 of this 
part shall be made and preserved.
    (b) All children's court records shall be confidential and shall not 
be open to inspection to anyone but the minor, the minor's parents or 
guardian, the presenting officer, or others by order of the children's 
court.



Sec. 11.909  Law enforcement records.

    (a) Law enforcement records and files concerning a minor shall be 
kept separate from the records and files of adults.
    (b) All law enforcement records and files shall be confidential and 
shall not be open to inspection to anyone but the minor, the minor's 
parents or guardian, the presenting officer, or others by order of the 
children's court.



Sec. 11.910  Expungement.

    When a minor who has been the subject of any proceeding before the 
children's court attains his or her twenty-first birthday, the 
children's court magistrate shall order the court records and the law 
enforcement records pertaining to the minor to be destroyed, except for 
adoption records which shall not be destroyed under any circumstances.



Sec. 11.911  Appeal.

    (a) For purposes of appeal, a record of the proceedings shall be 
made available to the minor and parents, guardian or custodian. Costs of 
obtaining the record shall be paid by the party seeking the appeal.
    (b) Any party to a children's court hearing may appeal a final order 
or disposition of the case by filing a written notice of appeal with the 
children's court within 30 days of the final order of disposition.
    (c) No decree or disposition of a hearing shall be stayed by such 
appeal.
    (d) All appeals shall be conducted in accordance with this part.



Sec. 11.912  Contempt of court.

    Any willful disobedience or interference with any order of the 
children's court constitutes contempt of court which may be punished in 
accordance with this part.



                  Subpart J_Juvenile Offender Procedure



Sec. 11.1000  Complaint.

    A complaint must be filed by a law enforcement officer or by the 
presenting officer and sworn to by a person who has knowledge of the 
facts alleged. The complaint shall be signed by the complaining witness, 
and shall contain:

[[Page 47]]

    (a) A citation to the specific section(s) of this part which gives 
the children's court jurisdiction of the proceedings;
    (b) A citation to the section(s) of this part which the minor is 
alleged to have violated;
    (c) The name, age, and address of the minor who is the subject of 
the complaint, if known; and
    (d) A plain and concise statement of the facts upon which the 
allegations are based, including the date, time, and location at which 
the alleged facts occurred.



Sec. 11.1001  Warrant.

    The children's court may issue a warrant directing that a minor be 
taken into custody if the court finds there is probable cause to believe 
the minor committed the delinquent act alleged in the complaint.



Sec. 11.1002  Custody.

    A minor may be taken into custody by a law enforcement officer if:
    (a) The officer observes the minor committing a delinquent act; or
    (b) The officer has reasonable grounds to believe a delinquent act 
has been committed that would be a crime if committed by an adult, and 
that the minor has committed the delinquent act; or
    (c) A warrant pursuant to Sec. 11.1001 has been issued for the 
minor.



Sec. 11.1003  Law enforcement officer's duties.

    A law enforcement officer who takes a minor into custody pursuant to 
Sec. 11.1002 of this part shall:
    (a) Give the following warnings to any minor taken into custody 
prior to any questioning:
    (1) The minor has a right to remain silent;
    (2) Anything the minor says can be used against the minor in court;
    (3) The minor has the right to the presence of counsel during 
questioning; and
    (4) If he or she cannot afford counsel, the court will appoint one.
    (b) Release the minor to the minor's parent, guardian, or custodian 
and issue a verbal advice or warning as may be appropriate, unless 
shelter care or detention is necessary.
    (c) If the minor is not released, make immediate and recurring 
efforts to notify the minor's parents, guardian, or custodian to inform 
them that the minor has been taken into custody and inform them of their 
right to be present with the minor until an investigation to determine 
the need for shelter care or detention is made by the court.



Sec. 11.1004  Detention and shelter care.

    (a) A minor alleged to be a juvenile offender may be detained, 
pending a court hearing, in the following places:
    (1) A foster care facility approved by the tribe;
    (2) A detention home approved by the tribe; or
    (3) A private family home approved by the tribe.
    (b) A minor who is 16 years of age or older may be detained in a 
jail facility used for the detention of adults only if:
    (1) A facility in paragraph (a) of this section is not available or 
would not assure adequate supervision of the minor;
    (2) The minor is housed in a separate room from the detained adults; 
and
    (3) Routine inspection of the room where the minor is housed is 
conducted every 30 minutes to assure his or her safety and welfare.



Sec. 11.1005  Preliminary inquiry.

    (a) If a minor is placed in detention or shelter care, the 
children's court shall conduct a preliminary inquiry within 24 hours for 
the purpose of determining:
    (1) Whether probable cause exist to believe the minor committed the 
alleged delinquent act; and
    (2) Whether continued detention or shelter care is necessary pending 
further proceedings.
    (b) If a minor has been released to the parents, guardian or 
custodian, the children's court shall conduct a preliminary inquiry 
within three days after receipt of the complaint for the sole purpose of 
determining whether probable cause exists to believe the minor committed 
the alleged delinquent act.

[[Page 48]]

    (c) If the minor's parents, guardian or custodian is not present at 
the preliminary inquiry, the children's court shall determine what 
efforts have been made to notify and to obtain the presence of the 
parents, guardian, or custodian. If it appears that further efforts are 
likely to produce the parents, guardian or custodian, the children's 
court shall recess for no more than 24 hours and direct that continued 
efforts be made to obtain the presence of parents, guardian or 
custodian.
    (d) All the rights listed in Sec. 11.906 shall be afforded the 
parties in a preliminary inquiry.
    (e) The children's court shall hear testimony concerning:
    (1) The circumstances that gave rise to the complaint or the taking 
of the minor into custody; and
    (2) The need for detention or shelter care.
    (f) If the children's court finds that probable cause exists to 
believe the minor performed the delinquent act, the minor shall be 
released to the parents, guardian or custodian, and ordered to appear at 
the adjudicatory hearing unless:
    (1) The act is serious enough to warrant continued detention or 
shelter care;
    (2) There is reasonable cause to believe the minor will run away and 
be unavailable for further proceedings; or
    (3) There is reasonable cause to believe that the minor will commit 
a serious act causing damage to person or property.
    (g) The children's court may release a minor pursuant to paragraph 
(f) of this section to a relative or other responsible adult tribal 
member if the parent, guardian, or custodian of the minor consents to 
the release. If the minor is ten years of age or older, the minor and 
the parents, guardian or custodian must both consent to the release.
    (h) Upon a finding that probable cause exists to believe that the 
minor has committed the alleged delinquent act and that there is need 
for detention or shelter care, the minor's detention or shelter care 
shall be continued. Otherwise, the complaint shall be dismissed and the 
minor released.



Sec. 11.1006  Investigation by the presenting officer.

    (a) The presenting officer shall make an investigation following the 
preliminary inquiry or the release of the minor to his or her parents, 
guardian or custodian to determine whether the interests of the minor 
and the public require that further action be taken. Upon the basis of 
this investigation, the presenting officer may:
    (1) Determine that no further action be taken;
    (2) Begin transfer proceedings to the Court of Indian Offenses 
pursuant to Sec. 11.907 of this part; or
    (3) File a petition pursuant to Sec. 11.1007 of this part to 
initiate further proceedings. The petition shall be filed within 48 
hours of the preliminary inquiry if the minor is in detention or shelter 
care. If the minor has been previously released to his or her parents, 
guardian or custodian, relative or responsible adult, the petition shall 
be filed within ten days of the preliminary inquiry.



Sec. 11.1007  Petition.

    (a) Proceedings under Sec. Sec. 11.1000-11.1014 of this part shall 
be instituted by a petition filed by the presenting officer on behalf of 
the tribe and in the interests of the minor. The petition shall state:
    (1) The name, birth date, and residence of the minor;
    (2) The names and residences of the minor's parents, guardian or 
custodian;
    (3) A citation to the specific section(s) of this part which gives 
the children's court jurisdiction of the proceedings;
    (4) A citation to the section(s) of this part which the minor is 
alleged to have violated; and
    (5) If the minor is in detention or shelter care, the time the minor 
was taken into custody.



Sec. 11.1008  Date of hearing.

    Upon receipt of the petition, the children's court shall set a date 
for the hearing which shall not be more than 15 days after the 
children's court receives the petition from the presenting officer. If 
the adjudicatory hearing is not held within 15 days after filing of

[[Page 49]]

the petition, the petition shall be dismissed and cannot be filed again, 
unless;
    (a) The hearing is continued upon motion of the minor; or
    (b) The hearing is continued upon motion of the presenting officer 
by reason of the unavailability of material evidence or witnesses and 
the children's court finds the presenting officer has exercised due 
diligence to obtain the material evidence or witnesses and reasonable 
grounds exist to believe that the material evidence or witnesses will 
become available.



Sec. 11.1009  Summons.

    (a) At least five working days prior to the adjudicatory hearing, 
the children's court shall issue summons to:
    (1) The minor;
    (2) The minor's parents, guardian or custodian; and
    (3) Any person the children's court or the minor believes necessary 
for the adjudication of the hearing.
    (b) The summons shall contain the name of the court, the title of 
the proceedings, and the date, time and place of the hearing.
    (c) A copy of the petition shall be attached to the summons.
    (d) The summons shall be delivered personally by a law enforcement 
officer or appointee of the children's court. If the summons cannot be 
delivered personally, the court may deliver it by certified mail.



Sec. 11.1010  Adjudicatory hearing.

    (a) The children's court shall conduct the adjudicatory hearing for 
the sole purpose of determining the guilt or innocence of the minor. The 
hearing shall be private and closed.
    (b) All the rights listed in Sec. 11.906 shall be afforded the 
parties at the adjudicatory hearing. The notice requirements of Sec. 
11.906(a) are met by a summons issued pursuant to Sec. 11.1009.
    (c) If the minor admits the allegations of the petition, the 
children's court shall proceed to the dispositional stage only if the 
children's court finds that:
    (1) The minor fully understands his or her rights as set forth in 
Sec. 11.906 of this part and fully understands the potential 
consequences of admitting the allegations;
    (2) The minor voluntarily, intelligently and knowingly admits to all 
facts necessary to constitute a basis for children's court action; and
    (3) The minor has not, in the purported admission to the 
allegations, set forth facts which, if found to be true, constitute a 
defense to the allegations.
    (d) The children's court shall hear testimony concerning the 
circumstances which gave rise to the complaint.
    (e) If the allegations of the petition are sustained by proof beyond 
a reasonable doubt, the children's court shall find the minor to be a 
juvenile offender and proceed to the dispositional hearing.
    (f) A finding that a minor is a juvenile offender constitutes a 
final order for purposes of appeal.



Sec. 11.1011  Dispositional hearing.

    (a) A dispositional hearing shall take place not more than 15 days 
after the adjudicatory hearing.
    (b) At the dispositional hearing, the children's court shall hear 
evidence on the question of proper disposition.
    (c) All the rights listed in Sec. 11.906 shall be afforded the 
parties in the dispositional hearing.
    (d) At the dispositional hearing, the children's court shall 
consider any predisposition report, physician's report or social study 
it may have ordered and afford the parents an opportunity to controvert 
the factual contents and conclusions of the reports. The children's 
court shall also consider the alternative predisposition report prepared 
by the minor and his or her attorney, if any.
    (e) The dispositional order constitutes a final order for purposes 
of appeal.



Sec. 11.1012  Dispositional alternatives.

    (a) If a minor has been adjudged a juvenile offender, the children's 
court may make the following disposition:
    (1) Place the minor on probation subject to conditions set by the 
children's court;
    (2) Place the minor in an agency or institution designated by the 
children's court; or

[[Page 50]]

    (3) Order restitution to the aggrieved party.
    (b) The dispositional orders are to be in effect for the time limit 
set by the children's court, but no order may continue after the minor 
reaches 18 years of age, unless the dispositional order was made within 
six months of the minor's eighteenth birthday or after the minor had 
reached 18 years of age, in which case the disposition may not continue 
for more than six months.
    (c) The dispositional order is to be reviewed at the children's 
court discretion, but at least once every six months.



Sec. 11.1013  Modification of dispositional order.

    (a) A dispositional order of the children's court may be modified 
upon a showing of a change of circumstances.
    (b) The children's court may modify a dispositional order at any 
time upon the motion of the minor or the minor's parents, guardian or 
custodian.
    (c) If the modification involves a change of custody, the children's 
court shall conduct a hearing pursuant to paragraph (d) of this section.
    (d) A hearing to review a dispositional order shall be conducted as 
follows:
    (1) All the rights listed in Sec. 11.906 shall be afforded the 
parties in the hearing to review the dispositional order. The notice 
required by paragraph (a) of Sec. 11.906 shall be given at least 48 
hours before the hearing.
    (2) The children's court shall review the performance of the minor, 
the minor's parents, guardian or custodian, and other persons providing 
assistance to the minor and the minor's family.
    (3) In determining modification of disposition, the procedures 
prescribed in Sec. 11.1011 of this part shall apply.
    (4) If the request for review of disposition is based upon an 
alleged violation of a court order, the children's court shall not 
modify its dispositional order unless it finds clear and convincing 
evidence of the violation.



Sec. 11.1014  Medical examination.

    The children's court may order a medical examination for a minor who 
is alleged to be a juvenile offender.



                Subpart K_Minor-in-Need-of-Care Procedure



Sec. 11.1100  Complaint.

    A complaint must be filed by a law enforcement officer or by the 
presenting officer and sworn to by a person who has knowledge of the 
facts alleged. The complaint shall be signed by the complaining witness 
and shall contain:
    (a) A citation to the specific section of this part which gives the 
children's court jurisdiction of the proceedings;
    (b) The name, age and address of the minor who is the subject of the 
complaint, if known; and
    (c) A plain and concise statement of the facts upon which the 
allegations are based, including the date, time and location at which 
the alleged facts occurred.



Sec. 11.1101  Warrant.

    The children's court may issue a warrant, directing that a minor be 
taken into custody if the children's court finds there is probable cause 
to believe the minor is a minor-in-need-of-care.



Sec. 11.1102  Custody.

    A minor may be taken into custody by a law enforcement officer if:
    (a) The officer has reasonable grounds to believe that the minor is 
a minor-in-need-of-care and that the minor is in immediate danger from 
his or her surroundings and that removal is necessary; or
    (b) A warrant pursuant to Sec. 11.1101 of this part has been issued 
for the minor.



Sec. 11.1103  Law enforcement officer's duties.

    Upon taking a minor into custody the officer shall:
    (a) Release the minor to the minor's parents, guardian or custodian 
and issue a verbal advice or warning as may be appropriate, unless 
shelter care is necessary.
    (b) If the minor is not released, make immediate and recurring 
efforts to notify the minor's parents, guardian or custodian to inform 
them that the minor has been taken into custody and inform them of their 
right to be

[[Page 51]]

present with the minor until an investigation to determine the need for 
shelter care is made by the children's court.



Sec. 11.1104  Shelter care.

    (a) A minor alleged to be a minor-in-need-of-care may be detained, 
pending a court hearing, in the following places:
    (1) A foster care facility authorized under tribal or state law to 
provide foster care, group care or protective residence;
    (2) A private family home approved by the tribe; or
    (3) A shelter care facility operated by a licensed child welfare 
services agency and approved by the tribe.
    (b) A minor alleged to be a minor-in-need-of care may not be 
detained in a jail or other facility used for the detention of adults. 
If such minor is detained in a facility used for the detention of 
juvenile offenders, he or she must be detained in a room separate from 
juvenile offenders, and routine inspection of the room where the minor 
is detained must be conducted every 30 minutes to assure his or her 
safety and welfare.



Sec. 11.1105  Preliminary inquiry.

    (a) If a minor is placed in shelter care, the children's court shall 
conduct a preliminary inquiry with 24 hours for the purpose of 
determining:
    (1) Whether probable cause exists to believe the minor is a minor-
in-need-of care; and
    (2) Whether continued shelter care is necessary pending further 
proceedings.
    (b) If a minor has been released to the parents, guardian or 
custodian, the children's court shall conduct a preliminary inquiry 
within three days after receipt of the complaint for the sole purpose of 
determining whether probable cause exists to believe the minor is a 
minor-in-need-of-care.
    (c) If the minor's parents, guardian or custodian is not present at 
the preliminary inquiry, the children's court shall determine what 
efforts have been made to notify and obtain the presence of the parent, 
guardian or custodian. If it appears that further efforts are likely to 
produce the parent, guardian or custodian, the children's court shall 
recess for no more than 24 hours and direct that continued efforts be 
made to obtain the presence of the parents, guardian or custodian.
    (d) All the rights listed in Sec. 11.906 of this part shall be 
afforded the parties in the minor-in-need-of care preliminary inquiry 
except that the court is not required to appoint counsel if the parties 
cannot afford one. Notice of the inquiry shall be given to the minor, 
and his or her parents, guardian or custodian and their counsel as soon 
as the time for the inquiry has been established.
    (e) The children's court shall hear testimony concerning:
    (1) The circumstances that gave rise to the complaint or the taking 
of the minor into custody; and
    (2) The need for shelter care.
    (f) If the children's court finds that probable cause exists to 
believe the minor is a minor-in-need-of-care, the minor shall be 
released to the parents, guardian or custodian, and ordered to appear at 
the adjudicatory hearing, unless:
    (1) There is reasonable cause to believe that the minor will run 
away and be unavailable for further proceedings;
    (2) There is reasonable cause to believe that the minor is in 
immediate danger from parents, guardian or custodian and that removal 
from them is necessary; or
    (3) There is a reasonable cause to believe that the minor will 
commit a serious act causing damage to person or property.
    (g) The children's court may release the minor pursuant to paragraph 
(f) of this section to a relative or other responsible adult tribal 
member if the parents, guardian or custodian of the minor consent to the 
release. If the minor is ten years to age or older, the minor and the 
parents, guardian or custodian must both consent to the release.
    (h) Upon finding that probable cause exists to believe that the 
minor is a minor-in-need-of-care and that there is a need for shelter 
care, the minor's shelter care shall be continued. Otherwise, the 
complaint shall be dismissed and the minor released.

[[Page 52]]



Sec. 11.1106  Investigation by the presenting officer.

    The presenting officer shall make an investigation following the 
preliminary inquiry or the release of the minor to the parents, guardian 
or custodian to determine whether the interests of the minor and the 
public require that further action be taken. Upon the basis of this 
investigation, the presenting officer may:
    (a) Determine that no further action be taken; or
    (b) File a petition pursuant to Sec. 11.1107 of this part in the 
children's court to initiate further proceedings. The petition shall be 
filed within 48 hours of the preliminary inquiry if the minor is in 
shelter care. If the minor has been previously released to the parents, 
guardian or custodian, relative or responsible adult, the petition shall 
be filed within ten days of the preliminary inquiry.



Sec. 11.1107  Petition.

    Proceedings under Sec. Sec. 11.1100-11.1114 of this part shall be 
instituted by a petition filed by the presenting officer on behalf of 
the tribe and the interests of the minor. The petition shall state:
    (a) The name, birth date, and residence of the minor;
    (b) The names and residences of the minor's parents, guardian or 
custodian;
    (c) A citation to the specific section of this part which gives the 
children's court jurisdiction of the proceedings; and
    (d) If the minor is in shelter care, the place of shelter care and 
the time he or she was taken into custody.



Sec. 11.1108  Date of hearing.

    Upon receipt of the minor-in-need-of-care petition, the children's 
court shall set a date for the hearing which shall not be more than 15 
days after the children's court receives the petition from the 
presenting officer. If the adjudicatory hearing is not held within 15 
days after the filing of the petition, it shall be dismissed unless;
    (a) The hearing is continued upon motion of the minor; or
    (b) The hearing is continued upon motion of the presenting officer 
by reason of the unavailability of material evidence or witnesses and 
the children's court finds the presenting officer has exercised due 
diligence to obtain the material evidence or witnesses and reasonable 
grounds exist to believe that the material evidence or witnesses will 
become available.



Sec. 11.1109  Summons.

    (a) At least five working days prior to the adjudicatory hearing for 
a minor-in-need-of-care, the children's court shall issue summons to:
    (1) The minor;
    (2) The minor's parents, guardian or custodian; and
    (3) Any person the children's court or the minor believes necessary 
for the proper adjudication of the hearing.
    (b) The summons shall contain the name of the court; the title of 
the proceedings, and the date, time and place of the hearing.
    (c) A copy of the petition shall be attached to the summons.
    (d) The summons shall be delivered personally by a tribal law 
enforcement officer or appointee of the children's court. If the summons 
cannot be delivered personally, the court may deliver it by certified 
mail.



Sec. 11.1110  Minor-in-need-of-care adjudicatory hearing.

    (a) The children's court shall conduct the adjudicatory hearing for 
the sole purpose of determining whether the minor is a minor-in-need-of-
care. The hearing shall be private and closed.
    (b) All the rights listed in Sec. 11.906 of this part shall be 
afforded the parties in the adjudicatory hearing, except that the court 
may not appoint counsel if the parties cannot afford one. The notice 
requirements of Sec. 11.906(a) are met by a summons issued pursuant to 
Sec. 11.1109.
    (c) The children's court shall hear testimony concerning the 
circumstances which gave rise to the complaint.
    (d) If the circumstances of the petition are sustained by clear and 
convincing evidence, the children's court shall find the minor to be a 
minor-in-need-of-care and proceed to the dispositional hearing.
    (e) A finding that a minor is a minor-in-need-of-care constitutes a 
final order for purposes of appeal.

[[Page 53]]



Sec. 11.1111  Minor-in-need-of-care dispositional hearing.

    (a) No later than 15 days after the adjudicatory hearing, a 
dispositional hearing shall take place to hear evidence on the question 
of proper disposition.
    (b) All the rights listed in Sec. 11.906 of this part shall be 
afforded the parties in the dispositional hearing except the right to 
free court-appointed counsel. Notice of the hearing shall be given to 
the parties at least 48 hours before the hearing.
    (c) At the dispositional hearing the children's court shall consider 
any predisposition report or other study it may have ordered and afford 
the parties an opportunity to controvert the factual contents and 
conclusions of the reports. The children's court shall also consider the 
alternative predisposition report prepared by the minor and his or her 
attorney, if any.
    (d) The dispositional order constitutes a final order for purposes 
of appeal.



Sec. 11.1112  Dispositional alternatives.

    (a) If a minor has been adjudged a minor-in-need-of-care, the 
children's court may:
    (1) Permit the minor to remain with his or her parents, guardian or 
custodian subject to such limitations and conditions as the court may 
prescribe; or, if reasonable efforts to have the minor return or remain 
in his or her own home are unsuccessful, the children's court may make 
whichever of the following dispositions is in the best interest of the 
minor;
    (2) Place the minor with a relative within the boundaries of the 
reservation subject to such limitations and conditions as the court may 
prescribe;
    (3) Place the minor in a foster home within the boundaries of the 
reservation which has been approved by the tribe subject to such 
limitations and conditions as the court may prescribe;
    (4) Place the minor in shelter care facilities designated by the 
court;
    (5) Place the minor in a foster home or a relative's home outside 
the boundaries of the reservation subject to such limitations and 
conditions as the court may prescribe; or
    (6) Recommend that termination proceedings begin.
    (b) Whenever a minor is placed in a home or facility located outside 
the boundaries of the reservation, the court may require the party 
receiving custody of the minor to sign an agreement that the minor will 
be returned to the court upon order of the court.
    (c) The dispositional orders are to be in effect for the time limit 
set by the children's court, but no order may continue after the minor 
reaches 18 years of age, unless the dispositional order was made within 
six months of the minor's eighteenth birthday, in which case the 
disposition may not continue for more than six months.
    (d) The dispositional orders are to be reviewed at the children's 
court discretion, but at least once every six months to determine the 
continuing need for and appropriateness of placement, to determine the 
extent of progress made, and to assess the probability of the minor's 
return to his or her home.
    (e) A permanency planning hearing must be held within 18 months 
after the original placement and every six months thereafter to 
determine the future status of the minor except when the minor is 
returned to his or her home and court supervision ceases.



Sec. 11.1113  Modification of dispositional order.

    (a) A dispositional order of the children's court may be modified 
upon a showing of a change of circumstances.
    (b) The children's court may modify a dispositional order at any 
time upon motion of the minor or the minor's parents, guardian or 
custodian.
    (c) If the modification involves a change of custody, the children's 
court shall conduct a hearing pursuant to paragraph (d) of this section 
to review the dispositional order.
    (d) A hearing to review a dispositional order shall be conducted as 
follows:
    (1) All the rights listed in Sec. 11.906 of this part shall be 
afforded the parties in the review of the disposition hearing except the 
right to free court-appointed counsel. Notice of the hearing shall be 
given the parties at least 48 hours before the hearing.

[[Page 54]]

    (2) The children's court shall review the performance of the minor, 
the minor's parents, guardian or custodian, and other persons providing 
assistance to the minor and the minor's family.
    (3) In determining modification of disposition, the procedures 
prescribed in Sec. 11.1111 of this part shall apply.
    (4) If the request for review of disposition is based upon an 
alleged violation of a court order, the children's court shall not 
modify its dispositional order unless it finds clear and convincing 
evidence of the violation.



Sec. 11.1114  Termination.

    (a) Parental rights to a child may be terminated by the children's 
court according to the procedures in this section.
    (b) Proceedings to terminate parental rights shall be instituted by 
a petition filed by the presenting officer on behalf of the tribe or by 
the parents or guardian of the child. The petition shall state:
    (1) The name, birth date, and residence of the minor;
    (2) The names and residences of the minor's parents, guardian or 
custodian;
    (3) If the child is in detention or shelter care, the place of 
detention or shelter care and the time he was taken into custody; and
    (4) The reasons for the petition.
    (c) Upon receipt of the petition, the children's court shall set a 
date for the termination hearing which shall not be more than 15 days 
after the children's court receives the petition from the presenting 
officer. The hearing may be continued:
    (1) On motion of the minor's parents, guardian or custodian; or
    (2) Upon motion of the presenting officer by reason of the 
unavailability of material evidence or witnesses and the children's 
court finds the presenting officer has exercised due diligence to obtain 
the material evidence or witnesses and reasonable grounds exist to 
believe that the material evidence or witnesses will become available.
    (d) Summons:
    (1) At least five working days prior to the termination hearing, the 
children's court shall issue summons to the minor, the minor's parents, 
guardian or custodian, and any other person the court or the minor's 
parents, guardian or custodian believes necessary for the proper 
adjudication of the hearing.
    (2) The summons shall contain the name of the court, the title of 
the proceedings, and the date, time and place of the hearing.
    (3) A copy of the petition shall be attached to the summons.
    (4) The summons shall be delivered personally by a law enforcement 
officer or appointee of the children's court. If the summons cannot be 
delivered personally, the court may deliver it by certified mail.
    (e) The children's court shall conduct the termination hearing for 
the sole purpose of determining whether parental rights shall be 
terminated. The hearing shall be private and closed.
    (1) All the rights listed in Sec. 11.906 shall be afforded the 
parties in the termination hearing except the right to a free court-
appointed counsel. The minor's parents may not be compelled to be 
witnesses against, nor otherwise incriminate themselves.
    (2) The children's court shall hear testimony concerning the 
circumstances that gave rise to the petition, and the need for 
termination of parental rights.
    (3) The children's court may terminate parental rights if, following 
efforts to prevent or eliminate the need to remove the minor, it finds 
such efforts to have been unsuccessful, and it finds beyond a reasonable 
doubt that:
    (i) The child has been abandoned;
    (ii) The minor has suffered physical injuries, willfully and 
repeatedly inflicted by his or her parent(s) which cause or create a 
substantial risk of death, disfigurement, or impairment of bodily 
functions;
    (iii) The parent(s) has subjected the minor to willful and repeated 
acts of sexual abuse;
    (iv) The minor has suffered serious emotional or mental harm due to 
the act of the parent(s); or
    (v) The voluntary written consent of both parents has been 
acknowledged before the court.
    (f) Dispositional alternatives:
    (1) If parental rights to a child are terminated, the children's 
court shall

[[Page 55]]

place the minor in a foster care or shelter care facility which has been 
approved by the tribe, and follow the adoption procedures of the tribe, 
or, in their absence, the adoption procedures of the state within which 
it is located.
    (2) If parental rights to a child are not terminated, the children's 
court shall make a disposition according to Sec. 11.1112 of this part.
    (g) The termination order constitutes a final order for purposes of 
appeal.
    (h) No adjudication of termination of parental rights shall affect 
the minor's enrollment status as a member of any tribe or the minor's 
degree of blood quantum of any tribe.



Sec. 11.1115  Information collection.

    (a) The information collection requirements contained in Sec. 
11.600 and Sec. 11.606 have been approved by the Office of Management 
and Budget under 44 U.S.C. 3501 et seq., and assigned approval number 
1076-0094. The information is being collected to obtain a marriage 
license (Sec. 11.600) and a divorce decree (Sec. 11.606) from the 
Courts of Indian Offenses, and will be used by the courts to issue a 
marriage license or divorce decree. Response to this request is required 
to obtain a benefit.
    (b) Public reporting for this information collection is estimated to 
average .25 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 336-SIB, 1849 C Street, NW., Washington, DC 20240; and the Office 
of Information and Regulatory Affairs [Project 1076-0094], Office of 
Management and Budget, Washington, DC 20502.



PART 12_INDIAN COUNTRY LAW ENFORCEMENT--Table of Contents




                       Subpart A_Responsibilities

Sec.
12.1 Who is responsible for the Bureau of Indian Affairs law enforcement 
          function?
12.2 What is the role of the Bureau of Indian Affairs Director of Law 
          Enforcement Services?
12.3 Who supervises Bureau of Indian Affairs criminal investigators?
12.4 Who supervises the Bureau of Indian Affairs uniformed police, 
          detention, and conservation enforcement functions?

                    Subpart B_Policies and Standards

12.11 Do I have to follow these regulations?
12.12 What about self-determination?
12.13 What happens if I do not follow the rules in this part?
12.14 Where can I find specific policies and standards for law 
          enforcement functions in Indian country?

                  Subpart C_Authority and Jurisdiction

12.21 What authority is given to Indian country law enforcement officers 
          to perform their duties?
12.22 Can Bureau of Indian Affairs law enforcement officers enforce 
          tribal laws?
12.23 What are the jurisdictional limits in Indian country?

           Subpart D_Qualifications and Training Requirements

12.31 Are there any minimum employment standards for Indian country law 
          enforcement personnel?
12.32 Do minimum employment standards include a background 
          investigation?
12.33 Are Indian country law enforcement officers paid less than other 
          law enforcement officers?
12.34 Do minimum salaries and position classifications apply to a tribe 
          that has contracted or compacted law enforcement under self-
          determination?
12.35 Do Indian country law enforcement officers complete any special 
          training?
12.36 Does other law enforcement training count?

                    Subpart E_Records and Information

12.41 Who keeps statistics for Indian country law enforcement 
          activities?
12.42 Do Indian country law enforcement programs share information with 
          their own communities or other agencies?

                            Subpart F_Conduct

12.51 Must Indian country law enforcement officers follow a code of 
          conduct?
12.52 How do I report misconduct?
12.53 Who investigates officer misconduct?
12.54 What can I do if I believe my civil rights have been violated?
12.55 Are there any limits on how much force an officer can use when 
          performing law enforcement duties?

[[Page 56]]

                       Subpart G_Support Functions

12.61 Can I be paid for information that helps solve a crime?
12.62 Who decides what uniform an Indian country law enforcement officer 
          can wear and who pays for it?
12.63 Do Indian country law enforcement officers perform other duties as 
          well?

    Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 13, 2417, 2453, and 2802.

    Source: 62 FR 15611, Apr. 2, 1997, unless otherwise noted.



                       Subpart A_Responsibilities



Sec. 12.1  Who is responsible for the Bureau of Indian Affairs law 

enforcement function?

    The Commissioner of Indian Affairs, or in the absence of a 
Commissioner, the Deputy Commissioner, is responsible for Bureau of 
Indian Affairs-operated and contracted law enforcement programs, and for 
overall policy development and implementation of the Indian Law 
Enforcement Reform Act, Public Law 101-379 (25 U.S.C. 2801 et seq.).



Sec. 12.2  What is the role of the Bureau of Indian Affairs Director 

of Law Enforcement Services?

    The Director of the Office of Law Enforcement Services for the 
Bureau of Indian Affairs (Director) has been delegated the 
responsibility for the development of law enforcement and detention 
policies, standards, and management of all Bureau of Indian Affairs 
(BIA) criminal investigations, drug enforcement, training, internal 
affairs, inspection and evaluation, emergency response forces, and other 
national level Indian country law enforcement initiatives. The Director 
publishes these policies and standards in law enforcement manuals and 
handbooks. The Director is also directly responsible for developing 
crime prevention and outreach programs within Indian country law 
enforcement.



Sec. 12.3  Who supervises Bureau of Indian Affairs criminal 

investigators?

    All BIA criminal investigators are supervised by other criminal 
investigators within the Office of Law Enforcement Services.



Sec. 12.4  Who supervises the Bureau of Indian Affairs uniformed 

police, detention, and conservation enforcement functions?

    The agency superintendent is directly responsible for the operation 
and management of BIA uniformed police operations, detention facilities, 
and conservation enforcement operations at any agency having these 
programs. The agency superintendent must also ensure technical support 
is provided to any agency contracting the law enforcement and/or 
detention program.



                    Subpart B_Policies and Standards



Sec. 12.11  Do I have to follow these regulations?

    You must follow the minimum standards outlined in the regulations in 
this part if you are part of a BIA or tribal law enforcement program 
receiving Federal funding or operating under a BIA law enforcement 
commission.



Sec. 12.12  What about self-determination?

    The regulations in this part are not intended to discourage 
contracting of Indian country law enforcement programs under the Indian 
Self-determination and Education Assistance Act (Pub. L. 93-638, as 
amended, 25 U.S.C. 450). The Deputy Commissioner of Indian Affairs will 
ensure minimum standards are maintained in high risk activities where 
the Federal government retains liability and the responsibility for 
settling tort claims arising from contracted law enforcement programs. 
It is not fair to law abiding citizens of Indian country to have 
anything less than a professional law enforcement program in their 
community. Indian country law enforcement programs that receive Federal 
funding and/or commissioning will be subject to a periodic inspection or 
evaluation to provide technical assistance, to ensure compliance with 
minimum Federal standards, and to identify necessary changes or 
improvements to BIA policies.



Sec. 12.13  What happens if I do not follow the rules in this part?

    Your BIA law enforcement commission may be revoked, your law 
enforcement contract may be canceled, and

[[Page 57]]

you may no longer be eligible for tribal shares allocated from the law 
enforcement budget.



Sec. 12.14  Where can I find specific policies and standards for 

law enforcement functions in Indian country?

    BIA will ensure that all Indian country law enforcement programs are 
provided a copy of the most current policy manuals and handbooks. Every 
Indian country law enforcement program covered by the regulations in 
this part must maintain an effective and efficient law enforcement 
program meeting minimal qualitative standards and procedures specified 
in chapter 68 Bureau of Indian Affairs Manual (BIAM) and the Law 
Enforcement Handbook.



                  Subpart C_Authority and Jurisdiction



Sec. 12.21  What authority is given to Indian country law 

enforcement officers to perform their duties?

    BIA law enforcement officers are commissioned under the authority 
established in 25 U.S.C. 2803. BIA may issue law enforcement commissions 
to other Federal, State, local and tribal full-time certified law 
enforcement officers to obtain active assistance in enforcing applicable 
Federal criminal statutes, including Federal hunting and fishing 
regulations, in Indian country.
    (a) BIA will issue commissions to other Federal, State, local and 
tribal full-time certified law enforcement officers only after the head 
of the local government or Federal agency completes an agreement with 
the Commissioner of Indian Affairs asking that BIA issue delegated 
commissions. The agreement must include language that allows the BIA to 
evaluate the effectiveness of these special law enforcement commissions 
and to investigate any allegations of misuse of authority.
    (b) Tribal law enforcement officers operating under a BIA contract 
or compact are not automatically commissioned as Federal officers; 
however, they may be commissioned on a case-by-case basis.



Sec. 12.22  Can Bureau of Indian Affairs law enforcement officers 

enforce tribal laws?

    BIA officers will enforce tribal laws only with the permission of 
the tribe. Local programs are encouraged to make arrangements and 
agreements with local jurisdictions to facilitate law enforcement 
objectives.



Sec. 12.23  What are the jurisdictional limits in Indian country?

    The Department of the Interior and the Department of Justice must 
maintain and periodically review and update a memorandum of 
understanding describing the relationship between the Federal Bureau of 
Investigation and the Bureau of Indian Affairs in the investigation and 
prosecution of major crimes in Indian country. Any law enforcement 
programs performing duties under the authority of 25 U.S.C. 2803 must 
follow the guidelines in the memorandum of understanding and any local 
United States Attorney's guidelines for the investigation and 
prosecution of Federal crimes.



           Subpart D_Qualifications and Training Requirements



Sec. 12.31  Are there any minimum employment standards for Indian

country law enforcement personnel?

    The Director must develop, maintain, and periodically review the 
qualification standards, including medical qualification standards, for 
all BIA law enforcement, detention, and conservation enforcement 
occupational series. The standards will be no less stringent than the 
minimum standards established by the U.S. Office of Personnel Management 
(OPM) for these occupational series, and may exceed the OPM standards. 
BIA standards are available for review at any BIA personnel office. All 
tribal programs are encouraged to develop standards at least as 
stringent as those established for BIA officers.



Sec. 12.32  Do minimum employment standards include a background 

investigation?

    Law enforcement authority is only entrusted to personnel possessing 
adequate education and/or experience,

[[Page 58]]

training, aptitude, and high moral character. All Indian country law 
enforcement programs receiving Federal funding and/or authority must 
ensure that all law enforcement officers successfully complete a 
thorough background investigation no less stringent than required of a 
Federal officer performing the same duties. The background 
investigations of applicants and employees must be adjudicated by 
trained and qualified security professionals. All background 
investigations must be documented and available for inspection by the 
Bureau of Indian Affairs.



Sec. 12.33  Are Indian country law enforcement officers paid less 

than other law enforcement officers?

    An officer's pay is determined by his/her grade and classification. 
The Commissioner of Indian Affairs must ensure that all BIA law 
enforcement officer positions are established at no lower grade level on 
the Federal scale than similar Federal law enforcement officer positions 
in other agencies. No BIA position performing commissioned law 
enforcement duties will be classified in other than the GS 0083, police 
officer series, for uniformed officers and the GS 1811, criminal 
investigating series, for criminal investigators.



Sec. 12.34  Do minimum salaries and position classifications apply

to a tribe that has contracted or compacted law enforcement under 
self-determination?

    Any contract or compact with the BIA to provide law enforcement 
services for an Indian tribe must require a law enforcement officer to 
be paid at least the same salary as a BIA officer performing the same 
duties.



Sec. 12.35  Do Indian country law enforcement officers complete any 

special training?

    Law enforcement personnel of any program funded by the Bureau of 
Indian Affairs must not perform law enforcement duties until they have 
successfully completed a basic law enforcement training course 
prescribed by the Director. The Director will also prescribe mandatory 
supplemental and in-service training courses.



Sec. 12.36  Does other law enforcement training count?

    All requests for evaluation of equivalent training must be submitted 
to the Indian Police Academy for review, with final determination made 
by the Director. Requests for a waiver of training requirements to use 
personnel before completing the required courses of instruction must be 
submitted to the Director and approved or disapproved by the 
Commissioner of Indian Affairs. In no case will such a waiver allow 
personnel to be used in any position for more than one year without 
achieving training standards. Failure to complete basic training 
requirements will result in removal from a law enforcement position.



                    Subpart E_Records and Information



Sec. 12.41  Who keeps statistics for Indian country law enforcement

activities?

    The Director maintains a criminal justice information system for 
Indian country. The Director will prescribe the types of data to be 
collected and the reporting format to be used to collect information and 
assemble reports on crime reported in Indian country. These reports may 
be provided to the Department of Justice. Any law enforcement program 
receiving funding from the BIA must use the same reporting format and 
submit the same statistical reports to the Office of Law Enforcement 
Services as prescribed by the Director and as are required of all BIA 
law enforcement programs.



Sec. 12.42  Do Indian country law enforcement programs share 

information with their own communities or other agencies?

    At intervals established by the Director, each BIA criminal 
investigations program, and any investigations program receiving BIA 
funds will consult with local tribal leaders and managers of local 
patrol and detention programs. They will discuss the quality of the 
local investigations program and offer feedback and technical 
assistance. There will be no requirement to disclose confidential 
investigative information or to compromise ongoing investigations during 
this process.

[[Page 59]]



                            Subpart F_Conduct



Sec. 12.51  Must Indian country law enforcement officers follow 

a code of conduct?

    All law enforcement programs receiving Bureau of Indian Affairs 
funding or commissioning must establish a law enforcement code of 
conduct which establishes specific guidelines for conduct on and off 
duty, impartiality, and professional conduct in the performance of duty, 
and acceptance of gifts or favors. Each officer must acknowledge in 
writing receiving and understanding of this code of conduct. The 
acknowledgment will remain on file with the law enforcement program 
manager as long as the officer is employed there. Training will be 
conducted on this code of conduct and other ethics issues at least once 
each year.



Sec. 12.52  How do I report misconduct?

    The Director will develop and maintain a reporting system that 
allows any resident of or visitor to Indian country to report officer 
misconduct. Each law enforcement program in Indian country will maintain 
instructions on how to register a complaint. An overview of these steps 
must be posted for public viewing at each law enforcement facility in 
Indian country.



Sec. 12.53  Who investigates officer misconduct?

    The Director, Office of Law Enforcement Services maintains an 
internal affairs program that investigates all allegations of misconduct 
by BIA officers, and any officer receiving funding and/or authority from 
the BIA. All allegations of misconduct must be thoroughly investigated 
and appropriate action taken when warranted. Any person having knowledge 
of officer misconduct must report that information to the officer's 
supervisor. The supervisor must immediately report allegations to the 
internal affairs unit. Depending upon the severity of the allegation, 
the matter may be dealt with locally or it will be investigated by the 
internal affairs unit. Failure of any BIA employee to report known 
allegations may be considered misconduct in itself. Citizens may report 
officer misconduct directly to the internal affairs unit if that is more 
practical.



Sec. 12.54  What can I do if I believe my civil rights have been 

violated?

    All allegations of civil rights violations must be reported 
immediately to the internal affairs unit. That office will ensure that 
allegations are immediately reported to the Civil Rights Division of the 
U. S. Department of Justice through established procedures. BIA's 
internal affairs unit may also investigate the matter and make 
recommendations for additional action as necessary.



Sec. 12.55  Are there any limits on how much force an officer can 

use when performing law enforcement duties?

    The Director will develop and maintain the use of force policy for 
all BIA law enforcement personnel, and for programs receiving BIA 
funding or authority. Training in the use of force, to include non-
lethal measures, will be provided annually. All officers will 
successfully complete a course of instruction in firearms, to include 
judgement pistol shooting, approved by the Indian Police Academy before 
carrying a firearm on or off duty.



                       Subpart G_Support Functions



Sec. 12.61  Can I be paid for information that helps solve a crime?

    The Director can spend money to purchase evidence or information, or 
to offer a reward, in the investigation of a crime. This is subject to 
the availability of funds. This authority may be delegated in writing to 
supervisory criminal investigators within the Office of Law Enforcement 
Services in the BIA. The Director must develop policies and procedures 
for the expenditure, control, and audit of these funds before their use.



Sec. 12.62  Who decides what uniform an Indian country law 

enforcement officer can wear and who pays for it?

    Each local law enforcement program must establish its own uniform 
requirements for patrol and detention

[[Page 60]]

personnel. Uniformed BIA police officers may be paid an annual uniform 
allowance not to exceed $400. Local programs may provide uniforms and 
related equipment to officers in lieu of this payment. All law 
enforcement officers must also have their official identification on 
their person at all times when performing law enforcement duties. 
Uniforms, when worn, will be plainly distinguishable from the uniforms 
of any non-law enforcement personnel working on the reservation.



Sec. 12.63  Do Indian country law enforcement officers perform other 

duties as well?

    Law enforcement commissions will only be issued by the Bureau of 
Indian Affairs to persons occupying positions as full-time officers. 
Bureau of Indian Affairs funded or commissioned criminal investigators 
will not be responsible for supervising or managing any patrol, 
detention, or other uniformed police programs.



PART 13_TRIBAL REASSUMPTION OF JURISDICTION OVER CHILD CUSTODY 

PROCEEDINGS--Table of Contents




                            Subpart A_Purpose

Sec.
13.1 Purpose.
13.2 Information collection.

                         Subpart B_Reassumption

13.11 Contents of reassumption petitions.
13.12 Criteria for approval of reassumption petitions.
13.13 Technical assistance prior to petitioning.
13.14 Secretarial review procedure.
13.15 Administrative appeals.
13.16 Technical assistance after disapproval.

    Authority: 25 U.S.C. 1952.

    Source: 44 FR 45095, July 31, 1979, unless otherwise noted.



                            Subpart A_Purpose



Sec. 13.1  Purpose.

    (a) The regulations of this part establish the procedures by which 
an Indian tribe that occupies a reservation as defined in 25 U.S.C. 
1903(10) over which a state asserts any jurisdiction pursuant to the 
provisions of the Act of August 15, 1953 (67 Stat. 588) Pub. L. 83-280, 
or pursuant to any other federal law (including any special federal law 
applicable only to a tribe or tribes in Oklahoma), may reassume 
jurisdiction over Indian child custody proceedings as authorized by the 
Indian Child Welfare Act, Pub. L. 95-608, 92 Stat. 3069, 25 U.S.C. 1918.
    (b) On some reservations there are disputes concerning whether 
certain federal statutes have subjected Indian child custody proceedings 
to state jurisdiction or whether any such jurisdiction conferred on a 
state is exclusive of tribal jurisdiction. Tribes located on those 
reservations may wish to exercise exclusive jurisdiction or other 
jurisdiction currently exercised by the state without the necessity of 
engaging in protracted litigation. The procedures in this part also 
permit such tribes to secure unquestioned exclusive, concurrent or 
partial jurisdiction over Indian child custody matters without 
relinquishing their claim that no Federal statute had ever deprived them 
of that jurisdiction.
    (c) Some tribes may wish to join together in a consortium to 
establish a single entity that will exercise jurisdiction over all their 
members located on the reservations of tribes participating in the 
consortium. These regulations also provide a procedure by which tribes 
may reassume jurisdiction through such a consortium.
    (d) These regulations also provide for limited reassumptions 
including jurisdiction restricted to cases transferred from state courts 
under 25 U.S.C. 1911(b) and jurisdiction over limited geographical 
areas.
    (e) Unless the petition for reassumption specifically states 
otherwise, where a tribe reassumes jurisdiction over the reservation it 
occupies, any land or community occupied by that tribe which 
subsequently acquires the status of reservation as defined in 25 U.S.C. 
1903(10) also becomes subject to tribal jurisdiction over Indian child 
custody matters.



Sec. 13.2  Information collection.

    The information collection requirement contained in Sec. 13.11 has 
been approved by the Office of Management and Budget under 44 U.S.C. 
3501 et seq.

[[Page 61]]

and assigned clearance number 1076-0112. The information is being 
collected when federally recognized tribes request reassumption of 
jurisdiction over child custody proceedings. The information will be 
used to determine if reassumption of jurisdiction over Indian child 
custody proceedings is feasible. Response is required to obtain a 
benefit.

[53 FR 21994, June 13, 1988]



                         Subpart B_Reassumption



Sec. 13.11  Contents of reassumption petitions.

    (a) Each petition to reassume jurisdiction over Indian child custody 
proceedings and the accompanying plan shall contain, where available, 
the following information in sufficient detail to permit the Secretary 
to determine whether reassumption is feasible:
    (1) Full name, address and telephone number of the petitioning tribe 
or tribes.
    (2) A resolution by the tribal governing body supporting the 
petition and plan. If the territory involved is occupied by more than 
one tribe and jurisdiction is to be reassumed over all Indians residing 
in the territory, the governing body of each tribe involved must adopt 
such a resolution. A tribe that shares territory with another tribe or 
tribes may reassume jurisdiction only over its own members without 
obtaining the consent of the other tribe or tribes. Where a group of 
tribes form a consortium to reassume jurisdiction, the governing body of 
each participating tribe must submit a resolution.
    (3) The proposed date on which jurisdiction would be reassumed.
    (4) Estimated total number of members in the petitioning tribe or 
tribes, together with an explanation of how the number was estimated.
    (5) Current criteria for membership in the tribe or tribes.
    (6) Explanation of procedure by which a participant in an Indian 
child custody proceeding may determine whether a particular individual 
is a member of a petitioning tribe.
    (7) Citation to provision in tribal constitution or similar 
governing document, if any, that authorizes the tribal governing body to 
exercise jurisdiction over Indian child custody matters.
    (8) Description of the tribal court as defined in 25 U.S.C. 1903(12) 
that has been or will be established to exercise jurisdiction over 
Indian child custody matters. The description shall include an 
organization chart and budget for the court. The source and amount of 
non-tribal funds that will be used to fund the court shall be 
identified. Funds that will become available only when the tribe 
reassumes jurisdiction may be included.
    (9) Copy of any tribal ordinances or tribal court rules establishing 
procedures or rules for the exercise of jurisdiction over child custody 
matters.
    (10) Description of child and family support services that will be 
available to the tribe or tribes when jurisdiction reassumed. Such 
services include any resource to maintain family stability or provide 
support for an Indian child in the absence of a family--regardless of 
whether or not they are the type of services traditionally employed by 
social services agencies. The description shall include not only those 
resources of the tribe itself, but also any state or federal resources 
that will continue to be available after reassumption of jurisdiction.
    (11) Estimate of the number of child custody cases expected during a 
year together with an explanation of how the number was estimated.
    (12) Copy of any tribal agreements with states, other tribes or non-
Indian local governments relating to child custody matters.
    (b) If the petition is for jurisdiction other than transferral 
jurisdiction under 25 U.S.C. 1911(b), the following information shall 
also be included in the petition and plan:
    (1) Citation of the statute or statutes upon which the state has 
based its assertion of jurisdiction over Indian child custody matters.
    (2) Clear and definite description of the territory over which 
jurisdiction will be reassumed together with a statement of the size of 
the territory in square miles.
    (3) If a statute upon which the state bases its assertion of 
jurisdiction is a surplus land statute, a clear and definite description 
of the reservation

[[Page 62]]

boundaries that will be reestablished for purposes of the Indian Child 
Welfare Act.
    (4) Estimated total number of Indian children residing in the 
affected territory together with an explanation of how the number was 
estimated.



Sec. 13.12  Criteria for approval of reassumption petitions.

    (a) The Assistant Secretary--Indian Affairs shall approve a tribal 
petition to reassume jurisdiction over Indian child custody matters if:
    (1) Any reservation, as defined in 25 U.S.C. 1903(10), presently 
affected by the petition is presently occupied by the petitioning tribe 
or tribes;
    (2) The constitution or other governing document, if any, of the 
petitioning tribe or tribes authorizes the tribal governing body or 
bodies to exercise jurisdiction over Indian child custody matters;
    (3) The information and documents required by Sec. 13.11 of this 
part have been provided;
    (4) A tribal court, as defined in 25 U.S.C. 1903(12), has been 
established or will be established before reassumption and that tribal 
court will be able to exercise jurisdiction over Indian child custody 
matters in a manner that meets the requirements of the Indian Civil 
Rights Act, 25 U.S.C. 1302;
    (5) Child care services sufficient to meet the needs of most 
children the tribal court finds must be removed from parental custody 
are available or will be available at the time of reassumption of 
jurisdiction; and
    (6) The tribe or tribes have established a procedure for clearly 
identifying persons who will be subject to the jurisdiction of the tribe 
or tribes upon reassumption of jurisdiction.
    (b) If the technical assistance provided by the Bureau to the tribe 
to correct any deficiency which the Assistant Secretary--Indian Affairs 
has identified as a basis for disapproving a petition for reassumption 
of exclusive jurisdiction has proved unsuccessful in eliminating 
entirely such problem, the Bureau, at the request of the tribe, shall 
assist the tribe to assert whatever partial jurisdiction as provided in 
25 U.S.C. 1918(b) that is feasible and desired by the tribe. In the 
alternative, the Bureau, if requested by the concerned tribe, shall 
assist the tribe to enter into agreements with a state or states 
regarding the care and custody of Indian children and jurisdiction over 
Indian child custody proceedings, including agreements which may provide 
for the orderly transfer of jurisdiction to the tribe on a case-by-case 
basis or agreements which provide for concurrent jurisdiction between 
the state and the Indian tribe.



Sec. 13.13  Technical assistance prior to petitioning.

    (a) Upon the request of a tribe desiring to reassume jurisdiction 
over Indian child custody matters, Bureau agency and Area Offices shall 
provide technical assistance and make available any pertinent documents, 
records, maps or reports in the Bureau's possession to enable the tribe 
to meet the requirements for Secretarial approval of the petition.
    (b) Upon the request of such a tribe, to the extent funds are 
available, the Bureau may provide funding under the procedures 
established under 25 CFR 23.22 to assist the tribe in developing the 
tribal court and child care services that will be needed when 
jurisdiction is reassumed.



Sec. 13.14  Secretarial review procedure.

    (a) Upon receipt of the petition, the Assistant Secretary--Indian 
Affairs shall cause to be published in the Federal Register a notice 
stating that the petition has been received and is under review and that 
it may be inspected and copied at the Bureau agency office that serves 
the petitioning tribe or tribes.
    (1) No final action shall be taken until 45 days after the petition 
has been received.
    (2) Notice that a petition has been disapproved shall be published 
in the Federal Register no later than 75 days after the petition has 
been received.
    (3) Notice that a petition has been approved shall be published on a 
date requested by the petitioning tribe or within 75 days after the 
petition has been received--whichever is later.
    (b) Notice of approval shall include a clear and definite 
description of the

[[Page 63]]

territory presently subject to the reassumption of jurisdiction and 
shall state the date on which the reassumption becomes effective. A copy 
of the notice shall immediately be sent to the petitioning tribe and to 
the attorney general, governor and highest court of the affected State 
or States.
    (c) Reasons for disapproval of a petition shall be sent immediately 
to the petitioning tribe or tribes.
    (d) When a petition has been disapproved a tribe or tribes may 
repetition after taking action to overcome the deficiencies of the first 
petition.



Sec. 13.15  Administrative appeals.

    The decision of the Assistant Secretary--Indian Affairs may be 
appealed under procedures established in 43 CFR 4.350-4.369.\1\
---------------------------------------------------------------------------

    \1\ Sections 4.350-4.369 of 43 CFR part 4, were removed at 46 FR 
7335, Jan. 23, 1981.
---------------------------------------------------------------------------



Sec. 13.16  Technical assistance after disapproval.

    If a petition is disapproved, the Bureau shall immediately offer 
technical assistance to the tribal governing body for the purpose of 
overcoming the defect in the petition or plan that resulted in the 
disapproval.

[[Page 64]]



                          SUBCHAPTER C_PROBATE





PART 15_PROBATE OF INDIAN ESTATES, EXCEPT FOR MEMBERS OF THE FIVE 

CIVILIZED TRIBES--Table of Contents




                         Subpart A_Introduction

Sec.
15.1 What is the purpose of this part?
15.2 What terms do I need to know?
15.3 Will the Secretary probate all the property in Indian estates?
15.4 How does the probate process work?

                 Subpart B_Starting the Probate Process

15.101 How do I begin the BIA probate process?
15.102 May I notify BIA of a death if I am not related to the decedent?
15.103 When should BIA be notified of a death?
15.104 What other documents does BIA need to prepare a probate package?
15.105 Will BIA wait to begin the probate process until it is notified 
          of the decedent's death?
15.106 Can I get emergency assistance for funeral expenses from the 
          decedent's IIM account?
15.107 Who prepares an Indian probate package?
15.108 If the decedent was not an enrolled member of a tribe or was a 
          member of more than one tribe, who prepares the package?

                 Subpart C_Preparing the Probate Package

15.201 What will BIA do with the documents that I provide?
15.202 If the decedent owed me money, how do I file a claim against the 
          estate?
15.203 What must the complete probate package contain?

             Subpart D_Probate Processing and Distributions

15.301 What happens after BIA prepares the probate package?
15.302 What happens after the probate package is referred to OHA?
15.303 What happens after the probate decision is made?

                    Subpart E_Information and Records

15.401 How can I find out the status of a probate?
15.402 Who owns the records associated with this part?
15.403 How must records associated with this part be preserved?

    Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 372-74, 410; 44 U.S.C. 3101 
et seq.
    Cross Reference: For special rules applying to proceedings in Indian 
Probate (Determination of Heirs and Approval of Wills, Except for 
Members of the Five Civilized Tribes and Osage Indians), including 
hearings and appeals within the jurisdiction of the Office of Hearings 
and Appeals, see Title 43, Code of Federal Regulations, Part 4, Subpart 
D; Funds of deceased Indians other than the Five Civilized Tribes, see 
Title 25 Code of Federal Regulations, Part 115.

    Source: 70 FR 11808, Mar. 9, 2005, unless otherwise noted.



                         Subpart A_Introduction



Sec. 15.1  What is the purpose of this part?

    This part contains the procedures that the Secretary follows to 
initiate the probate of the trust estate of a deceased individual Indian 
who owned trust or restricted property. This part tells you how to file 
the necessary documents to probate the trust estate. This part also 
describes how probates will be processed by BIA, and how probates will 
be sent to the OHA for disposition.



Sec. 15.2  What terms do I need to know?

    Agency means the Bureau of Indian Affairs (BIA) agency office, or 
any other designated office in BIA, having jurisdiction over trust or 
restricted property and money. This term also means any office of a 
tribe that has contracted or compacted the BIA probate function under 25 
U.S.C. 450f or 458cc.
    ALJ means an administrative law judge with the Office of Hearings 
and Appeals (OHA) appointed pursuant to the Administrative Procedure 
Act, 5 U.S.C. 3105.
    Attorney decision maker means an attorney with OHA who conducts an 
informal hearing and renders a decision in any probate case that does 
not require a formal hearing and a decision by an ALJ or Indian probate 
judge.

[[Page 65]]

    Beneficiary means any individual who is designated in a decedent's 
will to receive trust or restricted property or money. The term includes 
both a devisee (someone who receives real property in a will) and a 
legatee (someone who receives personal property in a will).
    BIA means the Bureau of Indian Affairs within the Department of the 
Interior.
    Codicil means a supplement or addition to a will, executed with the 
same formalities as a will. It may explain, modify, add to, or revoke 
provisions in an existing will.
    Creditor means any individual or entity that submits a claim for 
payment from a decedent's estate.
    Day means a calendar day, unless otherwise stated.
    Decedent means a person who is deceased.
    Deciding official means an ALJ, Indian probate judge, or attorney 
decision maker.
    Decision or order means a written document issued by a deciding 
official making determinations as to heirs, wills, beneficiaries, and 
creditors' claims, and ordering distribution of property and money.
    Estate means the trust cash assets, restricted or trust lands, and 
other trust property owned by the decedent at the time of his or her 
death.
    Form OHA-7 means a form used by OHA (or an automated database 
equivalent) to record data for heirship and family history and to 
provide information on any wills, trust and restricted property, 
adoptions, and names and addresses of all interested parties.
    Formal hearing means a trial-type proceeding, conducted by an ALJ or 
Indian probate judge, in which evidence is obtained through the 
testimony of witnesses and the introduction of relevant documents.
    Heir means any individual who receives trust or restricted property 
or money from a decedent in an intestate proceeding.
    IIM account means funds held in an individual Indian money (IIM) 
account by the Office of the Special Trustee for American Indians (OST) 
or by a tribe performing this function under a contract or compact.
    Indian probate judge means an employee of OHA, other than an 
administrative law judge or attorney decision maker, to whom the 
Secretary has delegated authority to conduct hearings in probate cases 
in accordance with 43 CFR part 4, subpart D.
    Informal hearing means a meeting convened by an attorney decision 
maker in which interested parties are asked to present relevant 
information on uncontested issues.
    Interested party means any probable or actual heir, any beneficiary 
under a will, any party asserting a claim against a deceased Indian's 
estate, and any tribe having a statutory option to purchase the trust or 
restricted property interest of a decedent.
    Intestate means the decedent died without a valid will.
    LTRO means the Land Titles and Records Office within BIA.
    OHA means the Office of Hearings and Appeals, Department of the 
Interior.
    OST means the Office of the Special Trustee for American Indians, 
Department of the Interior.
    Probate means the legal process by which applicable tribal law, 
state law, or federal law that affects the distribution of a decedent's 
estate is applied to:
    (1) Determine the heirs;
    (2) Determine the validity of wills and determine beneficiaries;
    (3) Determine whether claims against the estate will be paid from 
trust funds; and
    (4) Transfer any funds or property held in trust by the Secretary 
for a decedent, or any restricted property of the decedent, to the 
heirs, beneficiaries, or other persons or entities entitled by law to 
receive it.
    Probate clerk means a BIA or tribal employee who is responsible for 
preparing a probate package.
    Probate specialist means a BIA or tribal employee who is trained in 
Indian probate matters.
    Restricted land means land the title to which is held by an 
individual Indian or a tribe and which can be alienated or encumbered by 
the owner only with the approval of the Secretary because of limitations 
contained in the conveyance instrument pursuant to federal law.

[[Page 66]]

    Secretary means the Secretary of the Interior or his or her 
authorized representative.
    Testate means the decedent executed a valid will before his or her 
death.
    Trust cash assets means the funds held in an IIM account that had 
accumulated or were due and owing to the decedent as of the date of 
death.
    Trust land means the land, or an interest therein, for which the 
United States holds fee title in trust for the benefit of an individual 
Indian.
    We or us means either an official of BIA or a tribe performing 
probate functions under a BIA contract or compact.
    Will means a written testamentary document that was signed by the 
decedent and attested to by two disinterested adult witnesses, and that 
states who will receive the decedent's trust or restricted property.
    You or I means an interested party, as defined herein, with an 
interest in the decedent's trust estate unless a specific section says 
otherwise.



Sec. 15.3  Will the Secretary probate all the property in Indian estates?

    (a) No. We will probate only the trust or restricted property in the 
estate of an Indian decedent.
    (b) We will not probate:
    (1) Real or personal property in an estate of an Indian decedent 
that is not trust or restricted property;
    (2) Restricted property derived from allotments in the estates of 
members of the Five Civilized Tribes (Cherokee, Choctaw, Chickasaw, 
Creek and Seminole) in Oklahoma; and
    (3) Restricted interests derived from allotments made to Osage 
Indians in Oklahoma (Osage Nation) and Osage headright interests.
    (c) We will probate the estate of a deceased member of the Five 
Civilized Tribes or Osage Nation who owns an interest in land derived 
from an individual Indian other than the Five Civilized Tribes or Osage 
Nation.



Sec. 15.4  How does the probate process work?

    The basic steps of the probate process are:
    (a) We find out about a person's death (see subpart B of this part 
for details);
    (b) We prepare a probate package that includes documents you send us 
(see subpart C of this part for details);
    (c) We refer the completed probate package to OHA for assignment to 
a deciding official (see subpart D of this part for details); and
    (d) The deciding official decides how to distribute the property 
and/or funds deposited in an IIM account and we make the distribution 
(see subpart D of this part for details).



                 Subpart B_Starting the Probate Process



Sec. 15.101  How do I begin the BIA probate process?

    As soon as possible you should contact the nearest BIA agency or 
regional office where the decedent was enrolled to inform us of the 
decedent's death.
    (a) You should provide a certified copy of the death certificate, if 
one exists.
    (b) If a death certificate does not exist, you should provide an 
affidavit of death prepared by the tribe with whom the decedent was 
associated or someone who knows about the decedent's death that 
specifies what is known about the date and cause of the decedent's 
death. A copy of any supporting documents that may be available, such as 
an obituary or death notice or a church or court record, should be 
provided along with the affidavit.



Sec. 15.102  May I notify BIA of a death if I am not related to 

the decedent?

    Yes. You do not need to be related to the decedent in order to 
notify us of the death. You can be a friend, neighbor, or any other 
interested party.



Sec. 15.103  When should BIA be notified of a death?

    There is no deadline for notifying us of a death. However, you 
should notify us of a death as soon as possible after the person dies.



Sec. 15.104  What other documents does BIA need to prepare a 

probate package?

    (a) You should provide us with the following documents and 
information

[[Page 67]]

before we can begin to process the probate package:
    (1) Social Security number of the decedent;
    (2) The birth certificate or other record of birth of the decedent, 
if available;
    (3) The death certificate or other reliable evidence of death as 
required by Sec. 15.101;
    (4) A list of known creditors against the estate and their 
addresses;
    (5) Current names and addresses of potential heirs and 
beneficiaries;
    (6) Any statements renouncing an interest in the estate;
    (7) Documents from a court of competent jurisdiction, including but 
not limited to:
    (i) All marriage licenses of the decedent;
    (ii) All divorce decrees of the decedent;
    (iii) Adoption and guardianship records relevant to the decedent;
    (iv) Any sworn statements regarding the decedent's family, including 
any statements of paternity or maternity;
    (v) Any name changes; and
    (vi) Any order requiring payment of child support;
    (8) All originals or copies of wills and codicils, and any 
revocations; and
    (9) Any additional documents you provide or that we request.
    (b) You must inform us if any of the documents or information 
identified in this part are not available.



Sec. 15.105  Will BIA wait to begin the probate process until it

is notified of the decedent's death?

    No, we will not wait to begin the probate process until we are 
notified of the decedent's death. If we find out about the death of a 
person, and if the decedent meets the criteria in Sec. 15.3, we will 
initiate the process to collect the necessary documentation. You should 
not assume that we will find out about a death. To assure timely 
distribution of the estate, you should notify us as provided in Sec. 
15.101.



Sec. 15.106  Can I get emergency assistance for funeral services from

the decedent's IIM account?

    (a) You may ask BIA for up to $1,000 from the decedent's IIM account 
if:
    (1) You are responsible for making the funeral arrangements on 
behalf of the family of a decedent who had an IIM account;
    (2) You have an immediate need to pay for funeral arrangements 
before burial; and
    (3) The decedent's IIM account contains more than $2,500 on the date 
of death.
    (b) You must apply for assistance under paragraph (a) of this 
section and submit to BIA an original itemized estimate of the cost of 
the service to be rendered and the identification of the service 
provider.
    (c) We may approve reasonable costs up to $1,000 that are necessary 
for the burial services, taking into consideration:
    (1) The total amount in the account;
    (2) The number of probable heirs or beneficiaries of whom we are 
aware;
    (3) The amount of any claims against the account of which we are 
aware; and
    (4) The availability of non-trust funds, and any other relevant 
factor.
    (d) We will make payments directly to the providers of the services.



Sec. 15.107  Who prepares an Indian probate package?

    The probate specialist or probate clerk at the agency or tribe where 
the decedent is an enrolled member will prepare the probate package in 
consultation with the probable heirs or beneficiaries who can be 
located.



Sec. 15.108  If the decedent was not an enrolled member of a tribe or

was a member of more than one tribe, who prepares the probate package?

    Unless otherwise provided by Federal law, the BIA agency that has 
jurisdiction over the tribe with the strongest association with the 
decedent will serve as the home agency and will prepare the probate 
package if the decedent either:
    (a) Was not an enrolled member of a tribe, but owns interests in 
trust or restricted property; or
    (b) Was a member of more than one tribe.

[[Page 68]]



                 Subpart C_Preparing the Probate Package



Sec. 15.201  What will BIA do with the documents that I provide?

    Once we receive the documents that you provide us under Sec. 
15.104, the probate specialist or probate clerk will:
    (a) Use the documents to prepare a probate package; and
    (b) Consult with you and any other sources to obtain any additional 
information needed for a complete package.



Sec. 15.202  If the decedent owed me money, how do I file a claim 

against the estate?

    (a) If you wish to make a claim against the estate of a decedent, 
you must submit to us an original and two copies of an itemized 
statement of the debt. The statement must show the amount of the 
original debt and the remaining balance on the date of the decedent's 
death.
    (b) The itemized statement must state whether you have filed a claim 
against the decedent's non-trust assets.
    (c) We must receive your claim within 60 days from the date we 
received the verification of the decedent's death in Sec. 15.101 to 
include the claim as part of the probate package.



Sec. 15.203  What must the complete probate package contain?

    The complete probate package must contain all of the following:
    (a) A certified copy of the death certificate, or if one does not 
exist, some other reliable evidence of death as required by Sec. 
15.101;
    (b) A completed Form OHA-7, ``Data for Heirship Findings and Family 
History,'' certified by BIA, with the enrollment or other identifying 
number shown for each potential heir or beneficiary, if such number has 
been assigned;
    (c) A certified inventory of trust or restricted real property;
    (d) A statement describing all income generating activity;
    (e) A copy of the decedent's IIM account ledger showing the balance 
of the account at the date of death and the balance of the account at 
the date of probate package submission;
    (f) All original or certified copies of wills, codicils, and any 
revocations of wills or codicils;
    (g) Any statements renouncing interest that have been submitted to 
the agency;
    (h) Claims of creditors against the estate, date stamped to show 
when the agency received them;
    (i) All documentation of payment of claims before the probate 
proceeding;
    (j) All other documents required in Sec. 15.104;
    (k) Tribal options to purchase interests of a decedent;
    (l) Affidavit of the probate clerk or probate specialist describing 
what efforts have been made to locate any missing probable heirs and 
beneficiaries; and
    (m) Any other documentation that may be required at the time of 
probate proceedings.



             Subpart D_Probate Processing and Distributions



Sec. 15.301  What happens after BIA prepares the probate package?

    (a) After we have assembled all the documents required by Sec. 
15.203, a probate specialist will refer the case to OHA for assignment 
to a deciding official.
    (b) At the same time the probate specialist refers the case to OHA, 
we will notify all interested parties of:
    (1) The right of the probable heirs or beneficiaries to request a 
formal hearing before an ALJ or Indian probate judge;
    (2) The identification of the probable legal heirs or the submission 
of an original or certified copy of a will or revocation and listed 
beneficiaries;
    (3) Any known claims against the estate; and
    (4) The address of the OHA office where the probate package has been 
sent.
    (c) We will send the notice described in paragraph (b) of this 
section by regular mail. It will inform the probable heirs or 
beneficiaries that:
    (1) They may ask OHA for an in-person hearing at a site convenient 
to most of the parties, a video conference or teleconference hearing (if 
available),

[[Page 69]]

or a decision based on documents in the probate package; and
    (2) If they do not request a formal hearing, the probate case may be 
assigned to an attorney decision maker, who will convene an in-person 
informal hearing at a site convenient to most of the parties.



Sec. 15.302  What happens after the probate package is referred to OHA?

    After OHA receives the probate package, it will assign the case to a 
deciding official, who will conduct the probate proceeding and issue a 
written decision or order in accordance with 43 CFR part 4, subpart D.



Sec. 15.303  What happens after the probate decision is made?

    (a) We will not pay claims, transfer title to land, or distribute 
trust cash assets for 75 days after the final OHA decision or order is 
mailed to the interested parties.
    (b) If an interested party files a timely request for de novo 
review, a request for rehearing, or an appeal in accordance with 43 CFR 
part 4, subpart D, we will not pay claims, transfer title to land, or 
distribute trust cash assets until the request or appeal is resolved.
    (c) After 75 days, if no request for de novo review, request for 
rehearing, or appeal has been filed, or after any request or appeal has 
been resolved, the following actions will take place:
    (1) The LTRO will change its land title records for the trust and 
restricted property in accordance with the final decision or order; and
    (2) OST will pay claims and distribute the IIM account in accordance 
with the final decision or order.



                    Subpart E_Information and Records



Sec. 15.401  How can I find out the status of a probate?

    You may request information about the status of an Indian probate 
from any BIA agency or regional office.



Sec. 15.402  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 this part, including the 
operation of a trust program pursuant to Public Law 93-638 as amended; 
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 are the property of the tribe if they are:
    (1) Not covered by paragraph (a) of this section; and
    (2) Are made or received by a tribe or tribal organization in the 
conduct of business with the Department of the Interior under this part.



Sec. 15.403  How must records associated with this part be preserved?

    (a) Any organization, including tribes and tribal organizations, 
that has records identified in Sec. 15.402(a):
    (1) 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; and
    (2) Is subject to inspection by the Secretary and the Archivist of 
the United States with respect to these records and related records 
management practices and safeguards required under the Federal Records 
Act.
    (b) A tribe or tribal organization should preserve the records 
identified in Sec. 15.402(b) for the period authorized by the Archivist 
of the United States for similar Department of the Interior records 
under 44 U.S.C. Chapter 33. If a tribe or tribal organization does not 
do so, it may be unable to adequately document essential transactions or 
furnish information necessary to protect its legal and financial rights 
or those of persons affected by its activities.



PART 16_ESTATES OF INDIANS OF THE FIVE CIVILIZED TRIBES--Table of Contents




Sec.
16.1 Definitions.
16.2 Scope of regulations.
16.3 Legal representation in State courts.
16.4 Exchange of information within the Department.
16.5 Acceptance and acknowledgement of service of process.

[[Page 70]]

16.6 Authority of attorneys in State court litigation.
16.7 Performance of Federal functions by successor State courts.
16.8 Summary distribution of small liquid estates.
16.9 Escheat of estates of decedents.

    Authority: 5 U.S.C. 301 (Interprets or applies Act of Apr. 26, 1906, 
ch. 1876, 34 Stat. 137, see 25 U.S.C. 355nt (1970); Act of May 27, 1908, 
ch. 199, 35 Stat. 312, see 25 U.S.C. 355nt (1970); Act of June 14, 1918, 
ch. 101, 40 Stat. 606, 25 U.S.C. 355, 375 (1970); Act of Apr. 12, 1926, 
ch. 115, 44 Stat. 239, see 25 U.S.C. 355nt (1970); Act of June 26, 1936, 
ch. 831, 49 Stat. 1967, 25 U.S.C. 501-509 (1970); Act of Aug. 4, 1947, 
ch. 458, 61 Stat. 731, 25 U.S.C. 502 (1970) and see 25 U.S.C. 355nt 
(1970); Act of Aug. 12, 1953, ch. 409, 67 Stat. 558, 25 U.S.C. 375c 
(1970) and see 25 U.S.C. 355nt (1970); Act of Aug. 11, 1955, ch. 786, 69 
Stat. 666, see 25 U.S.C. 355nt (1970); Act of Aug. 29, 1967, Pub. L. 90-
76, 81 Stat. 177, 25 U.S.C. 786-788 (1970); and Act of May 7, 1970, Pub. 
L. 91-240, 84 Stat. 203, 25 U.S.C. 375d (1970)).

    Source: 37 FR 7082, Apr. 8, 1972, unless otherwise noted.



Sec. 16.1  Definitions.

    (a) The term Secretary means the Secretary of the Interior and his 
authorized representatives.
    (b) The term Bureau means the Bureau of Indian Affairs, acting 
through the Commissioner of Indian Affairs and his authorized 
representatives, including field officials who are responsible for 
matters affecting properties in which a restricted interest is owned by 
an Indian of the Five Civilized Tribes.
    (c) The term Field Solicitor means the Regional Solicitor, Southwest 
Region, Page Belcher Federal Building, P.O. Box 3156, Tulsa, Oklahoma 
74101.
    (d) The term Indian of the Five Civilized Tribes means an individual 
who is either an enrolled member of the Cherokee, Chickasaw, Choctaw, 
Creek, or Seminole Tribes of Oklahoma, or a descendant of an enrolled 
member thereof.
    (e) The term restricted interest means an interest owned in real or 
personal property subject to restraints upon alienation imposed either 
by Federal statute or by administrative action authorized by Federal 
statute. Although this term includes property subject to restraints 
which may be removed by administrative action, its use in this part 
refers primarily to property subject to restraints which State courts 
have jurisdiction to remove in proceedings such as those specified in 
Sec. 16.2.

[37 FR 7082, Apr. 8, 1972, as amended at 50 FR 12529, Mar. 29, 1985]



Sec. 16.2  Scope of regulations.

    The regulations in this part set forth procedures for discharging 
the responsibilities of the Secretary in connection with the performance 
by State courts, as authorized by Federal statutes, of certain functions 
which affect properties in which a restricted interest is owned by an 
Indian of the Five Civilized Tribes. These State court functions pertain 
to such proceedings as guardianship, heirship determination, will 
probate, estate administration, conveyance approval, partition of real 
property, confirmation of title to real property, and appeal from action 
removing or failing to remove restrictions against alienation. In 
addition, the regulations in this part set forth procedures for 
discharging certain other responsibilities of the Secretary not 
necessarily involving State court functions, such as escheat of estates 
of deceased Indians of the Five Civilized Tribes.



Sec. 16.3  Legal representation in State courts.

    The statutory duties of the Secretary to furnish legal advice to any 
Indian of the Five Civilized Tribes, and to represent such Indian in 
State courts, in matters affecting a restricted interest owned by such 
Indian, shall be performed by attorneys on the staff of the Solicitor, 
under the supervision of the Field Solicitor. Such advice and 
representation shall be undertaken to the extent that the Field 
Solicitor in his discretion shall consider necessary to discharge said 
duties, with due regard to the complexity of the legal action 
contemplated, the availability of staff attorneys for such purposes, the 
value and extent of the restricted interests involved, possible 
conflicts between Indians claiming to be owners of such interests, the 
preference of such owners concerning legal representation, the financial 
resources available to such owners, the extent to which such owners 
require similar legal services in

[[Page 71]]

connection with their unrestricted properties, and any other factor 
appropriate for consideration.



Sec. 16.4  Exchange of information within the Department.

    To the extent that information may be useful in discharging the 
duties covered by the regulations in this part, the Bureau shall furnish 
to the Field Solicitor, either on a current basis or at periodic 
intervals, processes and notices received concerning court cases and 
information, as current and complete as may reasonably be obtainable, 
concerning the estate and status of an Indian of the Five Civilized 
Tribes for whom legal assistance should be rendered pursuant to the 
regulations in this part. Similarly, to the extent that such information 
may be useful for Bureau action or records, the Field Solicitor shall 
advise the Bureau of court proceedings, information received, and action 
taken in furnishing legal services pursuant to the regulations in this 
part.



Sec. 16.5  Acceptance and acknowledgement of service of process.

    Service by the Field Solicitor or any other person of any process or 
notice, pursuant to any Federal statute which by its express terms is 
applicable to Indians of the Five Civilized Tribes, may be accepted and 
acknowledged by the Field Solicitor, or by any attorney authorized to 
perform the duties specified in Sec. 16.3, on behalf of the Secretary 
and the Bureau, notwithstanding any specific designation in such statute 
of the official to be served (such as the Secretary, superintendent for 
the Five Civilized Tribes, Probate Attorney, etc.).



Sec. 16.6  Authority of attorneys in State court litigation.

    Attorneys authorized to perform the duties specified in Sec. 16.3 
appearing in State court litigation in their official capacities are 
authorized to take such action as the Secretary could take if he were 
personally appearing in his official capacity as counsel therein, 
including but not limited to the filing or decision against filing of 
initial, responsive, or supplemental pleadings and appeals from adverse 
judgments, the exercise or decision against exercise of a preferential 
right to purchase property subject to sale, the removal or decision 
against removal of actions to Federal courts, and the waiver or decision 
against waiver of the failure to make timely service of process or 
notice.



Sec. 16.7  Performance of Federal functions by successor State courts.

    All authority to perform functions relating to Indians of the Five 
Civilized Tribes which by express provisions of Federal statute had been 
conferred upon probate or county courts of Oklahoma before such county 
courts were abolished on January 12, 1969, has since that date been 
vested in the successor district courts of that State, and all rights of 
litigants continue undiminished in the successor forum, including the 
right to appeal from adverse decisions rendered therein to the successor 
appellate court.

(Interprets or applies Okla. Op. Atty. Gen. No. 68-381 (Dec. 20, 1968))



Sec. 16.8  Summary distribution of small liquid estates.

    Where information, furnished by the Bureau pursuant to Sec. 16.4 or 
otherwise obtained, reveals that the estate of a deceased Indian of the 
Five Civilized Tribes contains no restricted land but consists of a 
restricted interest in funds not exceeding $500 on deposit to the credit 
of the decedent, the Field Solicitor shall, in the absence of any final 
decree determining the heirs or legatees of the decedent, prepare and 
furnish to the Bureau a finding and order of distribution, based on 
affidavit or other proof of death and heirship or bequest, setting forth 
the facts of death and heirship or bequest and the amount payable from 
the estate to each person determined to be an heir or legatee of the 
decedent. The Field Solicitor shall mail to each person considered a 
possible claimant to any portion of the estate, as an heir or legatee or 
otherwise, a copy of the order with a notice that the order shall become 
final 30 days after the date of mailing thereof unless within that 
period the officer by whom the order was signed shall have received a 
written request for reconsideration of the order. After

[[Page 72]]

final action on any order has been taken by the Field Solicitor, the 
Bureau shall distribute the funds in the estate of the decedent in 
accordance with such final action, unless a timely appeal therefrom has 
been filed in accordance with part 2 of this title.



Sec. 16.9  Escheat of estates of decedents.

    Where information, furnished by the Bureau pursuant to Sec. 16.4 or 
otherwise obtained, reveals that the estate of a deceased Indian of the 
Five Civilized Tribes, who has been dead 5 or more years after having 
died intestate without heirs, consists of restricted interests in lands 
or rents or profits therefrom, the Field Solicitor shall, in the absence 
of any final decree determining that the decedent died without heirs or 
devisees, prepare and furnish to the Bureau a finding and order of 
escheat, based on affidavit or other proof of intestate death without 
heirs, setting forth the restricted interests in lands or rents or 
profits therefrom which have by escheat vested in the tribe which 
allotted the lands. The Field Solicitor shall mail to each person 
considered a possible claimant to any portion of the estate, as an heir 
or devisee or otherwise, a copy of the order with a notice that the 
order shall become final 30 days after the date of mailing thereof 
unless within that period the officer by whom the order was signed shall 
have received a written request for reconsideration of the order. After 
final action on any order has been taken by the Field Solicitor, the 
Bureau shall cause a certified copy thereof to be filed in the land 
records of each county within which are located any escheated lands 
described therein and shall cause the tribe to be credited with any 
funds in said estate which arose from rents or profits from such lands, 
unless a timely appeal therefrom has been filed in accordance with part 
2 of this title.



PART 17_ACTION ON WILLS OF OSAGE INDIANS--Table of Contents




Sec.
17.1 Definitions.
17.2 Attorneys.
17.3 Pleadings, notice and hearings.
17.4 Service on interested parties.
17.5 Minors represented at hearings.
17.6 Examination of witness.
17.7 Limiting number of witnesses.
17.8 Supplemental hearing.
17.9 Briefs.
17.10 Record.
17.11 Inspection of wills and approval as to form during testator's 
          lifetime.
17.12 Approval.
17.13 Government employees as beneficiaries.
17.14 Appeals.

    Authority: 5 U.S.C. 301.

    Source: 22 FR 10530, Dec. 24, 1957, unless otherwise noted.



Sec. 17.1  Definitions.

    When used in the regulations in this part the following words or 
terms shall have the meaning shown below:
    (a) Secretary means the Secretary of the Interior.
    (b) Commissioner means the Commissioner of Indian Affairs.
    (c) Superintendent means the superintendent of the Osage Indian 
Agency.
    (d) Special attorney means the special attorney for Osage Indians, 
or other legal officer designated by the Commissioner.



Sec. 17.2  Attorneys.

    Interested parties may appear in person or by attorneys at law. 
Attorneys must file written authority to appear for their clients in the 
proceedings.



Sec. 17.3  Pleadings, notice and hearings.

    (a) The petition for approval of the will of a deceased Osage Indian 
may be set down for hearing at a date not less than 30 days from the 
date the petition is filed. Hearings shall be conducted only after 
notice of the time and place of such hearings shall have been given by 
mail. The notice shall be mailed not less than 10 days preceding the 
date of the hearing and shall state that the special attorney will, at 
the time and place specified therein, take testimony to determine 
whether the will of the deceased Osage Indian shall be approved or 
disapproved. The notice shall list the presumptive heirs of the decedent 
and the beneficiaries under such will, and shall notify the attesting 
witnesses to be present and testify. It shall state that all persons 
interested in the estate of the decedent may be present at the hearing. 
The notice shall

[[Page 73]]

further state that the special attorney may, in his discretion, continue 
the hearing to another time or place to be announced at the original 
hearing.
    (b) Any interested party desiring to contest approval of the will 
may, not less than 5 days before the date set for hearing, file written 
objections in triplicate, showing that a copy thereof was served upon 
attorneys for the proponent and other attorneys of record in the case. 
Such contestant shall clearly state the interest he takes under the will 
and, if a presumptive heir, the interest he would take under the 
Oklahoma law. The contestant shall further state specifically the ground 
on which his contest is based.



Sec. 17.4  Service on interested parties.

    A copy of the notice of hearing shall be served by mail, at his last 
known place of residence, on each presumptive heir; each beneficiary 
under the will offered for consideration; and each attesting witness 
thereto. Such notice must be mailed not less than 10 days preceding the 
date set for the hearing.



Sec. 17.5  Minors represented at hearings.

    Minor heirs at law, who by the terms of the will are devised a 
lesser interest in the estate than they would take by descent, of whose 
interests are challenged, shall, with the approval of the special 
attorney, be represented at the hearing by guardians ad litem. Such 
minors 14 years of age or over may indicate in writing their choice of 
guardians ad litem. If no such choice has been indicated on the date of 
the hearing, the special attorney shall make the selection and 
appointment.



Sec. 17.6  Examination of witness.

    All testimony taken at the hearing shall be reduced to writing. Any 
interested party may cross-examine any witness. Attorneys and others 
will be required to adhere to the rules of evidence of the State of 
Oklahoma. If, in addition to oral testimony, affidavits or dispositions 
are introduced, they must be read, and any opposing claimant may require 
the presence of the affiant, if practicable, either at that or a 
subsequent hearing, and opportunity shall be given for cross-examination 
or for having counter interrogatories answered.



Sec. 17.7  Limiting number of witnesses.

    When the evidence seems clear and conclusive, the special attorney 
may, in his discretion, limit the number of witnesses to be examined 
formally upon any matter.



Sec. 17.8  Supplemental hearing.

    When it appears that a supplemental hearing is necessary to secure 
material evidence, such a hearing may be conducted after notice has been 
given to those persons on whom notice of the original hearing was served 
and to such other persons as the testimony taken at the original hearing 
indicates may have a possible interest in the estate.



Sec. 17.9  Briefs.

    When there are two or more parties with conflicting interests, the 
party upon whom the burden of proof may fall may be allowed a reasonable 
time, not to exceed 30 days following the conclusion of the hearing, in 
which to file a brief or other statement of his contentions, showing 
service on opposing counsel or litigant. The latter shall then be 
allowed not to exceed 20 days in which to file an answer brief or 
statement, and his opponent shall have 10 days thereafter to file a 
reply brief or statement. Upon proper showing the special attorney may 
grant extensions of time. Each brief or statement shall be filed in 
duplicate.



Sec. 17.10  Record.

    After the hearing or hearings on the will have been terminated the 
special attorney shall make up the record and transmit it with his 
recommendation to the superintendent. The record shall contain:
    (a) Copy of notices mailed to the attesting witnesses and the 
interested parties.
    (b) Proof of mailing of notices.
    (c) The evidence received at the hearing or hearings.
    (d) The original of the will or wills considered at the hearings.
    (e) A copy of all the pleadings.

The record, except the original will, shall be a part of the permanent 
files of the Osage Agency.

[[Page 74]]



Sec. 17.11  Inspection of wills and approval as to form during 

testator's lifetime.

    When a will has been executed and filed with the superintendent 
during the lifetime of the testator, the will shall be considered by the 
special attorney who may endorse on such will ``approved as to form.'' A 
will shall be held in absolute confidence and its contents shall not be 
divulged prior to the death of the testator.



Sec. 17.12  Approval.

    After hearings have been concluded in conformity with this part the 
superintendent shall approve or disapprove the wills of deceased Osage 
Indians.



Sec. 17.13  Government employees as beneficiaries.

    In considering the will of a deceased Osage Indian the 
superintendent may disapprove any will which names as a beneficiary 
thereunder a government employee who is not related to the testator by 
blood, or otherwise the natural object of the testator's bounty.



Sec. 17.14  Appeals.

    (a) Notwithstanding the provisions in part 2 of this chapter 
concerning appeals generally from administrative actions, any appeal 
from the action of the superintendent of approving or disapproving a 
will shall be taken to the Secretary. Upon the superintendent's final 
action of approval or disapproval of a will, he shall immediately notify 
by mail all attorneys appearing in the case, together with interested 
parties who are not represented by attorneys, of his decision and of 
their right to file an appeal.
    (b) Any party desiring to appeal from the action of the 
superintendent shall, within 15 days after the date of the mailing of 
notice of the decision file with the superintendent a notice in writing 
of his intention to appeal to the Secretary, and shall, within 30 days 
after the mailing date of such notice by the superintendent, perfect his 
appeal to the Secretary by service of the appeal upon the superintendent 
who will transmit the entire record to the Secretary. If no notice of 
intention to appeal is given within 15 days, the superintendent's 
decision will be final.
    (c) Upon the filing of notice with the superintendent of intention 
to appeal or the perfecting of an appeal by service upon the 
superintendent, at the same time similar notice and service shall be 
effected by the party taking an appeal upon opposing counsel or 
litigants, and a statement included in the appeal that this has been 
done. A party taking an appeal may, within the same 30-day period 
allowed for perfecting an appeal, file a brief or other written 
statement of his contentions, showing also service of that brief upon 
opposing counsel or litigants. Opposing counsel or litigants shall have 
30 days from the date of the service of appellant's brief upon them in 
which to file an answer brief, copies of which also shall be served upon 
the appellant or opposing counsel and litigants. Except by special 
permission, no other briefs will be allowed on appeal.

[26 FR 10930, Nov. 22, 1961]

[[Page 75]]



                       SUBCHAPTER D_HUMAN SERVICES





PART 20_FINANCIAL ASSISTANCE AND SOCIAL SERVICES PROGRAMS--Table 

of Contents




                Subpart A_Definitions, Purpose and Policy

Sec.
20.100 What definitions clarify the meaning of the provisions of this 
          part?
20.101 What is the purpose of this part?
20.102 What is the Bureau's policy in providing financial assistance and 
          social services under this part?
20.103 Have the information collection requirements in this part been 
          approved by the Office of Management and Budget?

                        Subpart B_Welfare Reform

20.200 What contact will the Bureau maintain with State, tribal, county, 
          local, and other Federal agency programs?
20.201 How does the Bureau designate a service area and what information 
          is required?
20.202 What is a tribal redesign plan?
20.203 Can a tribe incorporate assistance from other sources into a 
          tribal redesign plan?
20.204 Must all tribes submit a tribal redesign plan?
20.205 Can tribes change eligibility criteria or levels of payments for 
          General Assistance?
20.206 Must a tribe get approval for a tribal redesign plan?
20.207 Can a tribe use savings from a tribal redesign plan to meet other 
          priorities of the tribe?
20.208 What if the tribal redesign plan leads to increased costs?
20.209 Can a tribe operating under a tribal redesign plan go back to 
          operating under this part?
20.210 Can eligibility criteria or payments for Burial Assistance, Child 
          Assistance, and Disaster Assistance and Emergency Assistance 
          change?

                       Subpart C_Direct Assistance

                    Eligibility for Direct Assistance

20.300 Who qualifies for Direct Assistance under this subpart?
20.301 What is the goal of General Assistance?
20.302 Are Indian applicants required to seek assistance through 
          Temporary Assistance for Needy Families?
20.303 When is an applicant eligible for General Assistance?
20.304 When will the Bureau review eligibility for General Assistance?
20.305 What is redetermination?
20.306 What is the payment standard for General Assistance?

                       Determining Need and Income

20.307 What resources does the Bureau consider when determining need?
20.308 What does earned income include?
20.309 What does unearned income include?
20.310 What recurring income must be prorated?
20.311 What amounts will the Bureau deduct from earned income?
20.312 What amounts will the Bureau deduct from income or other 
          resources?
20.313 How will the Bureau compute financial assistance payments?

                         Employment Requirements

20.314 What is the policy on employment?
20.315 Who is not covered by the employment policy?
20.316 What must a person covered by the employment policy do?
20.317 How will the ineligibility period be implemented?
20.318 What case management responsibilities does the social services 
          worker have?
20.319 What responsibilities does the general assistance recipient have?

                  Tribal Work Experience Program (TWEP)

20.320 What is TWEP?
20.321 Does TWEP allow an incentive payment?
20.322 Who can receive a TWEP incentive payment?
20.323 Will the local TWEP be required to have written program 
          procedures?

                            Burial Assistance

20.324 When can the Bureau provide Burial Assistance?
20.325 Who can apply for Burial Assistance?
20.326 Does Burial Assistance cover transportation costs?

                           Disaster Assistance

20.327 When can the Bureau provide Disaster Assistance?
20.328 How can a tribe apply for Disaster Assistance?

                          Emergency Assistance

20.329 When can the Bureau provide Emergency Assistance payments?
20.330 What is the payment standard for Emergency Assistance?

[[Page 76]]

                          Adult Care Assistance

20.331 What is Adult Care Assistance?
20.332 Who can receive Adult Care Assistance?
20.333 How do I apply for Adult Care Assistance?
20.334 What happens after I apply?
20.335 What is the payment standard for Adult Care Assistance?

          Subpart D_Services to Children, Elderly, and Families

20.400 Who should receive Services to Children, Elderly, and Families?
20.401 What is included under Services to Children, Elderly, and 
          Families?
20.402 When are protective services provided?
20.403 What do protective services include?
20.404 What information is contained in a social services assessment?

                       Subpart E_Child Assistance

20.500 Who is eligible for Child Assistance?

                 How Child Assistance Funds Can Be Used

20.501 What services can be paid for with Child Assistance funds?
20.502 Can Child Assistance funds be used to place Indian children in 
          residential care facilities?
20.503 When can Child Assistance funds be used for Indian adoption or 
          guardianship subsidies?
20.504 What short-term homemaker services can Child Assistance pay for?
20.505 What services are provided jointly with the Child Assistance 
          Program?

                               Foster Care

20.506 What information is required in the foster care case file?
20.507 What requirements must foster care providers meet?
20.508 What must the social services agency do when a child is placed in 
          foster care, residential care or guardianship home?
20.509 What must the social services worker do when a child is placed in 
          foster care or residential care facility?
20.510 How is the court involved in child placements?
20.511 Should permanency plans be developed?
20.512 Can the Bureau/tribal contractors make Indian adoptive 
          placements?
20.513 Should Interstate Compacts be used for the placement of children?
20.514 What assistance can the courts request from social services on 
          behalf of children?
20.515 What is required for case management?
20.516 How are child abuse, neglect or exploitation cases to be handled?

                   Subpart F_Administrative Procedures

20.600 Who can apply for financial assistance or social services?
20.601 How can applications be submitted?
20.602 How does the Bureau verify eligibility for social services?
20.603 How is an application approved or denied?
20.604 How is an applicant or recipient notified that benefits or 
          services are denied or changed?
20.605 What happens when an applicant or recipient appeals a decision 
          under this subpart?
20.606 How is an incorrect payment adjusted or recovered?
20.607 What happens when applicants or recipients knowingly and 
          willfully provide false or fraudulent information?

                     Subpart G_Hearings and Appeals

20.700 Can an applicant or recipient appeal the decision of a Bureau 
          official?
20.701 Does a recipient receive financial assistance while an appeal is 
          pending?
20.702 When is an appeal hearing scheduled?
20.703 What must the written notice of hearing include?
20.704 Who conducts the hearing or appeal of a Bureau decision or action 
          and what is the process?
20.705 Can an applicant or recipient appeal a tribal decision?

    Authority: 25 U.S.C. 13; Pub. L. 93-638; Pub. L. 98-473; Pub. L. 
102-477; Pub. L. 104-193; Pub. L. 105-83.

    Source: 65 FR 63159, Oct. 20, 2000, unless otherwise noted.



                Subpart A_Definitions, Purpose and Policy



Sec. 20.100  What definitions clarify the meaning of the provisions

of this part?

    Adult means an Indian person age 18 or older.
    Adult care assistance means financial assistance provided on behalf 
of an Indian adult who is not eligible for any other state, federal, or 
tribal assistance as documented in the case file and who requires non-
medical personal care and supervision due to advanced age, infirmity, 
physical condition or mental impairment.
    Appeal means a written request for correction of an action or 
decision of a specific program decision by a Bureau

[[Page 77]]

official (Sec. 20.700) or a tribal official (Sec. 20.705).
    Applicant means an Indian individual by or on whose behalf an 
application for financial assistance and/or social services has been 
made under this part.
    Application means the written or oral process through which a 
request is made for financial assistance or social services.
    Assistant Secretary means the Assistant Secretary--Indian Affairs.
    Authorized representative means a parent or other caretaker 
relative, conservator, legal guardian, foster parent, attorney, 
paralegal acting under the supervision of an attorney, friend or other 
spokesperson duly authorized and acting on behalf or representing the 
applicant or recipient.
    Bureau means the Bureau of Indian Affairs of the United States 
Department of the Interior.
    Bureau Standard of Assistance means payment standards established by 
the Assistant Secretary for burial, disaster, emergency, TWEP and 
adoption and guardian subsidy. In accordance with Public Law 104-193, 
the Bureau standard of assistance for general assistance is the state 
rate for TANF in the state where the applicant resides. Where the Bureau 
provides general assistance on a reservation that extends into another 
state, the Bureau will provide general assistance to eligible Indians 
based on the standard of assistance where the applicant resides if the 
applicant is not eligible for state general assistance or TANF. The 
Bureau standard of assistance for adult care assistance is the state 
rate for adult care assistance in the state where the applicant resides. 
The Bureau standard of assistance for foster care is the state rate for 
foster care in the state where the applicant resides as provided by 
Title IV of the Social Security Act (49 Stat. 620).
    Burial assistance means a financial assistance payment made on 
behalf of an indigent Indian who meets the eligibility criteria to 
provide minimum burial expenses according to Bureau payment standards 
established by the Assistant Secretary.
    Case means a single type of assistance and/or service provided to an 
individual or household in response to an identified need which requires 
intervention by social services.
    Case management means the activity of a social services worker in 
assessing client and family problem(s), case planning, coordinating and 
linking services for clients, monitoring service provisions and client 
progress, advocacy, tracking and evaluating services provided, such as 
evaluation of child's treatment being concurrent with parent's 
treatment, and provision of aftercare service. Activities may also 
include resource development and providing other direct services such as 
accountability of funds, data collection, reporting requirements, and 
documenting activities in the case file.
    Case plan means a written plan with time limited goals which is 
developed and signed by the service recipient and social services 
worker. The case plan will include documentation of referral and 
disapproval of eligibility for other services. The plan must incorporate 
the steps needed to assist individuals and families to resolve social, 
economic, psychological, interpersonal, and/or other problems, to 
achieve self-sufficiency and independence. All plans for children in 
foster care or residential care must include a permanency plan which 
contains a time specific goal of the return of the child to the natural 
parents or initiation of a guardianship/adoption.
    Child means an Indian person under the age of 18 except that no 
person who has been emancipated by marriage will be deemed a child.
    Child assistance means financial assistance provided on behalf of an 
Indian child, who has special needs as specified in Sec. 20.100. In 
addition, assistance includes services to a child who requires placement 
in a foster home or a residential care facility in accordance with 
standards of payment levels established by the state or county in which 
the child resides. Further, assistance includes services to a child in 
need of adoption or guardianship in accordance with payment levels 
established by the Assistant Secretary.
    Designated representative means an official of the Bureau who is 
designated by a Superintendent to hold a hearing as prescribed in 
Sec. Sec. 20.700 through 20.705 and who has had no prior involvement

[[Page 78]]

in the proposed decision under Sec. 20.603 and whose hearing decision 
under Sec. Sec. 20.700 through 20.705 will have the same force and 
effect as if rendered by the Superintendent.
    Disaster means a situation where a tribal community is adversely 
affected by a natural disaster or other forces which pose a threat to 
life, safety, or health as specified in Sec. Sec. 20.327 and 20.328.
    Emergency means a situation where an individual or family's home and 
personal possessions are either destroyed or damaged through forces 
beyond their control as specified in Sec. 20.329.
    Employable means an eligible Indian person who is physically and 
mentally able to obtain employment, and who is not exempt from seeking 
employment in accordance with the criteria specified in Sec. 20.315.
    Essential needs means shelter, food, clothing and utilities, as 
included in the standard of assistance in the state where the eligible 
applicant lives.
    Extended family means persons related by blood, marriage or as 
defined by tribal law or custom.
    Family assessment means a social services assessment of a family's 
history and present abilities and resources to provide the necessary 
care, guidance and supervision for individuals within the family's 
current living situation who may need social service assistance and/or 
services.
    Financial Assistance means any of the following forms of assistance 
not provided by other federal, state, local or tribal sources:
    (1) Adult Care Assistance for adults who require non-medical 
personal care and supervision;
    (2) Burial Assistance for indigent burials;
    (3) Child Assistance for any child with special needs, in need of 
placement in a foster home or residential care facility, or in need of 
adoption or guardianship;
    (4) Disaster Assistance;
    (5) Emergency Assistance for essential needs to prevent hardship 
caused by burnout, flooding of homes, or other life threatening 
situations that may cause loss or damage of personal possessions;
    (6) General Assistance for basic essential needs; or
    (7) Tribal Work Experience Program for participants in work 
experience and training.
    Foster care services means those social services provided to an 
eligible Indian child that is removed from his or her home due to 
neglect, abandonment, abuse or other maltreatment and placed in a foster 
home. Services must also be extended to the affected family members and 
foster parent(s) with a goal of reuniting and preserving the family.
    General Assistance means financial assistance payments to an 
eligible Indian for essential needs provided under Sec. Sec. 20.300 
through 20.319.
    Guardianship means long-term, social services and court approved 
placement of a child.
    Head of household means a person in the household that has primary 
responsibility and/or obligation for the financial support of others in 
the household. In the case of a two parent household, one will be 
considered the head of household for the purpose of making an 
application for benefits.
    Homemaker services means non-medical services provided by social 
services, in the absence of other resources, to assist an eligible 
Indian in maintaining self-sufficiency, and preventing placement into 
foster care or residential care. Examples of services included in 
homemaker services are: cleaning an individual's home, preparing meals 
for an individual, and maintaining or performing basic household 
functions.
    Household means persons living together who may or may not be 
related to the ``head of household.''
    Indian means:
    (1) Any person who is a member of an Indian tribe; or
    (2) In the Alaska service area only, any person who meets the 
definition of ``Native'' as defined under 43 U.S.C. 1602(b): ``A citizen 
of the United States and one-fourth degree or more Alaska Indian 
(including Tsimshian Indians not enrolled in the Metlakatla Indian 
Community) Eskimo, or Aleut blood, or combination thereof. The term 
includes any Native as so defined either or both of whose adoptive 
parents are

[[Page 79]]

not Natives. It also includes, in the absence of proof of a minimum 
blood quantum, any citizen of the United States who is regarded as an 
Alaska Native by the Native village or Native group of which he claims 
to be a member and whose father or mother is (or, if deceased, was) 
regarded as Native by any village or group. Any decision of the 
Secretary regarding eligibility for enrollment shall be final.''
    Indian court means Indian tribal court or Court of Indian Offenses.
    Indian tribe means an Indian or Alaska Native tribe, band, nation, 
pueblo, village, or community which is recognized as eligible for the 
special programs and services provided by the United States because of 
their status as Indians.
    Individual Self-sufficiency Plan (ISP) means a plan designed to meet 
the goal of employment through specific action steps and is incorporated 
within the case plan for the general assistance recipient. The plan is 
jointly developed and signed by the recipient and social services 
worker.
    Near Reservation means those areas or communities designated by the 
Assistant Secretary that are adjacent or contiguous to reservations 
where financial assistance and social service programs are provided.
    Need means the deficit after consideration of income and other 
resources necessary to meet the cost of essential need items and special 
need items as defined by the Bureau standard of assistance for the state 
in which the applicant or recipient resides.
    Permanency plan means the documentation in a case plan which 
provides for permanent living alternatives for the child in foster care, 
a residential care facility, or in need of adoption or guardianship. 
Permanency plans are developed and implemented in accordance with 
tribal, cultural, and tribal/state legal standards when the parent or 
guardian is unable to resolve the issues that require out-of-home 
placement of the child.
    Protective services means those services necessary to protect an 
Indian who is the victim of an alleged and/or substantiated incident of 
abuse, neglect or exploitation or who is under the supervision of the 
Bureau in regard to the use and disbursement of funds in his or her 
Individual Indian Money (IIM) account.
    Public assistance means those programs of financial assistance 
provided by state, tribal, county, local and federal organizations 
including programs under Title IV of the Social Security Act (49 Stat. 
620), as amended, and Public Law 104-193.
    Recipient is an eligible Indian receiving financial assistance or 
social services under this part.
    Recurring income means any cash or in-kind payment, earned or 
unearned, received on a monthly, quarterly, semiannual, or annual basis.
    Regional Director means the Bureau official in charge of a Regional 
Office.
    Reservation means any federally recognized Indian tribe's 
reservation, pueblo, or colony, including Alaska Native regions 
established pursuant to the Alaska Native Claims Settlement Act (85 
Stat. 688).
    Residential care services means those rehabilitation services 
provided to an eligible Indian child that is removed from his or her 
home due to lack of resources in the home to care for him or her and 
placed in a residential care facility.
    Resources means income, both earned and unearned, and other liquid 
assets available to an Indian person or household to meet current living 
costs, unless otherwise specifically excluded by federal statute. Liquid 
assets are those properties in the form of cash or other financial 
instruments which can be converted to cash, such as savings or checking 
accounts, promissory notes, mortgages and similar properties, and 
retirements and annuities.
    Secretary means the Secretary of the Interior.
    Service area means a geographic area designated by the Assistant 
Secretary where financial assistance and social services programs are 
provided. Such a geographic area designation can include a reservation, 
near reservation, or other geographic location. ``The Assistant 
Secretary has designated the entire State of Alaska as a service area.''
    Services to children, elderly and families means social services, 
including protective services provided through the

[[Page 80]]

social work skills of casework, group work or community development to 
assist in solving social problems involving children, elderly and 
families. These services do not include money payments.
    Special needs means a financial assistance payment made to or on 
behalf of children under social services supervision for circumstances 
that warrant financial assistance that is not included in the foster 
care rates; for example, respite care, homemaker service, day care 
service, and may include basic needs (special diets) which are not 
considered as a medical need where other resources are not available.
    Superintendent means the Bureau official in charge of an agency 
office.
    Supplemental Security Income (SSI) means cash assistance provided 
under Title XVI of the Social Security Act (49 Stat. 620), as amended.
    Temporary Assistance for Needy Families (TANF) means one of the 
programs of financial assistance provided under the Personal 
Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA).
    Tribal governing body means the federally recognized governing body 
of an Indian tribe.
    Tribal redesign plan means a tribally designed method for changing 
general assistance eligibility and/or payment levels in accordance with 
25 U.S.C.A. Sec. 13d-3.
    Tribal Work Experience Program (TWEP) means a program operated by 
tribal contract/grant or self-governance annual funding agreement, which 
provides eligible participants with work experience and training that 
promotes and preserves work habits and develops work skills aimed toward 
self-sufficiency. The Bureau payment standard is established by the 
Assistant Secretary.
    Unemployable means a person who meets the criteria specified in 
Sec. 20.315.

[65 FR 63159, Oct. 20, 2000; 65 FR 76563, Dec. 7, 2000, as amended at 66 
FR 15030, Mar. 15, 2001]



Sec. 20.101  What is the purpose of this part?

    The regulations in this part govern the provision to eligible 
Indians of the following kinds of financial assistance and social 
services:
    (a) Adult Care Assistance;
    (b) Burial Assistance;
    (c) Child Assistance;
    (d) Disaster Assistance;
    (e) Emergency Assistance;
    (f) General Assistance;
    (g) Services to Children, Elderly and Families; and
    (h) Tribal Work Experience Program.



Sec. 20.102  What is the Bureau's policy in providing financial 

assistance and social services under this part?

    (a) Bureau social services programs are a secondary, or residual 
resource, and must not be used to supplement or supplant other programs.
    (b) The Bureau can provide assistance under this part to eligible 
Indians when comparable financial assistance or social services are 
either not available or not provided by state, tribal, county, local or 
other federal agencies.
    (c) Bureau financial assistance and social services are subject to 
annual Congressional appropriations.



Sec. 20.103  Have the information collection requirements in this part

been approved by the Office of Management and Budget?

    The information collection requirements contained in Sec. Sec. 
20.300, 20.400, and 20.500 were submitted for clearance to the Office of 
Management and Budget under 44 U.S.C. 35d et seq. This information 
collection was approved by OMB with OMB Control 1076-0017. The 
expiration date is on the form. The information is collected to 
determine applicant eligibility for services. The information will be 
used to determine applicant eligibility and to insure uniformity of 
services. Response is required to obtain a benefit. The public reporting 
burdens for this form are estimated to average 15 minutes per response 
including time for reviewing the instructions, gathering and maintaining 
data, and completing and reviewing the form.



                        Subpart B_Welfare Reform



Sec. 20.200  What contact will the Bureau maintain with State, tribal,

county, local, and other Federal agency programs?

    We will coordinate all financial assistance and social services 
programs

[[Page 81]]

with state, tribal, county, local and other federal agency programs to 
ensure that the financial assistance and social services program avoids 
duplication of assistance.



Sec. 20.201  How does the Bureau designate a service area and what 

information is required?

    The Assistant Secretary can designate or modify service areas for a 
tribe. If you are a tribe requesting a service area designation, you 
must submit each of the following:
    (a) A tribal resolution that certifies that:
    (1) All eligible Indians residing within the service area will be 
served; and
    (2) The proposed service area will not include counties or parts 
thereof that have reasonably available comparable services.
    (b) Additional documentation showing that:
    (1) The area is administratively feasible (that is, an adequate 
level of services can be provided to the eligible Indians residing in 
the area.);
    (2) No duplication of services exists; and
    (3) A plan describing how services will be provided to all eligible 
Indians can be implemented.
    (c) Documentation should be sent to the Regional Director or Office 
of Self-Governance.
    The Director or office will evaluate the information and make 
recommendations to the Assistant Secretary. The Assistant Secretary can 
make a determination to approve or disapprove and publish notice of the 
designation of service area and the Indians to be served in the Federal 
Register. Tribes currently providing services are not required to 
request designation for service areas unless they make a decision to 
modify their existing service areas.



Sec. 20.202  What is a tribal redesign plan?

    If you are a tribe administering a general assistance program, you 
can develop and submit to us a tribal redesign plan to change the way 
that you administer the program.
    (a) A tribal redesign plan allows a tribe to:
    (1) Change eligibility for general assistance in the service area; 
or
    (2) Change the amount of general assistance payments for individuals 
within the service area.
    (b) If you develop a tribal redesign plan it must:
    (1) Treat all persons in the same situation equally; and
    (2) Will not result in additional expenses for the Bureau solely 
because of any increased level of payments.



Sec. 20.203  Can a tribe incorporate assistance from other sources 

into a tribal redesign plan?

    Yes, when a tribe redesigns its general assistance program, it may 
include assistance from other sources (such as Public Law 102-477 
federal funding sources) in the plan.



Sec. 20.204  Must all tribes submit a tribal redesign plan?

    No, you must submit a tribal redesign plan under Sec. 20.206 only 
if you want to change the way that the General Assistance program 
operates in your service area.



Sec. 20.205  Can tribes change eligibility criteria or levels of 

payments for General Assistance?

    Yes, if you have a redesign plan, you can change eligibility 
criteria or levels of payment for general assistance.
    (a) The funding level for your redesigned general assistance program 
will be the same funding received in the most recent fiscal or calendar 
year, whichever applies.
    (b) If you do not have a prior year level of funding, the Bureau or 
Office of Self-Governance will establish a tentative funding level based 
upon best estimates for caseload and expenditures.
    (c) A Bureau servicing office can administer a tribal redesign plan 
as requested by a tribal resolution.



Sec. 20.206  Must a tribe get approval for a tribal redesign plan?

    If you have a Public Law 93-638 contract or receive direct services 
from us, you must obtain our approval before implementing a redesign 
plan. You can apply for approval to the Regional Director through the 
Bureau servicing office.

[[Page 82]]

    (a) You must submit your redesign plan for approval at least 3 
months before the effective date.
    (b) If you operate with a self-governance annual funding agreement, 
you must obtain the approval of the redesign from the Office of Self-
Governance.
    (c) If you operate with a Public Law 102-477 grant, you must obtain 
approval from the Bureau Central Office.

[65 FR 63159, Oct. 20, 2000; 65 FR 76563, Dec. 7, 2000]



Sec. 20.207  Can a tribe use savings from a tribal redesign plan to

meet other priorities of the tribe?

    Yes, you may use savings from a redesign of the general assistance 
program to meet other priorities.



Sec. 20.208  What if the tribal redesign plan leads to increased costs?

    The tribe must meet any increase in cost to the General Assistance 
program that results solely from tribally increased payment levels due 
to a redesign plan.



Sec. 20.209  Can a tribe operating under a tribal redesign plan go 

back to operating under this part?

    Yes, a tribe operating under a tribal redesign plan can choose to 
return to operation of the program as provided in Sec. Sec. 20.300 
through 20.323.



Sec. 20.210  Can eligibility criteria or payments for Burial 

Assistance, Child Assistance, and Disaster Assistance and Emergency 
Assistance change?

    No, unless otherwise provided by law, the Bureau nor a tribe may 
change eligibility criteria or levels of payment for Burial Assistance, 
Child Assistance, Disaster Assistance, and Emergency Assistance awarded 
in Public Law 93-638 contracts, Public Law 102-477 grants, or Public Law 
103-413 self-governance annual funding agreements.



                       Subpart C_Direct Assistance

                    Eligibility for Direct Assistance



Sec. 20.300  Who qualifies for Direct Assistance under this subpart?

    To be eligible for assistance or services under this part, an 
applicant must meet all of the following criteria:
    (a) Meet the definition of Indian as defined in this part;
    (b) Not have sufficient resources to meet the essential need items 
defined by the Bureau standard of assistance for those Bureau programs 
providing financial payment;
    (c) Reside in the service area as defined in Sec. 20.100; and
    (d) Meet the additional eligibility criteria for each of the 
specific programs of financial assistance or social services in 
Sec. Sec. 20.301 through 20.516.

[65 FR 63159, Oct. 20, 2000, as amended at 66 FR 15030, Mar. 15, 2001]



Sec. 20.301  What is the goal of General Assistance?

    The goal of the General Assistance program is to increase self-
sufficiency. Each General Assistance recipient must work with the social 
services worker to develop and sign an Individual Self-Sufficiency Plan 
(ISP). The plan must outline the specific steps the individual will take 
to increase independence by meeting the goal of employment.



Sec. 20.302  Are Indian applicants required to seek assistance through 

Temporary Assistance for Needy Families?

    Yes, all Indian applicants with dependent children are required to 
apply for Temporary Assistance for Needy Families (TANF) and follow TANF 
regulations.



Sec. 20.303  When is an applicant eligible for General Assistance?

    To be eligible for General Assistance an applicant must:
    (a) Meet the criteria contained in Sec. 20.300;
    (b) Apply concurrently for financial assistance from other state, 
tribal, county, local, or other federal agency programs for which he/she 
is eligible;

[[Page 83]]

    (c) Not receive any comparable public assistance; and
    (d) Develop and sign an employment strategy in the ISP with the 
assistance of the social services worker to meet the goal of employment 
through specific action steps including job readiness and job search 
activities.



Sec. 20.304  When will the Bureau review eligibility for General

Assistance?

    The Bureau will review eligibility for General Assistance:
    (a) Every 3 months for individuals who are not exempt from seeking 
or accepting employment in accordance with Sec. 20.315 or the ISP;
    (b) Every 6 months for all recipients; and
    (c) Whenever there is a change in status that can affect a 
recipient's eligibility or amount of assistance. Recipients must 
immediately inform the social services office of any such changes.



Sec. 20.305  What is redetermination?

    Redetermination is an evaluation by a social services worker to 
assess the need for continued financial assistance as outlined in Sec. 
20.304. It includes:
    (a) A home visit;
    (b) An estimate of income, living circumstances, household 
composition for the month(s) for which financial assistance is to be 
provided; and
    (c) Appropriate revisions to the case plan and the ISP.



Sec. 20.306  What is the payment standard for General Assistance?

    (a) Under Public Law 104-193, the Bureau must use the same TANF 
payment standard (and any associated rateable reduction) that exists in 
the state or service area where the applicant or recipient resides. This 
payment standard is the amount from which the Bureau subtracts net 
income and resources to determine General Assistance eligibility and 
payment levels;
    (b) If the state does not have a standard for an adult, we will use 
either the difference between the standard for a child and the standard 
for a household of two, or one-half of the standard for a household of 
two, whichever is greater; and
    (c) If the state does not have a TANF program, we will use the AFDC 
payment standard which was in effect on September 30, 1995, in the State 
where the applicant or recipient resides.

                       Determining Need and Income



Sec. 20.307  What resources does the Bureau consider when determining 

need?

    When the Bureau determines General Assistance eligibility and 
payment levels, we consider income and other resources as specified in 
Sec. Sec. 20.308 and 20.309.
    (a) All income, earned or unearned, must be calculated in the month 
it is received and as a resource thereafter, except that certain income 
obtained from the sale of real or personal property may be exempt as 
provided in Sec. 20.309.
    (b) Resources are considered to be available when they are converted 
to cash.



Sec. 20.308  What does earned income include?

    Earned income is cash or any in-kind payment earned in the form of 
wages, salary, commissions, or profit, from activities by an employee or 
self-employed individual. Earned income includes:
    (a) Any one-time payment to an individual for activities which were 
sustained over a period of time (for example, the sale of farm crops, 
livestock, or professional artists producing art work); and
    (b) With regard to self-employment, total profit from a business 
enterprise (i.e., gross receipts less expenses incurred in producing the 
goods or services). Business expenses do not include depreciation, 
personal business and entertainment expenses, personal transportation, 
capital equipment purchases, or principal payments on loans for capital 
assets or durable goods.



Sec. 20.309  What does unearned income include?

    Unearned income includes, but is not limited to:
    (a) Income from interest; oil and gas and other mineral royalties; 
gaming income per capita distributions; rental property; cash 
contributions, such as child support and alimony, gaming winnings; 
retirement benefits;

[[Page 84]]

    (b) Annuities, veteran's disability, unemployment benefits, and 
federal and state tax refunds;
    (c) Per capita payments not excluded by federal statute;
    (d) Income from sale of trust land and real or personal property 
that is set aside for reinvestment in trust land or a primary residence, 
but has not been reinvested in trust land or a primary residence at the 
end of one year from the date the income was received;
    (e) In-kind contributions providing shelter at no cost to the 
individual or household, this must equal the amount for shelter included 
in the state standard, or 25 percent of the state standard, whichever is 
less; and
    (f) Financial assistance provided by a state, tribal, county, local, 
or other federal agency.



Sec. 20.310  What recurring income must be prorated?

    The social services worker will prorate the following recurring 
income:
    (a) Recurring income received by individuals over a 12-month period 
for less than a full year's employment (for example, income earned by 
teachers who are not employed for a full year);
    (b) Income received by individuals employed on a contractual basis 
over the term of a contract; and
    (c) Intermittent income received quarterly, semiannually, or yearly 
over the period covered by the income.



Sec. 20.311  What amounts will the Bureau deduct from earned income?

    (a) The social services worker will deduct the following amounts 
from earned income:
    (1) Other federal, state, and local taxes;
    (2) Social Security (FICA);
    (3) Health insurance;
    (4) Work related expenses, including reasonable transportation 
costs;
    (5) Child care costs for children under the age of 6 except where 
the other parent in the home is unemployed and physically able to care 
for the children; and
    (6) The cost of special clothing, tools, and equipment directly 
related to the individual's employment.
    (b) For self-employed individuals, the social services worker will 
deduct the costs of conducting business and all of the amounts in 
paragraph (a) of this section.



Sec. 20.312  What amounts will the Bureau deduct from income or other

resources?

    The social services worker will deduct the following amounts from 
income, or other resources:
    (a) The first $2,000 of liquid resources annually available to the 
household;
    (b) Any home produce from a garden, livestock, and poultry used by 
the applicant or recipient and his/her household for their consumption; 
and
    (c) Resources specifically excluded by federal statute.



Sec. 20.313  How will the Bureau compute financial assistance payments?

    (a) The social services worker will compute financial assistance 
payments by beginning with the Bureau standard of assistance and doing 
the following:
    (1) Subtracting from all resources calculated under Sec. Sec. 
20.307 through 20.310;
    (2) Subtracting the rateable reduction or maximum payment level used 
by the state where the applicant lives;
    (3) Subtracting an amount for shelter (see paragraph (b) of this 
section for details on how to calculate a shelter amount); and
    (4) Rounding the result down to the next lowest dollar.
    (b) The social services worker must calculate a shelter amount for 
purposes of paragraph (a)(3) of this section. To calculate the shelter 
amount:
    (1) The shelter amount must not exceed the amount for shelter in the 
state TANF standard;
    (2) If the state TANF does not specify an amount for shelter, the 
social services worker must calculate the amount as 25 percent of the 
total state TANF payment; and
    (3) If there is more than one household in a dwelling, the social 
services worker must prorate the actual shelter cost among the 
households receiving General Assistance; this amount cannot exceed the 
amount in the standard for individuals in similar circumstances. The 
head of each household is responsible for his/her portion of the 
documented shelter cost.

[[Page 85]]

    (c) The social services worker must not provide General Assistance 
payments for any period before the date of the application for 
assistance.

                         Employment Requirements



Sec. 20.314  What is the policy on employment?

    (a) An applicant or recipient must:
    (1) Actively seek employment, including the use of available state, 
tribal, county, local or Bureau-funded employment services;
    (2) Make satisfactory progress in an ISP; and
    (3) Accept local and seasonable employment when it is available.
    (b) A head of household who does not comply with this section will 
not be eligible for General Assistance for a period of at least 60 days 
but not more than 90 days. This action must be documented in the case 
file.
    (c) The policy in this section does not apply to any person meeting 
the criteria in Sec. 20.315.



Sec. 20.315  Who is not covered by the employment policy?

    The employment policy in Sec. 20.314 does not apply to the persons 
shown in the following table.

------------------------------------------------------------------------
  The employment policy in
Sec.  20.314 does not apply        if . . .              and . . .
          to . . .
------------------------------------------------------------------------
(a) Anyone younger than 16..
------------------------------------------------------------------------
(b) A full-student under the  He/she is attending   He/she is making
 age of 19.                    an elementary or      satisfactory
                               secondary school or   progress.
                               a vocational or
                               technical school
                               equivalent to a
                               secondary school.
------------------------------------------------------------------------
(c) A person enrolled at      He/she is making      He/she was an active
 least half-time in a          satisfactory          General Assistance
 program of study under        progress.             recipient for a
 Section 5404 of Pub. L. 100-                        minimum of 3 months
 297.                                                before
                                                     determination/
                                                     redetermination of
                                                     eligibility.
------------------------------------------------------------------------
(d) A person suffering from   It is documented in   He/she must be
 a temporary medical injury    the case plan that    referred to SSI if
 or illness.                   the illness or        the disability
                               injury is serious     status exceeds 3
                               enough to             months.
                               temporarily prevent
                               employment.
------------------------------------------------------------------------
(e) An incapacitated person   A physician,          The assessment is
 who has not yet received      psychologist, or      documented in the
 Supplemental Security         social services       case plan.
 Income (SSI) assistance.      worker certifies
                               that a physical or
                               mental impairment
                               (either by itself,
                               or in conjunction
                               with age) prevents
                               the individual from
                               being employed.
------------------------------------------------------------------------
(f) A caretaker who is        A physician or        The case plan
 responsible for a person in   certified             documents that: the
 the home who has a physical   psychologist          condition requires
 or mental impairment.         verifies the          the caretaker to be
                               condition.            home on a virtually
                                                     continuous basis;
                                                     and there is no
                                                     other appropriate
                                                     household member
                                                     available to
                                                     provide this care.
------------------------------------------------------------------------
(g) A parent or other         He/she personally
 individual who does not       provides full-time
 have access to child care.    care to a child
                               under the age of 6.
------------------------------------------------------------------------
(h) A person for whom         There is a minimum
 employment is not             commuting time of
 accessible.                   one hour each way.
------------------------------------------------------------------------



Sec. 20.316  What must a person covered by the employment policy do?

    (a) If you are covered by the employment policy in Sec. 20.314, you 
must seek employment and provide evidence of your monthly efforts to 
obtain employment in accordance with your ISP.
    (b) If you do not seek and accept available local and seasonal 
employment, or you quit a job without good cause, you cannot receive 
General Assistance for a period of at least 60 days but not more than 90 
days after you refuse or quit a job.

[[Page 86]]



Sec. 20.317  How will the ineligibility period be implemented?

    (a) If you refuse or quit a job, your ineligibility period will 
continue as provided in Sec. 20.316(b) until you seek and accept 
appropriate available local and seasonal employment and fulfill your 
obligations already agreed to in the ISP;
    (b) The Bureau will reduce your suspension period by 30 days when 
you show that you have sought local and seasonal employment in 
accordance with the ISP; and
    (c) Your eligibility suspension will affect only you. The Bureau 
will not apply it to other eligible members of the household.



Sec. 20.318  What case management responsibilities does the social 

services worker have?

    In working with each recipient, you, the social services worker 
must:
    (a) Assess the general employability of the recipient;
    (b) Assist the recipient in the development of the ISP;
    (c) Sign the ISP;
    (d) Help the recipient identify the service(s) needed to meet the 
goals identified in their ISP;
    (e) Monitor recipient participation in work related training and 
other employment assistance programs; and
    (f) Document activities in the case file.



Sec. 20.319  What responsibilities does the general assistance 

recipient have?

    In working with the social services worker, you, the recipient, 
must:
    (a) Participate with the social services worker in developing an ISP 
and sign the ISP;
    (b) Perform successfully in the work related activities, community 
service, training and/or other employment assistance programs developed 
in the ISP;
    (c) Participate successfully in treatment and counseling services 
identified in the ISP;
    (d) Participate in evaluations of job readiness and/or any other 
testing required for employment purposes; and
    (e) Demonstrate that you are actively seeking employment by 
providing the social services worker with evidence of job search 
activities as required in the ISP.

                  Tribal Work Experience Program (TWEP)



Sec. 20.320  What is TWEP?

    TWEP is a program that provides work experience and job skills to 
enhance potential job placement for the general assistance recipient. 
TWEP programs can be incorporated within Public Law 93-638 self-
determination contracts, Public Law 102-477 grants, and Public Law 103-
413 self-governance annual funding agreements at the request of the 
tribe.



Sec. 20.321  Does TWEP allow an incentive payment?

    Yes, incentive payments to participants are allowed under TWEP.
    (a) Incentive payments are separate. The Bureau will not consider 
incentive payments as wages or work related expenses, but as grant 
assistance payments under Sec. Sec. 20.320 through 20.323.
    (b) The approved payment will not exceed the Bureau maximum TWEP 
payment standard established by the Assistant Secretary.



Sec. 20.322  Who can receive a TWEP incentive payment?

    (a) The head of the family unit normally receives the TWEP 
assistance payment.
    (b) The social services worker can designate a spouse or other adult 
in the assistance group to receive the TWEP assistance payment. The 
social services worker will do this only if:
    (1) The recognized head of the family unit is certified as 
unemployable; and
    (2) The designation is consistent with the ISP.
    (c) Where there are multiple family units in one household, one 
member of each family unit will be eligible to receive the TWEP 
incentive payment.



Sec. 20.323  Will the local TWEP be required to have written program 

procedures?

    Yes, the local TWEP must have specific written program procedures 
that cover hours of work, acceptable reasons for granting leave from 
work, evaluation criteria and monitoring

[[Page 87]]

plans and ISP's for participants. Work readiness progress must be 
documented in each ISP.

                            Burial Assistance



Sec. 20.324  When can the Bureau provide Burial Assistance?

    In the absence of other resources, the Bureau can provide Burial 
Assistance for eligible indigent Indians meeting the requirements 
prescribed in Sec. 20.300.



Sec. 20.325  Who can apply for Burial Assistance?

    If you are a relative of a deceased Indian, you can apply for burial 
assistance for the deceased Indian under this section.
    (a) To apply for burial assistance under this section, you must 
submit the application to the social services worker. You must submit 
this application within 30 days following death.
    (b) The Bureau will determine eligibility based on the income and 
resources available to the deceased in accordance with Sec. 20.100. 
This includes but is not limited to SSI, veterans' death benefits, 
social security, and Individual Indian Money (IIM) accounts. 
Determination of need will be accomplished on a case-by-case basis using 
the Bureau payment standard.
    (c) The Bureau will not approve an application unless it meets the 
criteria specified at Sec. 20.300.
    (d) The approved payment will not exceed the Bureau maximum burial 
payment standard established by the Assistant Secretary.



Sec. 20.326  Does Burial Assistance cover transportation costs?

    Transportation costs directly associated with burials are normally a 
part of the established burial rate. If a provider adds an additional 
transportation charge to the burial rate because of extenuating 
circumstances, the social services worker can pay the added charge. To 
do this, the social services worker must ensure and document in the case 
plan that:
    (a) The charges are reasonable and equitable;
    (b) The deceased was an eligible indigent Indian who was socially, 
culturally, and economically affiliated with his or her tribe; and
    (c) The deceased resided in the service area for at least the last 6 
consecutive months of his/her life.

                           Disaster Assistance



Sec. 20.327  When can the Bureau provide Disaster Assistance?

    Disaster assistance is immediate and/or short-term relief from a 
disaster and can be provided to a tribal community in accordance with 
Sec. 20.328.



Sec. 20.328  How can a tribe apply for Disaster Assistance?

    (a) The tribe affected by the disaster is considered the applicant 
and must submit the following to the Regional Director through the local 
Superintendent:
    (1) A tribal resolution requesting disaster assistance;
    (2) A copy of county, state, or Presidential declaration of 
disaster; and
    (3) The projected extent of need in the service area not covered by 
other federal funding sources.
    (b) The Regional Director must forward the above tribal documents 
and his/her recommendation to the Assistant Secretary for final decision 
on whether disaster assistance will be provided and to what extent.

                          Emergency Assistance



Sec. 20.329  When can the Bureau provide Emergency Assistance payments?

    Emergency Assistance payments can be provided to individuals or 
families who suffer from a burnout, flood, or other destruction of their 
home and loss or damage to personal possessions. The Bureau will make 
payments only for essential needs and other non-medical necessities.



Sec. 20.330  What is the payment standard for Emergency Assistance?

    The approved payment will not exceed the Bureau's maximum Emergency 
Assistance payment standard established by the Assistant Secretary.

[[Page 88]]

                          Adult Care Assistance



Sec. 20.331  What is Adult Care Assistance?

    Adult care assistance provides non-medical care for eligible adult 
Indians who:
    (a) Have needs that require personal care and supervision due to 
advanced age, infirmity, physical condition, or mental impairments; and
    (b) Cannot be cared for in their own home by family members.



Sec. 20.332  Who can receive Adult Care Assistance?

    An adult Indian is eligible to receive adult care assistance under 
this part if he/she:
    (a) Is unable to meet his/her basic needs, including non-medical 
care and/or protection, with his/her own resources; and
    (b) Does not require intermediate or skilled nursing care.



Sec. 20.333  How do I apply for Adult Care Assistance?

    To apply for adult care assistance, you or someone acting on your 
behalf must submit an application form to the social services worker.



Sec. 20.334  What happens after I apply?

    (a) The Bureau will determine eligibility based upon the income and 
available resources of the person named in the application.
    (b) Upon approval by the Bureau Line Officer, payments will be 
approved under purchase of service agreements for adult care provided in 
state or tribally licensed or certified group settings, or by individual 
service providers licensed or certified for homemaker service.

[65 FR 63159, Oct. 20, 2000; 65 FR 76563, Dec. 7, 2000]



Sec. 20.335  What is the payment standard for Adult Care Assistance?

    The approved payment for adult care assistance will not exceed the 
applicable state payment rate for similar care.

[65 FR 63159, Oct. 20, 2000; 65 FR 76563, Dec. 7, 2000]



          Subpart D_Services to Children, Elderly, and Families



Sec. 20.400  Who should receive Services to Children, Elderly, 

and Families?

    Services to Children, Elderly, and Families will be provided for 
Indians meeting the requirements prescribed in Sec. 20.300 who request 
these services or on whose behalf these services are requested.



Sec. 20.401  What is included under Services to Children, Elderly, 

and Families?

    Services to Children, Elderly, and Families include, but are not 
limited to, the following:
    (a) Assistance in solving problems related to family functioning and 
interpersonal relationships;
    (b) Referral to the appropriate resource for problems related to 
illness, physical or mental handicaps, drug abuse, alcoholism, and 
violation of the law; and
    (c) Protective services.
    In addition, economic opportunity and money management may also be 
provided.



Sec. 20.402  When are protective services provided?

    Protective services are provided when children or adults:
    (a) Are deprived temporarily or permanently of needed supervision by 
responsible adults;
    (b) Are neglected, abused or exploited;
    (c) Need services when they are mentally or physically handicapped 
or otherwise disabled; or
    (d) Are under the supervision of the Bureau in regard to the use and 
disbursement of funds in the child's or adult's Individual Indian Money 
(IIM) account. Those IIM accounts that are established for children will 
be supervised by the Bureau until the child becomes an adult as defined 
in 25 CFR 115.



Sec. 20.403  What do protective services include?

    Protective services provided to a child, family or elderly person 
will be documented in the case files and:

[[Page 89]]

    (a) Can include, but are not limited to, any of the following:
    (1) Providing responses to requests from members of the community on 
behalf of children or adults alleged to need protective services;
    (2) Providing services to children, elderly, and families, including 
referrals for homemaker and day care services for the elderly and 
children;
    (3) Coordinating with Indian courts to provide services, which may 
include, but are not limited to, the following:
    (i) Investigating and reporting on allegations of child abuse and 
neglect, abandonment, and conditions that may require referrals (such as 
mental or physical handicaps);
    (ii) Providing social information related to the disposition of a 
case, including recommendation of alternative resources for treatment; 
and
    (iii) Providing placement services by the court order before and 
after adjudication.
    (4) Coordinating with other community services, including groups, 
agencies, and facilities in the community. Coordination can include, but 
are not limited to:
    (i) Evaluating social conditions that affect community well-being;
    (ii) Treating conditions identified under paragraph (b)(1) of this 
section that are within the competence of social services workers; and
    (iii) Working with other community agencies to identify and help 
clients to use services available for assistance in solving the social 
problems of individuals, families, and children.
    (5) Coordinating with law enforcement and tribal courts, to place 
the victim of an alleged and/or substantiated incident of abuse, neglect 
or exploitation out of the home to assure safety while the allegations 
are being investigated. Social services workers may remove individuals 
in life threatening situations. After a social services assessment, the 
individual must be either returned to the parent(s) or to the home from 
which they were removed or the social services worker must initiate 
other actions as provided by the tribal code; and
    (6) Providing social services in the home, coordinating and making 
referrals to other programs/services, including Child Protection, and/or 
establishing Multi-Disciplinary Teams.
    (b) Must include, where the service population includes IIM account 
holders:
    (1) Conducting, upon the request of an account holder or other 
interested party, a social services assessment to evaluate an adult 
account holder's circumstances and abilities and the extent to which the 
account holder needs assistance in managing his or her financial 
affairs; and
    (2) Managing supervised IIM accounts of children and adults (in 
conjunction with legal guardians), which includes, but is not limited 
to, the following:
    (i) Evaluating the needs of the account holder;
    (ii) Developing, as necessary and as permitted under 25 CFR 115, a 
one-time or an annual distribution plan for funds held in an IIM account 
along with any amendments to the plan for approval by the Bureau;
    (iii) Monitoring the implementation of the approved distribution 
plan to ensure that the funds are expended in accordance with the 
distribution plan;
    (iv) Reviewing the supervised account every 6 months or more often 
as necessary if conditions have changed to warrant a recommendation to 
change the status of the account holder, or to modify the distribution 
plan;
    (v) Reviewing receipts for an account holder's expenses and 
verifying that expenditures of funds from a supervised IIM account were 
made in accordance with the distribution plan approved by the Bureau, 
including any amendments made to the plan; and
    (vi) Petitioning a court of competent jurisdiction for the 
appointment of, or change in, a legal guardian for a client, where 
appropriate.

[65 FR 63159, Oct. 20, 2000; 65 FR 76563, Dec. 7, 2000]



Sec. 20.404  What information is contained in a social services 

assessment?

    A social services assessment must contain, but is not limited to, 
the following:
    (a) Identifying information about the client (for example, name, 
address, age, gender, social security number, telephone number, 
certificate of Indian blood, education level), family history

[[Page 90]]

and medical history of the account holder;
    (b) Description of the household composition: information on each 
member of the household (e.g., name, age, and gender) and that person's 
relationship to the client;
    (c) The client's current resources and future income (e.g., VA 
benefits, retirement pensions, trust assets, employment income, judgment 
funds, general assistance benefits, unemployment benefits, social 
security income, supplemental security income and other governmental 
agency benefits);
    (d) A discussion of the circumstances which justify special 
services, including ability of the client to handle his or her financial 
affairs and to conduct day-to-day living activities. Factors to be 
considered should include, but are not limited to:
    (1) Age;
    (2) Developmental disability;
    (3) Chronic alcoholism or substance abuse;
    (4) Lack of family assistance or social support systems, or 
abandonment;
    (5) Self-neglect;
    (6) Financial exploitation or abuse;
    (7) Physical exploitation, neglect or abuse;
    (8) Senility; and
    (9) Dementia.
    (e) Documentation supporting the need for assistance (e.g., medical 
reports, police reports, court orders, letters from interested parties, 
prior assessments or evaluations, diagnosis by psychologist/
psychiatrist); and
    (f) Summary of findings and proposed services to meet the identified 
needs of the client.



                       Subpart E_Child Assistance



Sec. 20.500  Who is eligible for Child Assistance?

    A child is eligible for Child Assistance under this subpart if all 
of the following criteria are met:
    (a) The child must meet the requirements in Sec. 20.300.
    (b) The child's legally responsible parent, custodian/guardian, or 
Indian court having jurisdiction must:
    (1) Request assistance under this part in writing;
    (2) State that they are unable to provide necessary care and 
guidance for the child, or to provide for the child's special needs in 
his/her own home; and
    (3) Provide a documented social services assessment from the social 
services worker of whether parent(s), custodian, guardian(s) are able to 
care for their child.
    (c) All income accruing to the child, except income exempted by 
federal statute, must be used to meet the cost of special needs, foster 
home or residential care facility as authorized and arranged by social 
services.

                 How Child Assistance Funds Can Be Used



Sec. 20.501  What services can be paid for with Child Assistance funds?

    The social services program can use Child Assistance funds to pay 
for services as shown in the following table.

------------------------------------------------------------------------
                              Conditions that must     Maximum payment
  Service that can be paid           be met                 level
------------------------------------------------------------------------
(a) Room and board at         There must be no      The state or county
 residential care facilities   other resources       residential care
 licensed by the tribe or      available to pay      rate in the state
 state.                        these costs. See      in which the child
                               Sec.  20.502 for     resides.
                               other conditions
                               that must be met.
------------------------------------------------------------------------
(b) Adoption or guardianship  There must be no      The Bureau's maximum
 subsidies.                    other resources       adoption and
                               available to pay      guardianship
                               for this service.     payment standard.
                               See Sec.  20.503
                               for other
                               conditions that
                               must be met.
------------------------------------------------------------------------
(c) Short-term homemaker      There must be no      As approved by the
 services.                     other resources       Bureau line
                               (such as Medicaid)    officer.
                               available to pay
                               for this service.
                               Services can be
                               purchased for a
                               maximum of 3
                               months. See Sec.
                               20.504 for other
                               conditions that
                               must be met.
------------------------------------------------------------------------

[[Page 91]]

 
(d) Temporary foster care...  See Sec.  20.509     The state or county
                               for conditions that   foster care rate in
                               must be met.          the state in which
                                                     the child resides.
------------------------------------------------------------------------



Sec. 20.502  Can Child Assistance funds be used to place Indian 

children in residential care facilities?

    You, the social service program, can use Child Assistance funds to 
purchase or contract for room and board in licensed residential care 
facilities.
    (a) You can use Child Assistance funds to pay only for room and 
board. You must pay for other services that may be needed, including 
mental health, education, and physical therapy from other sources.
    (b) Before placement the various funding sources must sign an 
agreement that specifies the services each source will pay. The Bureau 
Line Officer must approve this agreement.



Sec. 20.503  When can Child Assistance funds be used for Indian

adoption or guardianship subsidies?

    You, the social services program, can use Child Assistance funds to 
provide either adoption or guardianship subsidies if all of the 
following are true:
    (a) The child is 17 or younger;
    (b) The child has been in foster care prior to approval of the 
subsidy;
    (c) The social services worker has considered all other available 
resources, attempted permanency planning, and documented in the case 
file that placement was in the best interest of the child; and
    (d) The Bureau Line Officer approves the subsidy before it is 
authorized and redetermines eligibility on a yearly basis.



Sec. 20.504  What short-term homemaker services can Child 

Assistance pay for?

    You, the social services program, can use Child Assistance funds to 
pay for homemaker services as specified in Sec. 20.501 and this 
section. While housekeeping services are covered, homemaker services 
must focus on training household members in such skills as child care 
and home management. Homemaker services are provided for:
    (a) A child who would otherwise need foster care placement or who 
would benefit from supportive (protective) supervision;
    (b) A severely handicapped or special needs child whose care places 
undue stress on the family; or
    (c) A child whose care would benefit from specialized training and 
supportive services provided to family members.



Sec. 20.505  What services are provided jointly with the Child 

Assistance Program?

    The services listed in this section are provided by Services to 
Children, Elderly, and Families under this subpart jointly with the 
Child Assistance Program.
    (a) Social services provided for children in their own home aimed at 
strengthening the family's ability to provide for and nurture their 
child. These supportive services can include:
    (1) Social work case management;
    (2) Counseling for parents and children;
    (3) Group work, day care; and
    (4) Homemaker services, when necessary.
    (b) Protection of Indian children from abuse, neglect or 
exploitation in coordination with law enforcement and courts.
    (c) A written case plan must be established within 30 days of 
placement and reviewed within 60 days of placement or as outlined in 
tribally established standards, when temporary placement outside the 
home is necessary. The case plan must contain a written agreement signed 
among the various funding sources to identify the services that will be 
paid by each source in those instances where the child requires services 
outside the authority of the Child Assistance program.

                               Foster Care



Sec. 20.506  What information is required in the foster care case file?

    At a minimum the following information is required:

[[Page 92]]

    (a) Tribal enrollment verification in accordance with Sec. 20.100;
    (b) A written case plan (established within 30 days of placement), 
which would include a permanency plan detailing the need for and 
expected length of placement;
    (c) Information on each child's health status and school records, 
including medications and immunization records;
    (d) Parental consent(s) for emergency medical care, school, and 
transportation;
    (e) A signed plan for payment, including financial responsibility of 
parents and use of other appropriate resources;
    (f) A copy of the certification/license of the foster home;
    (g) A current photo of each child;
    (h) A copy of the social security card, birth certificate, Medicaid 
card and current court order;
    (i) For a placement beyond 30 days, copy of the action taken or 
authorized by a court of competent jurisdiction that documents the need 
for protection of the child;
    (j) For an involuntary placement, a social services assessment 
completed by a social services worker within 30 days of placement;
    (k) Documentation of a minimum of one visit to the placement setting 
per month by the social services worker with each child; and
    (l) A list of all prior placements, including the names of the 
foster parents and dates of placements.



Sec. 20.507  What requirements must foster care providers meet?

    If a child needs foster care, the social services worker must select 
care that meets the physical, behavioral, and emotional needs of the 
child. Foster care is intended to be short-term. The case plan must show 
that all of the requirements in paragraphs (a) through (c) of this 
section are met:
    (a) All foster homes must be certified or licensed by the tribe or 
other appropriate authority. Foster care placements beyond 30 days must 
be made through a court of competent jurisdiction to ensure that:
    (1) Federal background checks are completed prior to placement as 
required by Public Law 101-630; and
    (2) Training (optional for placements with relatives) is provided to 
the foster family.
    (b) If the child is placed with relatives in an adoption and 
guardian placement, the case file must contain an approved current home 
study.
    (c) An off-reservation foster home, or residential care facility 
under contract must meet the licensing standards of the state in which 
it is located or tribally established certifying/licensing standards.



Sec. 20.508  What must the social services agency do when a child is

placed in foster care, residential care or guardianship home?

    The social services agency must make efforts to secure child support 
for the child in foster care or residential care through a court of 
competent jurisdiction.



Sec. 20.509  What must the social services worker do when a child is 

placed in foster care or residential care facility?

    When a child is placed in foster care or a residential care facility 
the social services worker must do all of the following:
    (a) Discuss with foster parents or caretakers, the child's special 
needs, including disabilities;
    (b) Provide counseling or referral to available resources;
    (c) Refer any child requiring medical, substance abuse, or 
behavioral (mental) health services to an appropriate health services to 
be assessed and to receive services;
    (d) Ensure that the case plan provides for all necessary costs of 
care (including clothing, incidentals, and personal allowance) in 
accordance with established state standards of payments;
    (e) Develop a foster family agreement signed and dated by the 
parties involved that specifies the roles and responsibilities of the 
biological parents, foster parents, and placing agency; the terms of 
payment of care; and the need for adherence to the established case 
plan;
    (f) Immediately report any occurrences of suspected child abuse or 
neglect in a foster home or residential care facility to law enforcement 
and protective services in accordance with

[[Page 93]]

tribal standards and reporting requirements under Public Law 101-630; 
and
    (g) Complete a yearly assessment of each tribal or state licensed 
foster home or residential care facility evaluating how the home has 
fulfilled its function relative to the needs of the child placed in the 
home.



Sec. 20.510  How is the court involved in child placements?

    The court retains custody of a child in placement and the care and 
supervision must be given to the appropriate social services agency. 
While the court can issue any court order consistent with tribal law, 
the courts do not have the authority to require expenditure of federal 
funds to pay for specifically prescribed or restrictive services or out-
of-home placements of children. Case plans must be reviewed with the 
appropriate court at least every 6 months and a permanency hearing held 
within 12 months after a child enters foster care or residential care, 
or according to established tribal standards. These standards can be 
established in the tribal code and can be in accordance with available 
funding source requirements.



Sec. 20.511  Should permanency plans be developed?

    Permanency planning must be developed for all child placements 
within 6 months after initial placement of the child. Every reasonable 
effort will be made to preserve the family and/or reunify the children 
with the family and relatives when developing permanency plans. However, 
the child's health and safety are the paramount concern.



Sec. 20.512  Can the Bureau/tribal contractors make Indian adoptive 

placements?

    The Bureau is not an authorized adoption agency and staff must not 
arrange adoptive placements. However, long-term permanency planning can 
involve the Bureau social services workers cooperating with tribal 
courts to provide an adoption subsidy. Tribal contractors will provide 
adoption services as authorized by the tribal courts in accordance with 
tribal codes/law.



Sec. 20.513  Should Interstate Compacts be used for the placement of

children?

    Interstate compact agreements should be used when appropriate for 
foster care, adoption and guardianship to protect the best interests of 
the child and to assure the availability of the funding resources and 
services from the originating placement source.



Sec. 20.514  What assistance can the courts request from social 

services on behalf of children?

    The courts can request the following:
    (a) Investigations of law enforcement reports of child abuse and 
neglect;
    (b) Assessment of the need for out-of-home placement of the child; 
and
    (c) Provision of court-related services following adjudication, such 
as monitoring, foster care, or residential care, or pre/post placement 
services.



Sec. 20.515  What is required for case management?

    Social services workers must document regular contact with children 
and families in accordance with specific program requirements. The 
social services agency is responsible for implementation of quality case 
management; this requires the supervisor's review of case plans every 90 
days.



Sec. 20.516  How are child abuse, neglect or exploitation cases to be

handled?

    Reported child abuse, neglect or exploitation cases and the 
requirement for background clearances will be handled in accordance with 
the Indian Child Protection and Family Violence Prevention Act of 1990, 
Public Law 101-630, 25 CFR part 63, federal and/or state laws where 
applicable, and tribal codes which protect Indian children and victims 
of domestic violence. This includes developing and maintaining Child 
Protection Teams in accordance to Public Law 101-630 and collection of 
child abuse, neglect and exploitation data according to Public Law 99-
570. Those cases referred by the state will be handled according to the 
Indian Child Welfare Act, Public Law 95-608, and 25 CFR part 23.

[[Page 94]]



                   Subpart F_Administrative Procedures



Sec. 20.600  Who can apply for financial assistance or social services?

    (a) You can apply for financial assistance or social services under 
this part if you:
    (1) Believe that you are eligible to receive benefits; or
    (2) Are applying on behalf of someone who you believe is eligible to 
receive benefits.
    (b) Under paragraph (a) of this section, any of the following may 
apply for benefits on behalf of another person: relatives, interested 
individuals, social services agencies, law enforcement agencies, courts, 
or other persons or agencies.



Sec. 20.601  How can applications be submitted?

    You can apply for financial assistance or social services under this 
part by:
    (a) Completing an application that you can get from your social 
services worker or tribe; or
    (b) Through an interview with a social services worker who will 
complete an application for you based on the oral interview.



Sec. 20.602  How does the Bureau verify eligibility for social services?

    (a) You, the applicant, are the primary source of information used 
to determine eligibility and need. If it is necessary to secure 
information such as medical records from other sources, you must 
authorize the release of information.
    (b) You must immediately report to your social services worker any 
changes in circumstances that may affect your eligibility or the amount 
of financial assistance that you receive.



Sec. 20.603  How is an application approved or denied?

    (a) Each application must be approved if the applicant meets the 
eligibility criteria in this part for the type of assistance requested 
and all recipients will be redetermined for eligibility every 6 months. 
Financial assistance will be made retroactive to the application date.
    (b) An application must be denied if the applicant does not meet the 
eligibility criteria in Sec. Sec. 20.300 through 20.516.
    (c) The social services worker must approve or deny an application 
within 30 days of the application date. The local social services worker 
must issue written notice of the approval or denial of each application 
within 45 days of the application date.
    (d) If for a good reason the social services worker cannot meet the 
deadline in paragraph (c) of this section, he or she must notify the 
applicant in writing of:
    (1) The reasons why the decision cannot be made; and
    (2) The deadline by which the social services worker will send the 
applicant a decision.

[65 FR 63159, Oct. 20, 2000; 65 FR 76563, Dec. 7, 2000]



Sec. 20.604  How is an applicant or recipient notified that benefits

or services are denied or changed?

    If the Bureau increases, decreases, suspends, or terminates 
financial assistance, the social services worker must mail or hand 
deliver to the applicant or recipient a written notice of the action. 
The notice must:
    (a) State the action taken, the effective date, and the reason(s) 
for the decision;
    (b) Inform the applicant or recipient of the right to request a 
hearing if dissatisfied with the decision;
    (c) Advise the applicant or recipient of the right to be represented 
by an authorized representative at no expense to the Bureau;
    (d) Include the address of the local Superintendent or his/her 
designated representative to whom the request for a hearing must be 
submitted;
    (e) Advise the applicant or recipient that failure to request a 
hearing within 20 days of the date of the notice will cause the decision 
to become final and not subject to appeal under 25 CFR part 2; and
    (f) Be delivered to the applicant 20 days in advance of the 
effective date of the action.

[[Page 95]]



Sec. 20.605  What happens when an applicant or recipient appeals a

decision under this subpart?

    If you are an applicant or recipient and appeal a decision made 
under Sec. 20.604, you can continue to receive your assistance while 
your appeal is pending. For this to happen, you must submit your appeal 
by the deadline in Sec. 20.604(e).



Sec. 20.606  How is an incorrect payment adjusted or recovered?

    (a) When an incorrect payment of financial assistance has been made 
to an individual or family, a proper adjustment or recovery is required.
    (b) The proper adjustment or recovery is based upon individual need 
as appropriate to the circumstances that resulted in an incorrect 
payment.
    (c) Before adjustment or recovery, the recipient will be notified of 
the proposal to correct the payment and given an informal opportunity to 
resolve the matter.
    (d) If an informal resolution cannot be attained, the recipient must 
be given a written notice of decision and the procedures of Sec. 20.604 
will apply.
    (e) If a hearing is requested, the hearing will be conducted in 
accordance with the procedures under Sec. Sec. 20.700 through 20.705.



Sec. 20.607  What happens when applicants or recipients knowingly and 

willfully provide false or fraudulent information?

    Applicants or recipients who knowingly and willfully provide false 
or fraudulent information are subject to prosecution under 18 U.S.C. 
Sec. 1001, which carries a fine of not more than $10,000 or 
imprisonment for not more than 5 years, or both. The social services 
worker will prepare a written report detailing the information 
considered to be false and submit the report to the Superintendent or 
his/her designated representative for appropriate investigative action.



                     Subpart G_Hearings and Appeals



Sec. 20.700  Can an applicant or recipient appeal the decision of a

Bureau official?

    Yes, if you are an applicant or recipient, and are dissatisfied with 
a Bureau decision made under this part, you can request a hearing before 
the Superintendent or his/her designated representative. You must submit 
your request by the deadline in Sec. 20.604. The Superintendent or his/
her designated representative can extend the deadline if you show good 
cause.



Sec. 20.701  Does a recipient receive financial assistance while an

appeal is pending?

    Yes, if you appeal under this subpart, financial assistance will be 
continued or reinstated to insure there is no break in financial 
assistance until the Superintendent or his/her designated representative 
makes a decision. The Superintendent or his/her designated 
representative can adjust payments or recover overpayments to conform 
with his/her decision.

[65 FR 63159, Oct. 20, 2000; 65 FR 76563, Dec. 7, 2000]



Sec. 20.702  When is an appeal hearing scheduled?

    The Superintendent or his/her designated representative must set a 
date for the hearing within 10 days of the date of request for a hearing 
and give written notice to the applicant or recipient.



Sec. 20.703  What must the written notice of hearing include?

    The written notice of hearing must include:
    (a) The date, time and location of the hearing;
    (b) A statement of the facts and issues giving rise to the appeal;
    (c) The applicant's or recipient's right to be heard in person, or 
to be represented by an authorized representative at no expense to the 
Bureau;
    (d) The applicant or recipient's right to present both oral and 
written evidence during the hearing;

[[Page 96]]

    (e) The applicant's or recipient's right to confront and cross-
examine witnesses at the hearing;
    (f) The applicant's or recipient's right of one continuance of not 
more than 10 days with respect to the date of hearing; and
    (g) The applicant's or recipient's right to examine and copy, at a 
reasonable time before the hearing, his/her case record as it relates to 
the proposed action being contested.



Sec. 20.704  Who conducts the hearing or appeal of a Bureau decision

or action and what is the process?

    (a) The Superintendent or his/her designated representative conducts 
the hearing in an informal but orderly manner, records the hearing, and 
provides the applicant or recipient with a transcript of the hearing 
upon request.
    (b) The Superintendent or his/her designated representative must 
render a written decision within 10 days of the completion of the 
hearing. The written decision must include:
    (1) A written statement covering the evidence relied upon and 
reasons for the decision; and
    (2) The applicant's or recipient's right to appeal the 
Superintendent or his/her designated representative's decision pursuant 
to 25 CFR part 2 and request Bureau assistance in preparation of the 
appeal.



Sec. 20.705  Can an applicant or recipient appeal a tribal decision?

    Yes, the applicant or recipient must pursue the appeal process 
applicable to the Public Law 93-638 contract, Public Law 102-477 grant, 
or Public Law 103-413 self-governance annual funding agreement. If no 
appeal process exists, then the applicant or recipient must pursue the 
appeal through the appropriate tribal forum.



PART 23_INDIAN CHILD WELFARE ACT--Table of Contents




               Subpart A_Purpose, Definitions, and Policy

Sec.
23.1 Purpose.
23.2 Definitions.
23.3 Policy.
23.4 Information collection.

 Subpart B_Notice of Involuntary Child Custody Proceedings and Payment 
                  for Appointed Counsel in State Courts

23.11 Notice.
23.12 Designated tribal agent for service of notice.
23.13 Payment for appointed counsel in involuntary Indian child custody 
          proceedings in state courts.

 Subpart C_Grants to Indian Tribes for Title II Indian Child and Family 
                            Service Programs

23.21 Noncompetitive tribal government grants.
23.22 Purpose of tribal government grants.
23.23 Tribal government application contents.

 Subpart D_Grants to Off-Reservation Indian Organizations for Title II 
                Indian Child and Family Service Programs

23.31 Competitive off-reservation grant process.
23.32 Purpose of off-reservation grants.
23.33 Competitive off-reservation application contents and application 
          selection criteria.
23.34 Review and decision on off-reservation applications by Area 
          Director.
23.35 Deadline for Central Office action.

   Subpart E_General and Uniform Grant Administration Provisions and 
                              Requirements

23.41 Uniform grant administration provisions, requirements and 
          applicability.
23.42 Technical assistance.
23.43 Authority for grant approval and execution.
23.44 Grant administration and monitoring.
23.45 Subgrants.
23.46 Financial management, internal and external controls and other 
          assurances.
23.47 Reports and availability of information to Indians.
23.48 Matching shares and agreements.
23.49 Fair and uniform provision of services.
23.50 Service eligibility.
23.51 Grant carry-over authority.
23.52 Grant suspension.
23.53 Cancellation.

                            Subpart F_Appeals

23.61 Appeals from decision or action by Agency Superintendent, Area 
          Director or Grants Officer.
23.62 Appeals from decision or action by Area Director under subpart D.
23.63 Appeals from inaction of official.

[[Page 97]]

                   Subpart G_Administrative Provisions

23.71 Recordkeeping and information availability.

                  Subpart H_Assistance to State Courts

23.81 Assistance in identifying witnesses.
23.82 Assistance in identifying language interpreters.
23.83 Assistance in locating biological parents of Indian child after 
          termination of adoption.

    Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 1901-1952.

    Source: 59 FR 2256, Jan. 13, 1994, unless otherwise noted.



               Subpart A_Purpose, Definitions, and Policy



Sec. 23.1  Purpose.

    The purpose of the regulations in this part is to govern the 
provision of funding for, and the administration of Indian child and 
family service programs as authorized by the Indian Child Welfare Act of 
1978 (Pub. L. 95-608, 92 Stat. 3069, 25 U.S.C. 2, 9, 1901-1952).



Sec. 23.2  Definitions.

    Act means the Indian Child Welfare Act (ICWA), Pub. L. 95-608, 92 
Stat. 3069, 25 U.S.C. 1901 et seq.
    Assistant Secretary means the Assistant Secretary--Indian Affairs, 
the Department of the Interior.
    Bureau of Indian Affairs (BIA) means the Bureau of Indian Affairs, 
the Department of the Interior.
    Child custody proceeding includes:
    (1) Foster care placement, which shall mean any action removing an 
Indian child from his or her parent or Indian custodian for temporary 
placement in a foster home or institution or the home of a guardian or 
conservator where the parent or Indian custodian cannot have the child 
returned upon demand, but where parental rights have not been 
terminated;
    (2) Termination of parental rights, which shall mean any action 
resulting in the termination of the parent-child relationship;
    (3) Preadoptive placement, which shall mean the temporary placement 
of an Indian child in a foster home or institution after the termination 
of parental rights, but prior to or in lieu of adoptive placement;
    (4) Adoptive placement, which shall mean the permanent placement of 
an Indian child for adoption, including any action resulting in a final 
decree of adoption; and
    (5) Other tribal placements made in accordance with the placement 
preferences of the Act, including the temporary or permanent placement 
of an Indian child in accordance with tribal children's codes and local 
tribal custom or tradition;
    (6) The above terms shall not include a placement based upon an act 
which, if committed by an adult, would be deemed a crime in the 
jurisdiction where the act occurred or upon an award, in a divorce 
proceeding, of custody to one of the parents.
    Consortium means an association or partnership of two or more 
eligible applicants who enter into an agreement to administer a grant 
program and to provide services under the grant to Indian residents in a 
specific geographical area when it is administratively feasible to 
provide an adequate level of services within the area.
    Extended family member shall be as defined by the law or custom of 
the Indian child's tribe or, in the absence of such law or custom, shall 
be a person who has reached the age of 18 and who is the Indian child's 
grandparent, aunt or uncle, brother or sister, brother-in-law or sister-
in-law, niece or nephew, first or second cousin, or stepparent.
    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.
    Grants officer means an officially designated officer who 
administers ICWA grants awarded by the Bureau of Indian Affairs, the 
Department of the Interior.
    Indian means any person who is a member of an Indian tribe, or who 
is an

[[Page 98]]

Alaska Native and a member of a Regional Corporation as defined in 
section 7 of the Alaska Native Claims Settlement Act, 43 U.S.C. 1606.
    Indian child means any unmarried person who is under age 18 and is 
either a member of an Indian tribe, or is eligible for membership in an 
Indian tribe and is the biological child of a member of an Indian tribe.
    Indian child's tribe means the Indian tribe in which an Indian child 
is a member or is eligible for membership or, in the case of an Indian 
child who is a member of or is eligible for membership in more than one 
tribe, the Indian tribe with which the Indian child has the more 
significant contacts, to be determined in accordance with the BIA's 
``Guidelines for State Courts--Indian Child Custody Proceedings.''
    Indian custodian means any Indian person who has legal custody of an 
Indian child under tribal law or custom or under state law or to whom 
temporary physical care, custody and control has been transferred by the 
parent of such child.
    Indian organization, solely for purposes of eligibility for grants 
under subpart D of this part, means any legally established group, 
association, partnership, corporation, or other legal entity which is 
owned or controlled by Indians, or a majority (51 percent or more) of 
whose members are Indians.
    Indian preference means preference and opportunities for employment 
and training provided to Indians in the administration of grants in 
accordance with section 7 (b) of the Indian Self-Determination and 
Education Assistance Act (25 U.S.C. 450).
    Indian tribe means any Indian tribe, band, nation, or other 
organized group or community of Indians federally recognized as eligible 
for the services provided to Indians by the Secretary because of their 
status as Indians, including any Alaska Native village as defined in 
section 3 (c) of the Alaska Native Claims Settlement Act, 43 U.S.C. 1602 
(c).
    Off-reservation ICWA program means an ICWA program administered in 
accordance with 25 U.S.C. 1932 by an off-reservation Indian 
organization.
    Parent means the biological parent or parents of an Indian child or 
any Indian person who has lawfully adopted an Indian child, including 
adoptions under tribal law or custom. The term does not include the 
unwed father where paternity has not been acknowledged or established.
    Reservation means Indian country as defined in 18 U.S.C. 1151 and 
any lands not covered under such section, title to which is either held 
by the United States in trust for the benefit of any Indian tribe or 
individual or held by any Indian tribe or individual subject to a 
restriction by the United States against alienation.
    Secretary means the Secretary of the Interior.
    Service areas solely for newly recognized or restored Indian tribes 
without established reservations means those service areas 
congressionally established by Federal law to be the equivalent of a 
reservation for the purpose of determining the eligibility of a newly 
recognized or restored Indian tribe and its members for all Federal 
services and benefits.
    State court means any agent or agency of a state, including the 
District of Columbia or any territory or possession of the United 
States, or any political subdivision empowered by law to terminate 
parental rights or to make foster care placements, preadoptive 
placements, or adoptive placements.
    Subgrant means a secondary grant that undertakes part of the 
obligations of the primary grant, and assumes the legal and financial 
responsibility for the funds awarded and for the performance of the 
grant-supported activity.
    Technical assistance means the provision of oral, written, or other 
relevant information and assistance to prospective grant applicants in 
the development of their grant proposals. Technical assistance may 
include a preliminary review of an application to assist the applicant 
in identifying the strengths and weaknesses of the proposal, ongoing 
program planning, design and evaluation, and such other program-specific 
assistance as is necessary for ongoing grant administration and 
management.
    Title II means title II of Public Law 95-608, the Indian Child 
Welfare Act of 1978, which authorizes the Secretary to make grants to 
Indian tribes and off-

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reservation Indian organizations for the establishment and operation of 
Indian child and family service programs.
    Tribal Court means a court with jurisdiction over child custody 
proceedings and which is either a Court of Indian Offenses, a court 
established and operated under the code or custom of an Indian tribe, or 
any other administrative body of a tribe which is vested with authority 
over child custody proceedings.
    Tribal government means the federally recognized governing body of 
an Indian tribe.
    Value means face, par, or market value, or cost price, either 
wholesale or retail, whichever is greater.



Sec. 23.3  Policy.

    In enacting the Indian Child Welfare Act of 1978, Pub. L. 95-608, 
the Congress has declared that it is the policy of this Nation to 
protect the best interests of Indian children and to promote the 
stability and security of Indian tribes and Indian families by the 
establishment of minimum Federal standards to prevent the arbitrary 
removal of Indian children from their families and tribes and to ensure 
that measures which prevent the breakup of Indian families are followed 
in child custody proceedings (25 U.S.C. 1902). Indian child and family 
service programs receiving title II funds and operated by federally 
recognized Indian tribes and off-reservation Indian organizations shall 
reflect the unique values of Indian culture and promote the stability 
and security of Indian children, Indian families and Indian communities. 
It is the policy of the Bureau of Indian Affairs to emphasize and 
facilitate the comprehensive design, development and implementation of 
Indian child and family service programs in coordination with other 
Federal, state, local, and tribal programs which strengthen and preserve 
Indian families and Indian tribes.



Sec. 23.4  Information collection.

    (a) The information collection requirements contained in Sec. 23.13 
of this part have been approved by the Office of Management and Budget 
(OMB) under 44 U.S.C. 3501 et seq., and assigned clearance number 1076-
0111.
    (1) This information will be used to determine eligibility for 
payment of legal fees for indigent Indian parents and Indian custodians, 
involved in involuntary Indian child custody proceedings in state 
courts, who are not eligible for legal services through other 
mechanisms. Response to this request is required to obtain a benefit.
    (2) Public reporting for this information collection is estimated to 
average 10 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 aspect of this information collection should be 
mailed or hand-delivered to the Bureau of Indian Affairs, Information 
Collection Clearance Officer, Room 336-SIB, 1849 C Street, NW., 
Washington, DC 20240; and the Office of Information and Regulatory 
Affairs Paperwork Reduction Project--1076-0111, Office of Management and 
Budget, Washington, DC 20503.
    (b) The information collection requirements contained in Sec. Sec. 
23.21; 23.31; 23.46; 23.47, and 23.71 have been approved by the Office 
of Management and Budget under 44 U.S.C. 3501 et seq. and assigned 
clearance number 1076-0131. The information collection requirements 
under Sec. Sec. 23.21 and 23.31 are collected in the form of ICWA grant 
applications from Indian tribes and off-reservation Indian 
organizations. A response to this request is required to obtain grant 
funds. The information collection requirements under Sec. 23.46 are 
collected in compliance with applicable OMB circulars on financial 
management, internal and external controls and other fiscal assurances 
in accordance with existing Federal grant administration and reporting 
requirements. The grantee information collection requirements under 
Sec. 23.47 are collected in the form of quarterly and annual program 
performance narrative reports and statistical data as required by the 
grant award document. Pursuant to 25 U.S.C. 1951, the information 
collection requirement under Sec. 23.71 is collected from state courts 
entering final adoption decrees for any Indian child and is provided to 
and maintained by the Secretary.

[[Page 100]]

    (1) Public reporting for the information collection at Sec. Sec. 
23.21 and 23.31 is estimated to average 32 hours per response, including 
the time for reviewing the grant application instructions, gathering the 
necessary information and data, and completing the grant application. 
Public reporting for the information collection at Sec. Sec. 23.46 and 
23.47 is estimated to average a combined total of 16 annual hours per 
grantee, including the time for gathering the necessary information and 
data, and completing the required forms and reports. Public reporting 
for the information collection at Sec. 23.71 is estimated to average 4 
hours per response, including the time for obtaining and preparing the 
final adoption decree for transmittal to the Secretary.
    (2) Direct comments regarding any of these burden estimates or any 
aspect of these information collection requirements should be mailed or 
hand-delivered to the Bureau of Indian Affairs, Information Collection 
Clearance Officer, room 336-SIB, 1849 C Street, NW., Washington, DC, 
20240; and the Office of Information and Regulatory Affairs Paperwork 
Reduction Project--1076-0131, Office of Management and Budget, 
Washington, DC 20503.



 Subpart B_Notice of Involuntary Child Custody Proceedings and Payment 
                  for Appointed Counsel in State Courts



Sec. 23.11  Notice.

    (a) In any involuntary proceeding in a state court where the court 
knows or has reason to know that an Indian child is involved, and where 
the identity and location of the child's Indian parents or custodians or 
tribe is known, the party seeking the foster care placement of, or 
termination of parental rights to, an Indian child shall directly notify 
the Indian parents, Indian custodians, and the child's tribe by 
certified mail with return receipt requested, of the pending proceedings 
and of their right of intervention. Notice shall include requisite 
information identified at paragraphs (d)(1) through (4) and (e)(1) 
through (6) of this section, consistent with the confidentiality 
requirement in paragraph (e)(7) of this section. Copies of these notices 
shall be sent to the Secretary and the appropriate Area Director listed 
in paragraphs (c)(1) through (12) of this section.
    (b) If the identity or location of the Indian parents, Indian 
custodians or the child's tribe cannot be determined, notice of the 
pendency of any involuntary child custody proceeding involving an Indian 
child in a state court shall be sent by certified mail with return 
receipt requested to the appropriate Area Director listed in paragraphs 
(c)(1) through (12) of this section. In order to establish tribal 
identity, it is necessary to provide as much information as is known on 
the Indian child's direct lineal ancestors including, but not limited 
to, the information delineated at paragraph (d)(1) through (4) of this 
section.
    (c)(1) For proceedings in Alabama, Connecticut, Delaware, District 
of Columbia, Florida, Georgia, Kentucky, Louisiana, Maine, Maryland, 
Massachusetts, Mississippi, New Hampshire, New Jersey, New York, North 
Carolina, Pennsylvania, Rhode Island, South Carolina, Tennessee, 
Vermont, Virginia, West Virginia or any territory or possession of the 
United States, notices shall be sent to the following address: Eastern 
Area Director, Bureau of Indian Affairs, 3701 N. Fairfax Drive, Suite 
260, Arlington, Virginia 22201.
    (2) For proceedings in Illinois, Indiana, Iowa, Michigan, Minnesota, 
Ohio, or Wisconsin, notices shall be sent to the following address: 
Minneapolis Area Director, Bureau of Indian Affairs, 331 Second Avenue 
South, Minneapolis, Minnesota 55401-2241.
    (3) For proceedings in Nebraska, North Dakota, or South Dakota, 
notices shall be sent to the following address: Aberdeen Area Director, 
Bureau of Indian Affairs, 115 Fourth Avenue, SE, Aberdeen, South Dakota 
57401.
    (4) For proceedings in Kansas, Texas (except for notices to the 
Ysleta del Sur Pueblo of El Paso County, Texas), and the western 
Oklahoma counties of Alfalfa, Beaver, Beckman, Blaine, Caddo, Canadian, 
Cimarron, Cleveland, Comanche, Cotton, Custer, Dewey, Ellis, Garfield, 
Grant, Greer, Harmon, Harper, Jackson, Kay, Kingfisher, Kiowa, Lincoln, 
Logan, Major, Noble, Oklahoma, Pawnee, Payne,

[[Page 101]]

Pottawatomie, Roger Mills, Texas, Tillman, Washita, Woods and Woodward, 
notices shall be sent to the following address: Anadarko Area Director, 
Bureau of Indian Affairs, P.O. Box 368, Anadarko, Oklahoma 73005. 
Notices to the Ysleta del Sur Pueblo of El Paso County, Texas shall be 
sent to the Albuquerque Area Director at the address listed in paragraph 
(c)(6) of this section.
    (5) For proceedings in Wyoming or Montana (except for notices to the 
Confederated Salish & Kootenai Tribes of the Flathead Reservation, 
Montana), notices shall be sent to the following address: Billings Area 
Director, Bureau of Indian Affairs, 316 N. 26th Street, Billings, 
Montana 59101. Notices to the Confederated Salish & Kootenai Tribes of 
the Flathead Reservation, Montana, shall be sent to the Portland Area 
Director at the address listed in paragraph (c)(11) of this section.
    (6) For proceedings in the Texas counties of El Paso and Hudspeth 
and proceedings in Colorado or New Mexico (exclusive of notices to the 
Navajo Tribe from the New Mexico counties listed in paragraph (c)(9) of 
this section), notices shall be sent to the following address: 
Albuquerque Area Director, Bureau of Indian Affairs, 615 First Street, 
P.O. Box 26567, Albuquerque, New Mexico 87125. Notices to the Navajo 
Tribe shall be sent to the Navajo Area Director at the address listed in 
paragraph (c)(9) of this section.
    (7) For proceedings in Alaska (except for notices to the Metlakatla 
Indian Community, Alaska), notices shall be sent to the following 
address: Juneau Area Director, Bureau of Indian Affairs, 709 West 9th 
Street, Juneau, Alaska 99802-1219. Notices to the Metlakatla Indian 
Community of the Annette Islands Reserve, Alaska, shall be sent to the 
Portland Area Director at the address listed in paragraph (c)(11) of 
this section.
    (8) For proceedings in Arkansas, Missouri, and the eastern Oklahoma 
counties of Adair, Atoka, Bryan, Carter, Cherokee, Craig, Creek, 
Choctaw, Coal, Delaware, Garvin, Grady, Haskell, Hughes, Jefferson, 
Johnson, Latimer, LeFlore, Love, Mayes, McCurtain, McClain, McIntosh, 
Murray, Muskogee, Nowata, Okfuskee, Okmulgee, Osage, Ottawa, Pittsburg, 
Pontotoc, Pushmataha, Marshall, Rogers, Seminole, Sequoyah, Wagoner, 
Washington, Stephens, and Tulsa, notices shall be sent to the following 
address: Muskogee Area Director, Bureau of Indian Affairs, 101 North 
Fifth Street, Muskogee, Oklahoma 74401.
    (9) For proceedings in the Arizona counties of Apache, Coconino 
(except for notices to the Hopi and San Juan Paiute Tribes) and Navajo 
(except for notices to the Hopi Tribe); the New Mexico counties of 
McKinley (except for notices to the Zuni Tribe), San Juan, and Socorro; 
and the Utah county of San Juan, notices shall be sent to the following 
address: Navajo Area Director, Bureau of Indian Affairs, P.O. Box 1060, 
Gallup, New Mexico 87301. Notices to the Hopi and San Juan Paiute Tribes 
shall be sent to the Phoenix Area Director at the address listed in 
paragraph (c)(10) of this section. Notices to the Zuni Tribe shall be 
sent to the Albuquerque Area Director at the address listed in paragraph 
(c)(6) of this section.
    (10) For proceedings in Arizona (exclusive of notices to the Navajo 
Tribe from those counties listed in paragraph (c)(9) of this section), 
Nevada or Utah (exclusive of San Juan county), notices shall be sent to 
the following address: Phoenix Area Director, Bureau of Indian Affairs, 
1 North First Street, P.O. Box 10, Phoenix, Arizona 85001.
    (11) For proceedings in Idaho, Oregon or Washington, notices shall 
be sent to the following address: Portland Area Director, Bureau of 
Indian Affairs, 911 NE 11th Avenue, Portland, Oregon 97232. All notices 
to the Confederated Salish & Kootenai Tribes of the Flathead 
Reservation, located in the Montana counties of Flathead, Lake, 
Missoula, and Sanders, shall also be sent to the Portland Area Director.
    (12) For proceedings in California or Hawaii, notices shall be sent 
to the following address: Sacramento Area Director, Bureau of Indian 
Affairs, Federal Office Building, 2800 Cottage Way, Sacramento, 
California 95825.
    (d) Notice to the appropriate Area Director pursuant to paragraph 
(b) of this section may be sent by certified mail with return receipt 
requested or by

[[Page 102]]

personal service and shall include the following information, if known:
    (1) Name of the Indian child, the child's birthdate and birthplace.
    (2) Name of Indian tribe(s) in which the child is enrolled or may be 
eligible for enrollment.
    (3) All names known, and current and former addresses of the Indian 
child's biological mother, biological father, maternal and paternal 
grandparents and great grandparents or Indian custodians, including 
maiden, married and former names or aliases; birthdates; places of birth 
and death; tribal enrollment numbers, and/or other identifying 
information.
    (4) A copy of the petition, complaint or other document by which the 
proceeding was initiated.
    (e) In addition, notice provided to the appropriate Area Director 
pursuant to paragraph (b) of this section shall include the following:
    (1) A statement of the absolute right of the biological Indian 
parents, the child's Indian custodians and the child's tribe to 
intervene in the proceedings.
    (2) A statement that if the Indian parent(s) or Indian custodian(s) 
is (are) unable to afford counsel, and where a state court determines 
indigency, counsel will be appointed to represent the Indian parent or 
Indian custodian where authorized by state law.
    (3) A statement of the right of the Indian parents, Indian 
custodians and child's tribe to be granted, upon request, up to 20 
additional days to prepare for the proceedings.
    (4) The location, mailing address, and telephone number of the court 
and all parties notified pursuant to this section.
    (5) A statement of the right of the Indian parents, Indian 
custodians and the child's tribe to petition the court for transfer of 
the proceeding to the child's tribal court pursuant to 25 U.S.C. 1911, 
absent objection by either parent: Provided, that such transfer shall be 
subject to declination by the tribal court of said tribe.
    (6) A statement of the potential legal consequences of the 
proceedings on the future custodial and parental rights of the Indian 
parents or Indian custodians.
    (7) A statement that, since child custody proceedings are conducted 
on a confidential basis, all parties notified shall keep confidential 
the information contained in the notice concerning the particular 
proceeding. The notices shall not be handled by anyone not needing the 
information contained in the notices in order to exercise the tribe's 
rights under the Act.
    (f) Upon receipt of the notice, the Secretary or his/her designee 
shall make reasonable documented efforts to locate and notify the 
child's tribe and the child's Indian parents or Indian custodians. The 
Secretary or his/her designee shall have 15 days, after receipt of the 
notice from the persons initiating the proceedings, to notify the 
child's tribe and Indian parents or Indian custodians and send a copy of 
the notice to the court. If within the 15-day time period the Secretary 
or his/her designee is unable to verify that the child meets the 
criteria of an Indian child as defined in 25 U.S.C. 1903, or is unable 
to locate the Indian parents or Indian custodians, the Secretary or his/
her designee shall so inform the court prior to initiation of the 
proceedings and state how much more time, if any, will be needed to 
complete the search. The Secretary or his/her designee shall complete 
all research efforts, even if those efforts cannot be completed before 
the child custody proceeding begins.
    (g) Upon request from a party to an Indian child custody proceeding, 
the Secretary or his/her designee shall make a reasonable attempt to 
identify and locate the child's tribe, Indian parents or Indian 
custodians to assist the party seeking the information.



Sec. 23.12  Designated tribal agent for service of notice.

    Any Indian tribe entitled to notice pursuant to 25 U.S.C. 1912 may 
designate by resolution, or by such other form as the tribe's 
constitution or current practice requires, an agent for service of 
notice other than the tribal chairman and send a copy of the designation 
to the Secretary or his/her designee. The Secretary or his/her designee 
shall update and publish as necessary the names and addresses of the

[[Page 103]]

designated agents in the Federal Register. A current listing of such 
agents shall be available through the area offices.



Sec. 23.13  Payment for appointed counsel in involuntary Indian child

custody proceedings in state courts.

    (a) When a state court appoints counsel for an indigent Indian party 
in an involuntary Indian child custody proceeding for which the 
appointment of counsel is not authorized under state law, the court 
shall send written notice of the appointment to the BIA Area Director 
designated for that state in Sec. 23.11. The notice shall include the 
following:
    (1) Name, address, and telephone number of attorney who has been 
appointed.
    (2) Name and address of client for whom counsel is appointed.
    (3) Relationship of client to child.
    (4) Name of Indian child's tribe.
    (5) Copy of the petition or complaint.
    (6) Certification by the court that state law makes no provision for 
appointment of counsel in such proceedings.
    (7) Certification by the court that the Indian client is indigent.
    (b) The Area Director shall certify that the client is eligible to 
have his or her appointed counsel compensated by the BIA unless:
    (1) The litigation does not involve a child custody proceeding as 
defined in 25 U.S.C. 1903 (1);
    (2) The child who is the subject of the litigation is not an Indian 
child as defined in 25 U.S.C. 1903 (4);
    (3) The client is neither the Indian child who is the subject of the 
litigation, the Indian child's parent as defined in 25 U.S.C. 1903 (9), 
nor the child's Indian custodian as defined in 25 U.S.C. 1903 (6);
    (4) State law provides for appointment of counsel in such 
proceedings;
    (5) The notice to the Area Director of appointment of counsel is 
incomplete; or
    (6) Funds are not available for the particular fiscal year.
    (c) No later than 10 days after receipt of the notice of appointment 
of counsel, the Area Director shall notify the court, the client, and 
the attorney in writing whether the client has been certified as 
eligible to have his or her attorney fees and expenses paid by the BIA. 
If certification is denied, the notice shall include written reasons for 
that decision, together with a statement that complies with 25 CFR 2.7 
and that informs the applicant that the decision may be appealed to the 
Assistant Secretary. The Assistant Secretary shall consider appeals 
under this subsection in accordance with 25 CFR 2.20 (c) through (e). 
Appeal procedures shall be as set out in part 2 of this chapter.
    (d) When determining attorney fees and expenses, the court shall:
    (1) Determine the amount of payment due appointed counsel by the 
same procedures and criteria it uses in determining the fees and 
expenses to be paid appointed counsel in state juvenile delinquency 
proceedings; and
    (2) Submit approved vouchers to the Area Director who certified 
eligibility for BIA payment, together with the court's certification 
that the amount requested is reasonable under the state standards 
considering the work actually performed in light of criteria that apply 
in determining fees and expenses for appointed counsel in state juvenile 
delinquency proceedings.
    (e) The Area Director shall authorize the payment of attorney fees 
and expenses in the amount requested in the voucher approved by the 
court unless:
    (1) The amount of payment due the state-appointed counsel is 
inconsistent with the fees and expenses specified in Sec. 23.13 (d)(1); 
or
    (2) The client has not been certified previously as eligible under 
paragraph (c) of this section; or
    (3) The voucher is submitted later than 90 days after completion of 
the legal action involving a client certified as eligible for payment of 
legal fees under paragraph (b) of this section.
    (f) No later than 15 days after receipt of a payment voucher, the 
Area Director shall send written notice to the court, the client, and 
the attorney stating the amount of payment, if any, that has been 
authorized. If the payment has been denied, or the amount authorized is 
less than the amount requested in the voucher approved by the

[[Page 104]]

court, the notice shall include a written statement of the reasons for 
the decision together with a statement that complies with 25 CFR 2.7 and 
that informs the client that the decision may be appealed to the 
Interior Board of Indian Appeals in accordance with 25 CFR 2.4 (e); 43 
CFR 4.310 through 4.318 and 43 CFR 4.330 through 4.340.
    (g) Failure of the Area Director to meet the deadline specified in 
paragraphs (c) and (f) of this section may be treated as a denial for 
purposes of appeal under paragraph (f) of this section.
    (h) Payment for appointed counsel does not extend to Indian tribes 
involved in state court child custody proceedings or to Indian families 
involved in Indian child custody proceedings in tribal courts.



 Subpart C_Grants to Indian Tribes for Title II Indian Child and Family 
                            Service Programs



Sec. 23.21  Noncompetitive tribal government grants.

    (a) Grant application information and technical assistance. 
Information on grant application procedures and related information may 
be obtained from the appropriate Agency Superintendent or Area Director. 
Pre-award and ongoing technical assistance to tribal governments shall 
be provided in accordance with Sec. 23.42 of this part.
    (b) Eligibility requirements for tribal governments. The tribal 
government(s) of any Indian tribe or consortium of tribes may submit a 
properly documented application for a grant to the appropriate Agency 
Superintendent or Area Director. A tribe may neither submit more than 
one application for a grant nor be the beneficiary of more than one 
grant under this subpart.
    (1) Through the publication of a Federal Register announcement at 
the outset of the implementation of the noncompetitive grant award 
process during which tribal applications will be solicited, the 
Assistant Secretary will notify eligible tribal applicants under this 
subpart of the amount of core funds available for their ICWA program. 
The funding levels will be based on the service area population to be 
served. Upon the receipt of this notice from the Agency Superintendent 
or appropriate Area Director, tribal applicants shall submit a completed 
ICWA application no later than 60 days after the receipt of this notice.
    (2) A grant to be awarded under this subpart shall be limited to the 
tribal governing body(ies) of the tribe(s) to be served by the grant.
    (3) For purposes of eligibility for newly recognized or restored 
Indian tribes without established reservations, such tribes shall be 
deemed eligible to apply for grants under this subpart to provide ICWA 
services within those service areas legislatively identified for such 
tribes.
    (4) A grantee under this subpart may make a subgrant to another 
Indian tribe or an Indian organization subject to the provisions of 
Sec. 23.45.
    (c) Revision or amendment of grants. A grantee under this subpart 
may submit a written request and justification for a post-award grant 
modification covering material changes to the terms and conditions of 
the grant, subject to the approval of the grants officer. The request 
shall include a narrative description of any significant additions, 
deletions, or changes to the approved program activities or budget in 
the form of a grant amendment proposal.
    (d) Continued annual funding of an ICWA grant under this subpart 
shall be contingent upon the fulfillment of the requirements delineated 
at Sec. 23.23(c).
    (e) Monitoring and program reporting requirements for grantees under 
this subpart are delineated at Sec. Sec. 23.44 and 23.47.



Sec. 23.22  Purpose of tribal government grants.

    (a) Grants awarded under this subpart are for the establishment and 
operation of tribally designed Indian child and family service programs. 
The objective of every Indian child and family service program shall be 
to prevent the breakup of Indian families and to ensure that the 
permanent removal of an Indian child from the custody of his or her 
Indian parent or Indian custodian shall be a last resort. Such child and 
family service programs may include, but need not be limited to:
    (1) A system for licensing or otherwise regulating Indian foster and 
adoptive homes, such as establishing tribal

[[Page 105]]

standards for approval of on-reservation foster or adoptive homes;
    (2) The operation and maintenance of facilities for counseling and 
treatment of Indian families and for the temporary custody of Indian 
children with the goal of strengthening Indian families and preventing 
parent-child separations;
    (3) Family assistance, including homemaker and home counselors, 
protective day care and afterschool care, recreational activities, 
respite care, and employment support services with the goal of 
strengthening Indian families and contributing to family stability;
    (4) Home improvement programs with the primary emphasis on 
preventing the removal of children due to unsafe home environments by 
making homes safer, but not to make extensive structural home 
improvements;
    (5) The employment of professional and other trained personnel to 
assist the tribal court in the disposition of domestic relations and 
child welfare matters, but not to establish tribal court systems;
    (6) Education and training of Indians, including tribal court judges 
and staff, in skills relating to child and family assistance and service 
programs;
    (7) A subsidy program under which Indian adoptive children not 
eligible for state or BIA subsidy programs may be provided support 
comparable to that for which they could be eligible as foster children, 
taking into account the appropriate state standards of support for 
maintenance and medical needs;
    (8) Guidance, legal representation and advice to Indian families 
involved in tribal, state, or Federal child custody proceedings; and
    (9) Other programs designed to meet the intent and purposes of the 
Act.
    (b) Grants may be provided to tribes in the preparation and 
implementation of child welfare codes within their jurisdiction or 
pursuant to a tribal-state agreement.
    (c) Grantees under this subpart may enhance their capabilities by 
utilizing ICWA funds as non-Federal matching shares in connection with 
funds provided under titles IV-B, IV-E and XX of the Social Security Act 
or other Federal programs which contribute to and promote the intent and 
purposes of the Act through the provision of comprehensive child and 
family services in coordination with other tribal, Federal, state, and 
local resources available for the same purpose.
    (d) Program income resulting from the operation of programs under 
this subpart, such as day care operations, may be retained and used for 
purposes similar to those for which the grant was awarded.



Sec. 23.23  Tribal government application contents.

    (a) The appropriate Area Director shall, subject to the tribe's 
fulfillment of the mandatory application requirements and the 
availability of appropriated funds, make a grant to the tribal governing 
body of a tribe or consortium of tribes eligible to apply for a grant 
under this subpart.
    (b) The following mandatory tribal application requirements must be 
submitted to the appropriate Agency Superintendent or Area Director in 
accordance with the timeframe established in Sec. 23.21 (b) of this 
subpart:
    (1) A current tribal resolution requesting a grant by the Indian 
tribe(s) to be served by the grant. If an applicant is applying for a 
grant benefiting more than one tribe (consortium), an authorizing 
resolution from each tribal government to be served must be included. 
The request must be in the form of a current tribal resolution by the 
tribal governing body and shall include the following information:
    (i) The official name of tribe(s) applying for the grant and who 
will directly benefit from or receive services from the grant;
    (ii) The proposed beginning and ending dates of the grant;
    (iii) A provision stating that the resolution will remain in effect 
for the duration of the program or until the resolution expires or is 
rescinded; and
    (iv) The signature of the authorized representative of the tribal 
government and the date thereof.
    (2) A completed Application for Federal Assistance form, SF-424.
    (3) A narrative needs assessment of the social problems or issues 
affecting the resident Indian population to be served; the geographic 
area(s) to be

[[Page 106]]

served; and estimated number of resident Indian families and/or persons 
to receive benefits or services from the program.
    (4) A comprehensive developmental multi-year plan in narrative form 
describing what specific services and/or activities will be provided 
each program year and addressing the above-identified social problems or 
issues. At a minimum, the plan must include:
    (i) The program goals and objectives, stated in measurable terms, to 
be achieved through the grant;
    (ii) A narrative description of how Indian families and communities 
will benefit from the program; and
    (iii) The methodology, including culturally defined approaches, and 
procedures by which the tribe(s) will accomplish the identified goals 
and objectives.
    (5) An internal monitoring system to measure progress and 
accomplishments, and to assure that the quality and quantity of actual 
performance conforms to the requirements of the grant.
    (6) A staffing plan that is consistent with the implementation of 
the above-described program plan of operation and the procedures 
necessary for the successful delivery of services.
    (i) The plan must include proposed key personnel; their 
qualifications, training or experience relevant to the services to be 
provided; responsibilities; Indian preference criteria for employment; 
and position descriptions.
    (ii) In accordance with 25 U.S.C. 3201 et seq. (Pub. L. 101-630), 
title IV, the Indian Child Protection and Family Violence Prevention 
Act, grantees shall conduct character and background investigations of 
those personnel identified in that statute. Grantees must initiate 
character and background investigations of said personnel prior to their 
actual employment, and complete the investigations in a timely manner.
    (7) A program budget and budget narrative justification submitted on 
an annual basis for the amount of the award and supported by the 
proposed plan, appropriate program services and activities for the 
applicable grant year.
    (8) Identification of any consultants and/or subgrantees the 
applicant proposes to employ; a description of the consultant and/or 
subgrantee services to be rendered; the qualifications and experience in 
performing the identified services; and the basis for the cost and 
amount to be paid for such services.
    (9) A certification by a licensed accountant that the bookkeeping 
and accounting procedures which the tribe(s) uses or intends to use meet 
existing Federal standards for grant management and administration 
specified at Sec. 23.46.
    (10) A system for managing property and recordkeeping which complies 
with subpart D of 43 CFR part 2 implementing the Privacy Act (5 U.S.C. 
552a) and with existing Federal requirements for grants at 25 CFR 276.5 
and 276.11, including the maintenance and safeguarding of direct service 
case records on families and/or individuals served by the grant.
    (11) A listing of equipment, facilities, and buildings necessary to 
carry out the grant program. Liability insurance coverage for buildings 
and their contents is recommended for grantees under this subpart.
    (12) Pursuant to the Drug-Free Workplace Act of 1988, tribal 
programs shall comply with the mandatory Drug-Free Workplace 
Certification, a regulatory requirement for Federal grant recipients.
    (c) Continued annual funding of an ICWA program under this subpart 
shall be contingent upon the existing grant program receiving a 
satisfactory program evaluation from the area social services office for 
the previous year of operation. A copy of this evaluation must be 
submitted together with an annual budget and budget narrative 
justification in accordance with paragraph (b)(7) of this section. 
Minimum standards for receiving a satisfactory evaluation shall include:
    (1) The timely submission of all fiscal and programmatic reports;
    (2) A narrative program report indicating work accomplished in 
accordance with the applicant's approved multi-year plan and, if 
applicable, a description of any modification in programs or activities 
to be funded in the next fiscal year; and
    (3) The implementation of mutually determined corrective action 
measures, if applicable.

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 Subpart D_Grants to Off-Reservation Indian Organizations for Title II 
                Indian Child and Family Service Programs



Sec. 23.31  Competitive off-reservation grant process.

    (a) Grant application procedures and related information may be 
obtained from the Area Director designated at Sec. 23.11 for processing 
ICWA notices for the state in which the applicant is located. Pre-award 
and ongoing technical assistance of off-reservation Indian organization 
grantees shall be provided in accordance with Sec. 23.42.
    (b) Prior to the beginning of or during the applicable year(s) in 
which grants for off-reservation programs will be awarded competitively, 
the Assistant Secretary--Indian Affairs shall publish in the Federal 
Register an announcement of the grant application process for the 
year(s), including program priorities or special considerations (if 
any), applicant eligibility criteria, the required application contents, 
the amount of available funding and evaluation criteria for off-
reservation programs.
    (c) Based on the announcement described in paragraph (b) of this 
section, an off-reservation applicant shall prepare a multi-year 
developmental application in accordance with Sec. 23.33 of this 
subpart. To be considered in the area competitive review and scoring 
process, a complete application must be received by the deadline 
announced in the Federal Register by the Area Director designated at 
Sec. 23.11 for processing ICWA notices for the state in which the 
applicant is located.
    (d) Eligibility requirements for off-reservation Indian 
organizations. The Secretary or his/her designee shall, contingent upon 
the availability of funds, make a multi-year grant under this subpart 
for an off-reservation program when officially requested by a resolution 
of the board of directors of the Indian organization applicant, upon the 
applicant's fulfillment of the mandatory application requirements and 
upon the applicant's successful competition pursuant to Sec. 23.33 of 
this subpart.
    (e) A grant under this subpart for an off-reservation Indian 
organization shall be limited to the board of directors of the Indian 
organization which will administer the grant.
    (f) Continued annual funding of a multi-year grant award to an off-
reservation ICWA program under this subpart shall be contingent upon the 
grantee's fulfillment of the requirements delineated at Sec. 23.33 (e).
    (g) Monitoring and program reporting requirements for grants awarded 
to off-reservation Indian organizations under this subpart are 
delineated at Sec. Sec. 23.44 and 23.47.



Sec. 23.32  Purpose of off-reservation grants.

    The Secretary or his/her designee is authorized to make grants to 
off-reservation Indian organizations to establish and operate off-
reservation Indian child and family service programs for the purpose of 
stabilizing Indian families and tribes, preventing the breakup of Indian 
families and, in particular, to ensure that the permanent removal of an 
Indian child from the custody of his/her Indian parent or Indian 
custodian shall be a last resort. Child and family service programs may 
include, but are not limited to:
    (a) A system for regulating, maintaining, and supporting Indian 
foster and adoptive homes, including a subsidy program under which 
Indian adoptive children may be provided support comparable to that for 
which they would be eligible as Indian foster children, taking into 
account the appropriate state standards of support for maintenance and 
medical needs;
    (b) The operation and maintenance of facilities and services for 
counseling and treatment of Indian families and Indian foster and 
adoptive children with the goal of strengthening and stabilizing Indian 
families;
    (c) Family assistance (including homemaker and home counselors), 
protective day care and afterschool care, employment support services, 
recreational activities, and respite care with the goal of strengthening 
Indian families and contributing toward family stability; and
    (d) Guidance, legal representation and advice to Indian families 
involved in state child custody proceedings.

[[Page 108]]



Sec. 23.33  Competitive off-reservation application contents and 

application selection criteria.

    (a) An application for a competitive multi-year grant under this 
subpart shall be submitted to the appropriate Area Director prior to or 
on the announced deadline date published in the Federal Register. The 
Area Director shall certify the application contents pursuant to Sec. 
23.34 and forward the application within five working days to the area 
review committee, composed of members designated by the Area Director, 
for competitive review and action. Modifications and/or information 
received after the close of the application period, as announced in the 
Federal Register, shall not be reviewed or considered by the area review 
committee in the competitive process.
    (b) Mandatory application requirements for Indian organization 
applicants shall include:
    (1) An official request for an ICWA grant program from the 
organization's board of directors covering the duration of the proposed 
program;
    (2) A completed Application for Federal Assistance form, SF 424;
    (3) Written assurances that the organization meets the definition of 
Indian organization at Sec. 23.2;
    (4) A copy of the organization's current Articles of Incorporation 
for the applicable grant years;
    (5) Proof of the organization's nonprofit status;
    (6) A copy of the organization's IRS tax exemption certificate and 
IRS employer identification number;
    (7) Proof of liability insurance for the applicable grant years; and
    (8) Current written assurances that the requirements of Circular A-
128 for fiscal management, accounting, and recordkeeping are met.
    (9) Pursuant to the Drug-Free Workplace Act of 1988, all grantees 
under this subpart shall comply with the mandatory Drug-Free Workplace 
Certification, a regulatory requirement for Federal grant recipients.
    (c) Competitive application selection criteria. The Area Director or 
his/her designated representative shall select those proposals which 
will in his/her judgment best promote the proposes of the Act. Selection 
shall be made through the area review committee process in which each 
application will be scored individually and ranked according to score, 
taking into consideration the mandatory requirements as specified above 
and the following selection criteria:
    (1) The degree to which the application reflects an understanding of 
the social problems or issues affecting the resident Indian client 
population which the applicant proposes to serve;
    (2) Whether the applicant presents a narrative needs assessment, 
quantitative data and demographics of the client Indian population to be 
served;
    (3) Estimates of the number of Indian people to receive benefits or 
services from the program based on available data;
    (4) Program goals and objectives to be achieved through the grant;
    (5) A comprehensive developmental multi-year narrative plan 
describing what specific services and/or activities will be provided 
each program year and addressing the above-identified social problems or 
issues. At a minimum, the plan must include a narrative description of 
the program; the program goals and objectives, stated in measurable 
terms, to be achieved through the grant; and the methodology, including 
culturally defined approaches, and procedures by which the grantee will 
accomplish the identified goals and objectives;
    (6) An internal monitoring system the grantee will use to measure 
progress and accomplishments, and to ensure that the quality and 
quantity of actual performance conforms to the requirements of the 
grant;
    (7) Documentation of the relative accessibility which the Indian 
population to be served under a specific proposal already has to 
existing child and family service programs emphasizing the prevention of 
Indian family breakups, such as mandatory state services. Factors to be 
considered in determining accessibility include:
    (i) Cultural barriers;
    (ii) Discrimination against Indians;
    (iii) Inability of potential Indian clientele to pay for services;
    (iv) Technical barriers created by existing public or private 
programs;

[[Page 109]]

    (v) Availability of transportation to existing programs;
    (vi) Distance between the Indian community to be served under the 
proposal and the nearest existing programs;
    (vii) Quality of services provided to Indian clientele; and
    (viii) Relevance of services provided to specific needs of the 
Indian clientele.
    (8) If the proposed program duplicates existing Federal, state, or 
local child and family service programs emphasizing the prevention of 
Indian family breakups, proper and current documented evidence that 
repeated attempts to obtain services have been unsuccessful;
    (9) Evidence of substantial support from the Indian community or 
communities to be served, including but not limited to:
    (i) Tribal support evidenced by a tribal resolution or cooperative 
service agreements between the administrative bodies of the affected 
tribe(s) and the applicant for the duration of the grant period, or
    (ii) Letters of support from social services organizations familiar 
with the applicant's past work experience;
    (10) A staffing plan that is consistent with the implementation of 
the above-described program plan of operation and the procedures 
necessary for the successful delivery of services. The plan must include 
proposed key personnel, their qualifications, training or experience 
relevant to the services to be provided, responsibilities, Indian 
preference criteria for employment and position descriptions. In 
accordance with 25 U.S.C. 3201 et seq. (Pub. L. 101-630), title IV, the 
Indian Child Protection and Family Violence Prevention Act, grantees 
shall conduct character and background investigations of those personnel 
identified in that statute prior to their actual employment;
    (11) The reasonableness and relevance of the estimated overall costs 
of the proposed program or services and their overall relation to the 
organization's funding base, activities, and mission;
    (12) The degree to which the detailed annual budget and 
justification for the requested funds are consistent with, and clearly 
supported by, the proposed plan and by appropriate program services and 
activities for the applicable grant year;
    (13) The applicant's identification of any consultants and/or 
subgrantees it proposes to employ; description of the services to be 
rendered; the qualifications and experience of said personnel, 
reflecting the requirements for performing the identified services; and 
the basis for the cost and the amount to be paid for such services;
    (14) Certification by a licensed accountant that the bookkeeping and 
accounting procedures that the applicant uses or intends to use meet 
existing Federal standards for grant administration and management 
specified at Sec. 23.46;
    (15) The compliance of property management and recordkeeping systems 
with subpart D of 43 CFR part 2 (the Privacy Act, 5 U.S.C. 552a), and 
with existing Federal requirements for grants at 25 CFR 276.5 and 
276.11, including the maintenance and safeguarding of direct service 
case records on families and/or individuals served by the grant;
    (16) A description of the proposed facilities, equipment, and 
buildings necessary to carry out the grant activities; and
    (17) Proof of liability insurance coverage for the applicable grant 
year(s).
    (d) Two or more applications receiving the same competitive score 
will be prioritized in accordance with announcements made in the Federal 
Register pursuant to Sec. 23.31 (b) for the applicable year(s).
    (e) Continued annual funding of a multi-year grant award to an off-
reservation ICWA program under this subpart shall be contingent upon the 
availability of appropriated funds and upon the existing grant program 
receiving a satisfactory program evaluation from the area social 
services office for the previous year of operation. A copy of this 
evaluation shall be submitted together with an annual budget and budget 
narrative justification in accordance with paragraph (c)(10) of this 
section. Minimum standards for receiving a satisfactory evaluation shall 
include the timely submission of all fiscal and programmatic reports; a 
narrative program report indicating

[[Page 110]]

work accomplished in accordance with the initial approved multi-year 
plan; and the implementation of mutually determined corrective action 
measures, if applicable.



Sec. 23.34  Review and decision on off-reservation applications by 

Area Director.

    (a) Area office certification. Upon receipt of an application for a 
grant by an off-reservation Indian organization at the area office, the 
Area Director shall:
    (1) Complete and sign the area office certification form. In 
completing the area certification form, the Area Director shall assess 
and certify whether applications contain and meet all the application 
requirements specified at Sec. 23.33. Area Directors shall be 
responsible for the completion of the area office certification forms 
for all applications submitted by off-reservation Indian organizations.
    (2) Acknowledge receipt of the application to the applicant and 
advise the applicant of the disposition of the application within 10 
days of receipt; and
    (3) Transmit all applications within five working days of receipt to 
the area review committee for competitive review and subsequent approval 
or disapproval of the applications.
    (b) Area office competitive review and decision for off-reservation 
applications. Upon receipt of an application for an off-reservation 
grant under this part requiring the approval of the Area Director, the 
Area Director shall:
    (1) Establish and convene an area review committee, chaired by a 
person qualified by knowledge, training and experience in the delivery 
of Indian child and family services.
    (2) Review the area office certification form required in paragraph 
(a) of this section.
    (3) Review the application in accordance with the competitive review 
procedures prescribed in Sec. 23.33. An application shall not receive 
approval for funding under the area competitive review and scoring 
process unless a review of the application determines that it:
    (i) Contains all the information required in Sec. 23.33 which must 
be received by the close of the application period. Modifications of the 
grant application received after the close of the application period 
shall not be considered in the competitive review process.
    (ii) Receives at least the established minimum score in an area 
competitive review, using the application selection criteria and scoring 
process set out in Sec. 23.33. The minimum score shall be established 
by the Central Office prior to each application period and announced in 
the Federal Register for the applicable grants year(s).
    (4) Approve or disapprove the application and promptly notify the 
applicant in writing of the approval or disapproval of the application. 
If the application is disapproved, the Area Director shall include in 
the written notice the specific reasons therefore.
    (c) The actual funding amounts for the initial grant year shall be 
subject to appropriations available nationwide and the continued funding 
of an approved off-reservation grant application under subpart D of this 
part shall be subject to available funds received by the respective area 
office for the applicable grant year. Initial funding decisions and 
subsequent decisions with respect to funding level amounts for all 
approved grant applications under this part shall be made by the Area 
Director.



Sec. 23.35  Deadline for Central Office action.

    Within 30 days of the receipt of grant reporting forms from the Area 
Directors identifying approved and disapproved applications pursuant to 
subpart D of this part and recommended funding levels for approved 
applications, the Secretary or his/her designee shall process the Area 
Directors' funding requests.



   Subpart E_General and Uniform Grant Administration Provisions and 
                              Requirements



Sec. 23.41  Uniform grant administration provisions, requirements

and applicability.

    The general and uniform grant administration provisions and 
requirements specified at 25 CFR part 276 and under this subpart are 
applicable to all grants awarded to tribal governments

[[Page 111]]

and off-reservation Indian organizations under this part, except to the 
extent inconsistent with an applicable Federal statute, regulation or 
OMB circular.



Sec. 23.42  Technical assistance.

    (a) Pre-award and ongoing technical assistance may be requested by 
an Indian tribe or off-reservation Indian organization from the 
appropriate agency or area office to which the tribe or organization 
will be submitting an application for funds under subparts C and D of 
this part. A request for pre-award technical assistance by an off-
reservation Indian organization must be received by the Area Director 
designated at Sec. 23.11 for the state in which the applicant is 
located no later than 10 days prior to the application deadline to 
assure sufficient time for area response.
    (b) Pre-award and ongoing technical assistance may be provided by 
the appropriate BIA agency or area office for purposes of program 
planning and design, assistance in establishing internal program 
monitoring and evaluation criteria for ongoing grant administration and 
management, and for other appropriate assistance requested.
    (c) The area social services staff shall provide technical 
assistance to grantees upon receipt of an authorized request from the 
grantee or when review of the grantee's quarterly performance reports 
shows that:
    (1) An ICWA program is yielding results that are or will be 
detrimental to the welfare of the intended Indian beneficiaries of the 
program;
    (2) A program has substantially failed to implement its goals and 
objectives;
    (3) There are serious irregularities in the fiscal management of the 
grant; or
    (4) The grantee is otherwise deficient in its program performance.
    (5) Upon receiving an authorized request from the grantee, the area 
social services staff and/or grants officer shall provide the necessary 
technical assistance to arrive at mutually determined corrective action 
measures and their actual implementation, if necessary, and the 
timeframes within which said corrective actions will be implemented.



Sec. 23.43  Authority for grant approval and execution.

    (a) Tribal government programs. The appropriate Agency 
Superintendent or Area Director may approve a grant application and its 
subsequent execution under subpart C when the intent, purpose and scope 
of the application pertains solely to reservations located within the 
service area jurisdiction of the agency or area office.
    (b) Off-reservation programs. The appropriate Area Director may 
approve a grant application and its subsequent execution under subpart D 
when the intent, purpose and scope of the grant proposal pertains to 
off-reservation Indian service populations or programs.



Sec. 23.44  Grant administration and monitoring.

    All grantees under this part shall be responsible for managing day-
to-day program operations to ensure that program performance goals are 
being achieved and to ensure compliance with the provisions of the grant 
award document and other applicable Federal requirements. Unless 
delegated to the Agency Superintendent, appropriate area office 
personnel designated by the Area Director shall be responsible for all 
grant program and fiscal monitoring responsibilities.



Sec. 23.45  Subgrants.

    A tribal government grantee may make a subgrant under subpart C of 
this part, provided that such subgrants are for the purpose for which 
the grant was made and that the grantee retains administrative and 
financial responsibility over the activity and the funds.



Sec. 23.46  Financial management, internal and external controls and

other assurances.

    Grantee financial management systems shall comply with the following 
standards for accurate, current and complete disclosure of financial 
activities.
    (a) OMB Circular A-87 (Cost principles for state and local 
governments and federally recognized Indian tribal governments).
    (b) OMB Circular A-102 (Common rule 43 CFR part 12).

[[Page 112]]

    (c) OMB Circular A-128 (Single Audit Act).
    (d) OMB Circular A-110 or 122 (Cost principles for non-profit 
organizations and tribal organizations, where applicable).
    (e) Internal control. Effective control and accountability must be 
maintained for all grants. Grantees must adequately safeguard any 
property and must ensure that it is used solely for authorized purposes.
    (f) Budget control. Actual expenditures must be compared with 
budgeted amounts for the grant. Financial information must be related to 
program performance requirements.
    (g) Source documentation. Accounting records must be supported by 
such source documentation as cancelled checks, paid bills, payrolls, 
time and attendance records, grant documents, or other information 
required by the grantee's financial management system. The Secretary or 
his/her designee may review the adequacy of the financial management 
system of an Indian tribe(s) or off-reservation Indian organization 
applying for a grant under this part.
    (h) Pursuant to 18 U.S.C. 641, whoever embezzles, steals, purloins, 
or knowingly converts to his or her use or the use of another, or 
without authority, sells, conveys or disposes of any record, voucher, 
money, or thing of value of the United States or of any department or 
agency thereof, or any property made or being made under contract for 
the United States or any department or agency thereof; or whoever 
receives, conceals, or retains the same with intent to convert it to his 
or her use or gain, knowing it to have been embezzled, stolen, 
purloined, or converted shall be fined not more than $10,000 or 
imprisoned not more than 10 years, or both; but if the value of such 
property does not exceed the sum of $100, he or she shall be fined not 
more than $1,000 or imprisoned not more than one year, or both.



Sec. 23.47  Reports and availability of information to Indians.

    (a) Any tribal government or off-reservation Indian organization 
receiving a grant under this part shall make general programmatic 
information and reports concerning that grant available to the Indian 
people it serves or represents. Access to this information may be 
requested in writing and shall be made available within 10 days of 
receipt of the request. Except as required by title IV of Pub. L. 101-
630, the Indian Child Protection and Family Violence Prevention Act, 
grantees shall hold confidential all information obtained from persons 
receiving services from the program, and shall not release such 
information without the individual's written consent. Information may be 
disclosed in a manner which does not identify or lead to the 
identification of particular individuals.
    (b) Grantees shall submit Standard Form 269 or 269A on a quarterly 
and an annual basis to report their status of funds by the dates 
specified in the grant award document.
    (c) Grantees shall furnish and submit the following written 
quarterly and annual program reports by the dates specified in the award 
document:
    (1) Quarterly and annual statistical and narrative program 
performance reports which shall include, but need not be limited to, the 
following;
    (i) A summary of actual accomplishments and significant activities 
as related to program objectives established for the grant period;
    (ii) The grantee's evaluation of program performance using the 
internal monitoring system submitted in their application;
    (iii) Reports on all significant ICWA direct service grant 
activities including but not limited to the following information:
    (A) Significant title II activities;
    (B) Data reflecting numbers of individuals referred for out-of-home 
placements, number of individuals benefiting from title II services and 
types of services provided, and
    (C) Information and referral activities.
    (iv) Child abuse and neglect statistical reports and related 
information as required by 25 U.S.C. 2434, Pub. L. 99-570, the Indian 
Alcohol and Substance Abuse Prevention and Treatment Act of 1986;
    (v) A summary of problems encountered or reasons for not meeting 
established objectives;

[[Page 113]]

    (vi) Any deliverable or product required in the grant; and
    (vii) Additional pertinent information when appropriate.
    (2) The BIA may negotiate for the provision of other grant-related 
reports not previously identified.
    (d) Events may occur between scheduled performance reporting dates 
which have significant impact on the grant-supported activity. In such 
cases, the grantee must inform the awarding agency as soon as problems, 
delays, adverse conditions, or serious incidents giving rise to 
liability become known and which will materially impair its ability to 
meet the objectives of the grant.



Sec. 23.48  Matching shares and agreements.

    (a) Grant funds provided to Indian tribes under subpart C of this 
part may be used as non-Federal matching shares in connection with funds 
provided under titles IV-B, IV-E and XX of the Social Security Act or 
such other Federal programs which contribute to and promote the purposes 
of the Act as specified in Sec. Sec. 23.3 and 23.22 (25 U.S.C. 1931).
    (b) Pursuant to 25 U.S.C. 1933, in furtherance of the establishment, 
operation, and funding of programs funded under subparts C and D of this 
part, the Secretary may enter into agreements with the Secretary of 
Health and Human Services. The latter Secretary is authorized by the Act 
to use funds appropriated for the Department of Health and Human 
Services for programs similar to those funded under subparts C and D of 
this part (25 U.S.C. 1931 and 1932), provided that authority to make 
payment pursuant to such agreements shall be effective only to the 
extent and in such amounts as may be provided in advance by 
appropriation Acts.



Sec. 23.49  Fair and uniform provision of services.

    (a) Grants awarded under this part shall include provisions assuring 
compliance with the Indian Civil Rights Act; prohibiting discriminatory 
distinctions among eligible Indian beneficiaries; and assuring the fair 
and uniform provision by the grantees of the services and assistance 
they provide to eligible Indian beneficiaries under such grants. Such 
procedures must include criteria by which eligible Indian beneficiaries 
will receive services, recordkeeping mechanisms adequate to verify the 
fairness and uniformity of services in cases of formal complaints, and 
an explanation of what rights will be afforded an individual pending the 
resolution of a complaint.
    (b) Indian beneficiaries of the services to be rendered under a 
grant shall be afforded access to administrative or judicial bodies 
empowered to adjudicate complaints, claims, or grievances brought by 
such Indian beneficiaries against the grantee arising out of the 
performance of the grant.



Sec. 23.50  Service eligibility.

    (a) Tribal government Indian child and family service programs. Any 
person meeting the definition of Indian, Indian child, Indian custodian, 
or Indian parent of any unmarried person under the age of 18 as defined 
in Sec. 23.2 is eligible for services provided under 25 U.S.C. 1931 of 
the Act. Tribal membership status shall be determined by tribal law, 
ordinance, or custom. The tribe may, under subpart C, extend services to 
nontribal family members related by marriage to tribal members, provided 
such services promote the intent and purposes of the Act. A tribe may 
also, within available resources, extend services under this part to 
individuals who are members of, or are eligible for membership in other 
Indian tribes, and who reside within the tribe's designated service 
area.
    (b) Off-reservation Indian child and family service programs and 
agreements with the Secretary of Health and Human Services pursuant to 
25 U.S.C. 1933. For purposes of eligibility for services provided under 
25 U.S.C. 1932 and 1933 of the Act, any person meeting the definition of 
Indian, Indian child, Indian custodian, or Indian parent of any 
unmarried person under the age of 18 as defined in Sec. 23.2, or the 
definition of Indian as defined in 25 U.S.C. 1603(c), shall be eligible 
for services. Tribal membership status shall be determined by tribal 
law, ordinance, or custom.

[[Page 114]]



Sec. 23.51  Grant carry-over authority.

    Unless restricted by appropriation, and contingent upon satisfactory 
program evaluations from the appropriate area or agency office for an 
existing program, grantees are authorized to carry over unliquidated 
grant funds which remain at the end of a budget period. Such funds may 
be carried over for a maximum period of two years beyond the initial 
grant funding period and must be utilized only for the intent, purpose 
and scope of the original grant. These carry-over grant funds shall not 
be reprogrammed into other appropriation activities or subactivities. 
Funds carried over into another fiscal year will be added to the 
grantee's new fiscal year funding amount.



Sec. 23.52  Grant suspension.

    (a) When a grantee has materially failed to comply and remains out 
of compliance with the terms and conditions of the grant, the grants 
officer may, after reasonable notice to the grantee and the provision of 
requested technical assistance, suspend the grant. The notice preceding 
the suspension shall include the effective date of the suspension, the 
corrective measures necessary for reinstatement of the grant and, if 
there is no immediate threat to safety, a reasonable timeframe for 
corrective action prior to actual suspension.
    (b) No obligation incurred by the grantee during the period of 
suspension shall be allowable under the suspended grant, except that the 
grants officer may at his/her discretion allow necessary and proper 
costs which the grantee could not reasonably avoid during the period of 
suspension if such costs would otherwise be allowable under the 
applicable cost principles.
    (c) Appropriate adjustments to the payments under the suspended 
grant will be made either by withholding the payments or by not allowing 
the grantee credit for disbursements which the grantee may make in 
liquidation of unauthorized obligations the grantee incurs during the 
period of suspension.
    (d) Suspension shall remain in effect until the grantee has taken 
corrective action to the satisfaction of the grants officer, or given 
assurances satisfactory to the grants officer that corrective action 
will be taken, or until the grants officer cancels the grant.



Sec. 23.53  Cancellation.

    (a) The grants officer may cancel any grant, in whole or in part, at 
any time before the date of completion whenever it is determined that 
the grantee has:
    (1) Materially failed to comply with the terms and conditions of the 
grant;
    (2) Violated the rights as specified in Sec. 23.49 or endangered 
the health, safety, or welfare of any person; or
    (3) Been grossly negligent in, or has mismanaged the handling or use 
of funds provided under the grant.
    (b) When it appears that cancellation of the grant will become 
necessary, the grants officer shall promptly notify the grantee in 
writing of this possibility. This written notice shall advise the 
grantee of the reason for the possible cancellation and the corrective 
action necessary to avoid cancellation. The grants officer shall also 
offer, and shall provide, if requested by the grantee, any technical 
assistance which may be required to effect the corrective action. The 
grantee shall have 60 days in which to effect this corrective action 
before the grants officer provides notice of intent to cancel the grant 
as provided for in paragraph (c) of this section.
    (c) Upon deciding to cancel for cause, the grants officer shall 
promptly notify the grantee in writing of that decision, the reason for 
the cancellation, and the effective date. The Area Director or his/her 
designated official shall also provide a hearing for the grantee before 
cancellation. However, the grants officer may immediately cancel the 
grant, upon notice to the grantee, if the grants officer determines that 
continuance of the grant poses an immediate threat to safety. In this 
event, the Area Director or his/her designated official shall provide a 
hearing for the grantee within 10 days of the cancellation.
    (d) The hearing referred to in paragraph (c) of this section shall 
be conducted as follows:
    (1) The grantee affected shall be notified, in writing, at least 10 
days before the hearing. The notice should give the date, time, place, 
and purpose of the hearing.

[[Page 115]]

    (2) A written record of the hearing shall be made. The record shall 
include written statements submitted at the hearing or within five days 
following the hearing.



                            Subpart F_Appeals



Sec. 23.61  Appeals from decision or action by Agency Superintendent, 

Area Director or Grants Officer.

    A grantee or prospective applicant may appeal any decision made or 
action taken by the Agency Superintendent, Area Director, or grants 
officer under subpart C or E of this part. Such an appeal shall be made 
to the Assistant Secretary who shall consider the appeal in accordance 
with 25 CFR 2.20 (c) through (e). Appeal procedures shall be as set out 
in part 2 of this chapter.



Sec. 23.62  Appeals from decision or action by Area Director under 

subpart D.

    A grantee or applicant may appeal any decision made or action taken 
by the Area Director under subpart D that is alleged to be in violation 
of the U.S. Constitution, Federal statutes, or the regulations of this 
part. These appeals shall be filed with the Interior Board of Indian 
Appeals in accordance with 25 CFR 2.4 (e); 43 CFR 4.310 through 4.318 
and 43 CFR 4.330 through 4.340. However, an applicant may not appeal a 
score assigned to its application or the amount of grant funds awarded.



Sec. 23.63  Appeals from inaction of official.

    A person or persons whose interests are adversely affected, or whose 
ability to protect such interests is impeded by the failure of an 
official to act on a request to the official, may make the official's 
inaction the subject of an appeal under part 2 of this chapter.



                   Subpart G_Administrative Provisions



Sec. 23.71  Recordkeeping and information availability.

    (a)(1) Any state court entering a final decree or adoptive order for 
any Indian child shall provide the Secretary or his/her designee within 
30 days a copy of said decree or order, together with any information 
necessary to show:
    (i) The Indian child's name, birthdate and tribal affiliation, 
pursuant to 25 U.S.C. 1951;
    (ii) Names and addresses of the biological parents and the adoptive 
parents; and
    (iii) Identity of any agency having relevant information relating to 
said adoptive placement.
    (2) To assure and maintain confidentiality where the biological 
parent(s) have by affidavit requested that their identity remain 
confidential, a copy of such affidavit shall be provided to the 
Secretary or his/her designee. Information provided pursuant to 25 
U.S.C. 1951(a) is not subject to the Freedom of Information Act (5 
U.S.C. 552), as amended. The Secretary or his/her designee shall ensure 
that the confidentiality of such information is maintained. The address 
for transmittal of information required by 25 U.S.C. 1951(a) is: Chief, 
Division of Social Services, Bureau of Indian Affairs, 1849 C Street, 
NW., Mail Stop 310-SIB, Washington, DC 20240. The envelope containing 
all such information should be marked ``Confidential.'' This address 
shall be sent to the highest court of appeal, the Attorney General and 
the Governor of each state. In some states, a state agency has been 
designated to be repository for all state court adoption information. 
Where such a system is operative, that agency may assume reporting 
responsibilities for the purposes of the Act.
    (b) The Division of Social Services, Bureau of Indian Affairs, is 
authorized to receive all information and to maintain a central file on 
all state Indian adoptions. This file shall be confidential and only 
designated persons shall have access to it. Upon the request of an 
adopted Indian individual over the age of 18, the adoptive or foster 
parents of an Indian child, or an Indian tribe, the Division of Social 
Services shall disclose such information as may be necessary for 
purposes of tribal enrollment or determining any rights or benefits 
associated with tribal membership, except the names of the biological 
parents where an affidavit of confidentiality has been filed, to those 
persons eligible under the Act to request such

[[Page 116]]

information. The chief tribal enrollment officer of the BIA is 
authorized to disclose enrollment information relating to an adopted 
Indian child where the biological parents have by affidavit requested 
anonymity. In such cases, the chief tribal enrollment officer shall 
certify the child's tribe, and, where the information warrants, that the 
child's parentage and other circumstances entitle the child to 
enrollment consideration under the criteria established by the tribe.



                  Subpart H_Assistance to State Courts



Sec. 23.81  Assistance in identifying witnesses.

    Upon the request of a party in an involuntary Indian child custody 
proceeding or of a court, the Secretary or his/her designee shall assist 
in identifying qualified expert witnesses. Such requests for assistance 
shall be sent to the Area Director designated in Sec. 23.11(c). The BIA 
is not obligated to pay for the services of such expert witnesses.



Sec. 23.82  Assistance in identifying language interpreters.

    Upon the request of a party in an Indian child custody proceeding or 
of a court, the Secretary or his/her designee shall assist in 
identifying language interpreters. Such requests for assistance should 
be sent to the Area Director designated in Sec. 23.11(c). The BIA is 
not obligated to pay for the services of such language interpreters.



Sec. 23.83  Assistance in locating biological parents of Indian child 

after termination of adoption.

    Upon the request of a child placement agency, the court or an Indian 
tribe, the Secretary or his/her designee shall assist in locating the 
biological parents or prior Indian custodians of an adopted Indian child 
whose adoption has been terminated pursuant to 25 U.S.C. 1914. Such 
requests for assistance should be sent to the Area Director designated 
in Sec. 23.11(c).



PART 26_EMPLOYMENT ASSISTANCE FOR ADULT INDIANS--Table of Contents




 Subpart A_Definitions, Scope of the Employment Assistance Program and 
                         Information Collection

Sec.
26.1 Definitions.
26.2 Scope of the Employment Assistance Program.
26.3 Information collection.

                   Subpart B_Administrative Procedures

26.4 Filing applications.
26.5 Selection of applicants.
26.6 Program services and client participation.
26.7 Financial assistance for program participants.

                            Subpart C_Appeals

26.8 Appeals.

    Authority: 25 U.S.C. 13.

    Source: 49 FR 2098, Jan. 18, 1984, unless otherwise noted.



 Subpart A_Definitions, Scope of the Employment Assistance Program and 
                         Information Collection



Sec. 26.1  Definitions.

    (a) Agency office means the current organization unit of the Bureau 
which provides direct services to the governing body or bodies and 
members of one or more specified Indian tribes.
    (b) Appeal means a written request for correction of an action or 
decision claimed to violate a person's legal rights or privileges as 
provided in part 2 of this chapter.
    (c) Applicant means an individual applying under this part.
    (d) Application means the process through which a request is made 
for assistance or services.
    (e) Area Director means the Bureau official in charge of an Area 
Office.
    (f) Contract office means the office established by a tribe or 
tribes who have a contract to administer the Employment Assistance 
Program.
    (g) Indian means any person of Indian or Alaska native descent who 
is an enrolled member of any of those tribes listed or eligible to be 
listed in the Federal Register pursuant to 25 CFR

[[Page 117]]

83.6 as recognized by and receiving services from the Bureau of Indian 
Affairs or a descendant of one-fourth degree or more Indian blood of an 
enrolled member; and any person not a member of one of the listed or 
eligible to be listed tribes who possesses at least one-half degree of 
Indian blood which is not derived from a tribe whose relationship is 
terminated by an Act of Congress.
    (h) Indian tribe means any Indian tribe, band, nation or other 
organized group or community including any Alaska Native Village which 
is recognized by the Secretary of the Interior as having special rights 
and responsibilities and is recognized as eligible for the services 
provided by the United States to Indians because of their status as 
Indians.
    (i) Near reservation means those areas or communities adjacent or 
contiguous to reservations which are designated by the Assistant 
Secretary upon recommendation of the local Bureau superintendent, which 
recommendation shall be based upon agreement with the tribal governing 
body of those reservations, as locales appropriate for the extension of 
financial and/or social services, on the basis of such general criteria 
as:
    (1) Number of Indian people native to the reservation residing in 
the area,
    (2) Geographical proximity of the area to the reservation, and
    (3) Administrative feasibility of providing an adequate level of 
services to the area. The Assistant Secretary shall designate each area 
and publish the designations in the Federal Register.
    (j) Reservation means any bounded geographical area established or 
created by treaty, statute, executive order or interpreted by court 
decision and over which a federally recognized Indian Tribal entity may 
exercise certain jurisdiction.
    (k) Superintendent means the Superintendent or Officer in Charge of 
any one of the Agency offices of the Bureau of Indian Affairs or his/her 
authorized representative.
    (l) Tribal governing body means the recognized entity empowered to 
exercise the governmental authority of a federally recognized tribe.



Sec. 26.2  Scope of the Employment Assistance Program.

    The purpose of the Employment Assistance Program is to assist Indian 
people who have a job skill to obtain and retain permanent employment. 
Within that framework, the program provides services to eligible 
Indians, as provided in Sec. 26.5, including vocational counseling and 
employment services on reservations and at other home areas, in 
communities near reservations and in off-reservation areas. Support 
services are also included, as provided in Sec. 26.6.



Sec. 26.3  Information collection.

    The information collection requirements contained in Sec. Sec. 26.4 
and 26.6 have been approved by the Office of Management and Budget (OMB) 
under 44 U.S.C. 3504(h) and are assigned clearance numbers 1076-0062 and 
1076-0061. Information necessary for an application for employment 
assistance will be submitted on an application form which may be 
obtained at a local Bureau of Indian Affairs Agency or tribal program 
contractor office. This information is being collected for the purpose 
of applying for Federal assistance. The information will be used to 
determine if an Indian person is eligible to participate in this program 
and to determine the amount of assistance needed. The obligation to 
respond is a requirement to obtain the benefits.



                   Subpart B_Administrative Procedures



Sec. 26.4  Filing applications.

    (a) Application for Employment Assistance services must be filed at 
Bureau of Indian Affairs Agency offices, or at facilities under contract 
with the Bureau or contract offices which are located on or near 
reservations or other geographic areas of eligibility. Applications are 
approved by the Agency Superintendent or designated contractor. An 
eligible applicant should apply, be funded and receive services at the 
servicing office nearest to his/her residence at the time of 
application.
    (b) For clarity and uniformity, application forms used will be in 
accordance

[[Page 118]]

with the requirements of the Paperwork Reduction Act, section 3504(h) of 
Pub. L. 96-511.



Sec. 26.5  Selection of applicants.

    (a) Applicants must be adult Indians residing on or near Indian 
reservations and demonstrate a need for employment services.
    (b) An applicant must be unemployed or underemployed in order to 
receive employment services.
    (c) Selection of applicants shall be made without regard to sex or 
marital status.
    (d) Only those applicants who declare a desire and intent to accept 
and retain full time permanent employment at the employment location 
chosen shall be selected, with the exception of those individuals 
participating in the temporary summer placement program as provided in 
Sec. 26.6(b)(1).
    (e) Repeat employment services involving expenditure of grant funds 
are to be determined on an individual basis, considering ability, prior 
performance, need and motivation. No client shall automatically be 
entitled to funded repeat services. No more than two (2) funded repeat 
services for a client shall be allowed. Exceptions may be made if 
additional funded services not provided would create extreme hardship on 
the client. Applications are to be submitted with proper justification 
for repeat service to the Area Director for approval or disapproval.



Sec. 26.6  Program services and client participation.

    (a) When a request is made for employment services, the applicant 
shall be offered assistance to assess his/her job skills and work 
experience and to relate these to available employment opportunities. In 
many cases, applicants for placement services will already possess 
training skills, and/or experience sufficient for entry into job 
placement. In other cases, applicants may be encouraged to consider 
further education or training options as a preliminary to permanent 
employment. In any case, vocational counseling appropriate to the 
individual situation shall be made available.
    (b) Services may be provided either with or without the expenditure 
of financial grants depending upon the type of service requested and the 
need for financial assistance. Funds shall not be provided to finance 
temporary employment except for the following:
    (1) High school students who are at least 17 years of age or college 
students participating in summer placement programs to gain work 
experience and temporary income may receive limited funding as needed to 
enable such persons to secure and hold summer jobs. This special service 
will not count against the number of services allowed under Sec. 
26.5(e).
    (2) Persons who have moved to an off-reservation area for permanent 
employment, through services of the Employment Assistance program, may 
at times be required to accept temporary employment until permanent 
employment is available. Such persons may receive funds as needed within 
established limitations and justifiable circumstances, as allowed by the 
Area Director, until permanent employment is found and/or the need is 
met.
    (c) Permanent employment shall normally be defined as employment 
which is generally anticipated to be of one year or more in duration. 
Employment in the construction or other trades where moving from one job 
to another is generally required of persons engaged in such occupations 
shall be considered as permanent employment.
    (d) In those cases where applicants apply and are selected for 
employment services in off-reservation urban locations, a variety of 
services may be provided, based upon individual client needs and 
requests for assistance. These may include advice in rental of housing, 
shopping, money management, community adjustment, counseling, applying 
for and seeking employment, and emergency financial assistance for up to 
six months from the date of entry into this program. Continuing non-
financial assistance, as needed, shall remain indefinitely available.
    (e) Assistance as needed may be provided to enable clients who move 
for employment to an off-reservation urban or non-urban area to accept a

[[Page 119]]

specific job offer. In such cases, however, transportation or financial 
assistance may be provided only after confirmation has been obtained 
from the employer, giving details of employment, including the 
following:
    (1) Job title,
    (2) Beginning wage,
    (3) Date to start work,
    (4) First payday,
    (5) First full payday, and
    (6) A statement that the job is anticipated to be of a permanent 
nature.



Sec. 26.7  Financial assistance for program participants.

    (a) Individuals or families with a family member participating in 
the Employment Assistance program may be granted financial assistance, 
as needed, based upon rates established by the Area Director for the 
respective areas or jurisdictions within those areas.
    (b) Not more than thirty (30) percent of the funds appropriated for 
any program year may be used to pay for the costs of administration. 
Administrative costs include salaries and fringe benefits of direct 
program administrative positions such as program director or program 
officer, program/financial analyst, labor market analyst, clerical 
personnel, travel costs, materials, supplies, equipment, space and 
utilities. The remaining seventy (70) percent of funds available may be 
used for transportation and subsistence enroute to employment location; 
subsistence for one month or until the first paycheck from employment is 
received; emergency assistance is allowed where verified emergencies 
justify such grants and must have Area Director approval; and supportive 
services. Supportive services includes tools for employment, initial 
union dues, transportation of household effects, security and safety 
deposits, personal appearance and housewares, child care, and costs of 
employment counselors engaged in providing services to applicants 
(salaries, fringe benefits and travel costs).
    (c) Marital status of applicants is not a consideration for 
determining eligibility for services, but this factor is a consideration 
for determining appropriate subsistence grants. Proof of a legal 
relationship requiring support shall be required as a basis for 
application of family subsistence rates. In the case of married persons, 
proof of marriage shall be required to satisfy this requirement.
    (d) Financial assistance shall not be used to supplement the income 
of a person already employed.



                            Subpart C_Appeals



Sec. 26.8  Appeals.

    The decision of any Bureau official under this part can be appealed 
pursuant to the procedures in 25 CFR part 2.



PART 27_VOCATIONAL TRAINING FOR ADULT INDIANS--Table of Contents




  Subpart A_Definitions, Scope of the Vocational Training Program and 
                         Information Collection

Sec.
27.1 Definitions.
27.2 Scope of the vocational training program.
27.3 Information collection.

                   Subpart B_Administrative Procedures

27.4 Filing applications.
27.5 Selection of applicants.
27.6 Satisfactory progress during training.
27.7 Approval of courses for vocational training at institutions.
27.8 Approval of apprenticeship training.
27.9 Approval of on-the-job training.
27.10 Financial assistance for trainees.
27.11 Contracts and agreements.

                            Subpart C_Appeals

27.12 Appeals.

    Authority: Sec. 1, Pub. L. 84-959, 70 Stat. 986 as amended by Pub. 
L. 88-230, 77 Stat. 471 (25 U.S.C. 309).

    Source: 49 FR 2101, Jan. 18, 1984, unless otherwise noted.



  Subpart A_Definitions, Scope of the Vocational Training Program and 
                         Information Collection



Sec. 27.1  Definitions.

    (a) Agency office means the current organization unit of the Bureau 
which

[[Page 120]]

provides direct services to the governing body or bodies and members of 
one or more specified Indian tribes.
    (b) Appeal means a written request for correction of an action or 
decision claimed to violate a person's legal rights or privileges as 
provided in part 2 of this chapter.
    (c) Applicant means an individual applying under this part.
    (d) Application means the process through which a request is made 
for assistance or services.
    (e) Area Director means the Bureau official in charge of an Area 
Office or his/her authorized representative.
    (f) Assistant Secretary means the Assistant Secretary of the 
Interior for Indian Affairs or his/her authorized representative.
    (g) Contract office means the office established by a tribe or 
tribes who have a contract to administer the adult vocational training 
program.
    (h) Full time institutional training is:
    (1) An institutional trade or technical course offered on a clock-
hour basis below the college level, involving shop practices as an 
integral part thereof when a minimum of thirty (30) hours per week of 
attendance is required with not more than 2\1/2\ hours of rest periods 
per week allowed.
    (2) An institutional vocational course offered on a clock-hour basis 
below the college level in which theoretical or classroom instruction 
predominates when a minimum of twenty-five (25) hours per week net of 
instruction is required, or
    (3) An institutional undergraduate vocational course offered by a 
college or university on a quarter or semester-hour basis when a minimum 
of twelve (12) semester credit hours or its equivalent is required.
    (i) Indian means any person of Indian or Alaska native descent who 
is an enrolled member of any of those tribes listed or eligible to be 
listed in the Federal Register pursuant to 25 CFR 83.6 as recognized by 
and receiving services from the Bureau of Indian Affairs or a descendant 
of one-fourth degree or more Indian blood of an enrolled member and any 
person not a member of one of the listed or eligible to be listed tribes 
who possesses at least one-half degree of Indian blood which is not 
derived from a tribe whose relationship is terminated by an Act of 
Congress.
    (j) Indian tribe means any Indian tribe, band, nation or other 
organized group or community, including any Alaska native village, which 
is recognized by the Secretary of the Interior as having special rights 
and responsibilities and is recognized as eligible for the services 
provided by the United States to Indians because of their status as 
Indians.
    (k) Near reservation means those areas or communities adjacent or 
contiguous to reservations which are designated by the Assistant 
Secretary upon recommendation of the local Bureau superintendent, which 
recommendation shall be based upon agreement with the tribal governing 
body of those reservations, as locales appropriate for the extension of 
financial assistance and/or social services, on the basis of such 
general criteria as:
    (1) Number of Indian people native to the reservation residing in 
the area,
    (2) Geographical proximity of the area to the reservation, and
    (3) Administrative feasibility of providing an adequate level of 
services to the area. The Assistant Secretary shall designate each area 
and publish the designations in the Federal Register.
    (l) Reservation means any bounded geographical area established or 
created by treaty, statute, executive order or as interpreted by court 
decision and over which a Federally recognized Indian tribal entity may 
exercise certain jurisdiction.
    (m) Superintendent means the Superintendent or Officer in Charge of 
any of the Agency offices of the Bureau of Indian Affairs or his/her 
authorized representative.
    (n) Tribal governing body means the recognized entity empowered to 
exercise the governmental authority of a Federally recognized tribe.



Sec. 27.2  Scope of the vocational training program.

    The purpose of the vocational training program is to assist Indian 
people to acquire the job skills necessary for full time satisfactory 
employment. Within that framework, the program provides testing, 
vocational counseling

[[Page 121]]

or guidance to assist program participants to make career choices 
relating personal assets to training option and availability of jobs in 
the labor market. The program provides for full time institutional 
training in any vocational or trade school as provided in Sec. 27.7. 
Apprenticeship and on-the-job training are also provided. Institutional, 
apprenticeship, or on-the-job training courses shall not exceed twenty-
four (24) months in length, with the exception that Registered Nurses 
training may be for periods not to exceed thirty-six (36) months. 
Individual program recipients may not receive more than twenty-four (24) 
months of full-time training, except that Registered Nursing students 
may receive not more than thirty-six (36) months of training.



Sec. 27.3  Information collection.

    The information collection requirements contained in Sec. Sec. 
27.4, 27.6 and 27.9 have been approved by the Office of Management and 
Budget (OMB) under 44 U.S.C. 3504(h) and are assigned clearance numbers 
1076-0062, 1076-0063 and 1076-0069. Information necessary for an 
application for vocational training assistance will be submitted on an 
application form which may be obtained at a local Bureau of Indian 
Affairs Agency or tribal program contractor office. This information is 
being collected for the purpose of applying for Federal assistance. The 
information will be used to determine if an Indian individual is 
eligible to participate in this program and to determine the amount of 
assistance needed. The obligation to respond is a requirement to obtain 
the benefits.



                   Subpart B_Administrative Procedures



Sec. 27.4  Filing applications.

    (a) Applications for adult vocational training services must be 
filed at Bureau of Indian Affairs agency offices, or at facilities under 
contract with the Bureau or contract offices located on or near 
reservations or other geographic areas of eligibility. Applications are 
approved by the Agency Superintendent or designated contractor. An 
eligible applicant should apply, be funded and receive services at the 
servicing office nearest to his/her residence at the time of 
application.
    (b) For clarity and uniformity, application forms used will be in 
accordance with the requirements of the Paperwork Reduction Act, section 
3504(h) of Pub. L. 96-511.



Sec. 27.5  Selection of applicants.

    (a) Applicants must be adult Indians residing on or near Indian 
reservations.
    (b) Eligible individuals shall be at least eighteen (18) years of 
age, except that high school graduates shall be eligible at the age of 
seventeen (17) years. Also, while the program is designed primarily for 
persons between the ages of eighteen (18) and thirty-five (35), persons 
over the age of thirty-five (35) shall be eligible, assuming training 
and permanent employment to be otherwise feasible in terms of health and 
physical capability.
    (c) An applicant must be in need of training in order to obtain 
reasonable and satisfactory employment or is underemployed and without 
additional training would result in extreme hardship for the applicant, 
and is in need of financial assistance in order to obtain such training. 
It must also be feasible for the applicant to pursue training.
    (d) Selection of applicants shall be made without regard to sex or 
marital status, providing they meet the requirements of paragraphs (a), 
(b), and (c) of this section. Non-Indian spouses shall not be eligible 
for training.
    (e) No more than two (2) repeat training services will be allowed. 
Repeat training services will be on a lower priority than the initial 
service and will be determined on an individual basis, considering need, 
ability, prior performance and present motivation of the applicant. In 
order to be in need of repeat institutional training, an applicant must 
be unemployed, underemployed, or unable to work in his/her primary 
occupation due to physical or other disabilities. Time spent in on-the-
job training programs will be deducted from the maximum of institutional 
training eligibility.
    (f) Only those applicants who willingly declare intent to accept 
full time employment as soon as possible after completion of training 
shall be selected. Plans may subsequently

[[Page 122]]

change, but the intent of the training program is preparation for 
employment, and this must be the initial intent of program participants. 
The program is not meant to serve as a preliminary to immediate further 
education.



Sec. 27.6  Satisfactory progress during training.

    An individual who enters training pursuant to the provisions of this 
part is required to make satisfactory progress in training. Individuals 
in institutional vocational training courses are required to give 
evidence of progress by authorizing the institution attended to provide 
grade and/or progress reports to the appropriate Bureau of Indian 
Affairs or contract office. Program participants shall maintain a 
reasonable standard of conduct. Failure to meet these requirements due 
to reasons within the trainee's control may result in termination of 
training benefits.



Sec. 27.7  Approval of courses for vocational training at institutions.

    (a) A course of vocational training at any institution, public or 
private, offering vocational training may be approved by the Assistance 
Secretary; provided:
    (1) The institution is accredited by a recognized national regional 
accrediting association; or
    (2) The institution is approved for training by a state agency 
authorized to make such approvals; and
    (3) It is determined that there is reasonable certainty of 
employment for graduates of the institution in their respective fields 
of training.
    (b) Cooperative education (a combination of classroom theory with 
related practical job experience) is considered as valuable learning 
experience and is specifically allowed and encouraged.
    (c) Vocational training courses offered through Indian tribal 
governments need not be accredited but must show reasonable expectation 
of leading to employment and be approved by the Area Director.



Sec. 27.8  Approval of apprenticeship training.

    A program of apprenticeship training may be approved when such 
training:
    (a) Is offered by a corporation or association which has furnished 
such training to bona fide apprentices for at least one year preceding 
participation in this program;
    (b) Is under the supervision of a State apprenticeship agency, a 
State Apprenticeship Council, or the Federal Apprenticeship Training 
Services;
    (c) Leads to an occupation which requires the use of skills that 
normally are learned through training on the job and employment which is 
based upon training on the job rather than upon such elements as length 
of service, normal turnover, personality, and other personal 
characteristics; and
    (d) Is identified expressly as apprenticeship training by the 
establishment offering it.



Sec. 27.9  Approval of on-the-job training.

    (a) On-the-job training contracts shall be approved only by the 
official to whom such authority has been delegated in the 10 BIAM.
    (b) On-the-job training may be approved when such training is 
offered by a corporation, small business, association, tribe or tribal 
enterprise which provides an on-the-job training program offering 
definite potential for skilled permanent employment.
    (c) Yearly on-the-job training contractual agreements with a 
specific contractor shall not be renewed beyond the second year without 
review and written approval from the Assistant Secretary-Indian Affairs. 
Extension of contracts exceeding two years will be based upon a 
contractors demonstrated expansion of the enterprise, need for 
additional trainees, and placement of trainees completing the program.
    (d) Reimbursement to the on-the-job training contractor may include 
one-half of the hourly wage paid during the training period with the 
contractor paying the other half. The hourly rate must be at least the 
established minimum wage under the Fair Labor Standards Act of 1938, as 
amended.

[[Page 123]]



Sec. 27.10  Financial assistance for trainees.

    (a) Applicants entering full-time training under this part may be 
granted financial assistance as needed, based upon rates established by 
the Area Director for the respective areas, or jurisdictions within 
those areas. Trainees may be assisted to secure educational grants from 
other sources for which they qualify. Such income shall be considered in 
computing amounts of financial assistance to be provided by the Bureau 
of Indian Affairs. Marital status of trainees is not a consideration for 
determining eligibility for training, but this factor is a consideration 
in determining appropriate subsistence grants. Proof of a legal 
relationship requiring support shall be required as a basis for 
application of family subsistence rates. In the case of married persons, 
proof of marriage shall be required to satisfy this requirement. 
Financial assistance may be provided for transportation and subsistence 
enroute to training; tuition and related training costs; subsistence 
while in training; emergency assistance is allowed where verified 
emergencies justify such grants and must have Area Director approval; 
and supportive services while in training. Supportive services includes 
tools for employment, initial union dues, transportation of household 
effects, security and safety deposits, personal appearance and 
housewares, child care, and cost of vocational training counselors 
engaged in providing services to trainees (salaries, fringe benefits and 
travel costs).
    (b) Not more than thirty (30) percent of the funds appropriated for 
any program year may be used to pay for the costs of administration. 
Administrative costs include salaries and fringe benefits of direct 
program administrative positions such as program director or program 
officer, program/financial analyst, labor market analyst, clerical 
personnel, travel costs, materials, supplies, equipment, space and 
utilities.



Sec. 27.11  Contracts and agreements.

    Training facilities and services required for programs of vocational 
training may be arranged through contracts or agreements with agencies, 
establishments or organizations. These may include:
    (a) Indian tribal governing bodies,
    (b) Appropriate Federal, State or local government agencies,
    (c) Public or private schools which have a recognized reputation in 
vocational education as successfully obtaining employment for graduates 
in the fields of training approved by the Assistant Secretary or his/her 
authorized representative for purposes of the program,
    (d) Educational firms to operate residential training centers, or
    (e) Corporations and associations or small business establishments 
with apprenticeship or on-the-job training programs leading to skilled 
employment.



                            Subpart C_Appeals



Sec. 27.12  Appeals.

    The decisions of any Bureau official under this part can be appealed 
pursuant to the procedures in 25 CFR part 2.

[[Page 124]]



                         SUBCHAPTER E_EDUCATION





PART 30_ADEQUATE YEARLY PROGRESS--Table of Contents




Sec.
30.100 What is the purpose of this part?
30.101 What definitions apply to terms in this part?

               Subpart A_Defining Adequate Yearly Progress

30.102 Does the Act require the Secretary of the Interior to develop a 
          definition of AYP for Bureau-funded schools?
30.103 Did the Committee consider a separate Bureau definition of AYP?
30.104 What is the Secretary's definition of AYP?

                      Alternative Definition of AYP

30.105 Can a tribal governing body or school board use another 
          definition of AYP?
30.106 How does a tribal governing body or school board propose an 
          alternative definition of AYP?
30.107 What must a tribal governing body or school board include in its 
          alternative definition of AYP?
30.108 May an alternative definition of AYP use parts of the Secretary's 
          definition?

                          Technical Assistance

30.109 Will the Secretary provide assistance in developing an 
          alternative AYP definition?
30.110 What is the process for requesting technical assistance to 
          develop an alternative definition of AYP?
30.111 When should the tribal governing body or school board request 
          technical assistance?

                   Approval of Alternative Definition

30.113 How does the Secretary review and approve an alternative 
          definition of AYP?

              Subpart B_Assessing Adequate Yearly Progress

30.114 Which students must be assessed?
30.115 Which students' performance data must be included for purposes of 
          AYP?
30.116 If a school fails to achieve its annual measurable objectives, 
          what other methods may it use to determine whether it made 
          AYP?

           Subpart C_Failure To Make Adequate Yearly Progress

30.117 What happens if a Bureau-funded school fails to make AYP?
30.118 May a Bureau-funded school present evidence of errors in 
          identification before it is identified for school improvement, 
          corrective action, or restructuring?
30.119 Who is responsible for implementing required remedial actions at 
          a Bureau-funded school identified for school improvement, 
          corrective action or restructuring?
30.120 Are Bureau-funded schools exempt from school choice and 
          supplemental services when identified for school improvement, 
          corrective action, and restructuring?
30.121 What funds are available to assist schools identified for school 
          improvement, corrective action, or restructuring?
30.122 Must the Bureau assist a school it identified for school 
          improvement, corrective action, or restructuring?
30.123 What is the Bureau's role in assisting Bureau-funded schools to 
          make AYP?
30.124 Will the Department of Education provide funds for schools that 
          fail to meet AYP?
30.125 What happens if a State refuses to allow a school access to the 
          State assessment?

              Subpart D_Responsibilities and Accountability

30.126 What is required for the Bureau to meet its reporting 
          responsibilities?
30.150 Information Collection.

    Authority: Public Law 107-110, 115 Stat. 1425.

    Source: 70 FR 22200, Apr. 28, 2005, unless otherwise noted.



Sec. 30.100  What is the purpose of this part?

    This part establishes for schools receiving Bureau funding a 
definition of ``Adequate Yearly Progress (AYP).'' Nothing in this part:
    (a) Diminishes the Secretary's trust responsibility for Indian 
education or any statutory rights in law;
    (b) Affects in any way the sovereign rights of tribes; or
    (c) Terminates or changes the trust responsibility of the United 
States to Indian tribes or individual Indians.

[[Page 125]]



Sec. 30.101  What definitions apply to terms in this part?

    Act means the No Child Left Behind Act, Public Law 107-110, enacted 
January 8, 2002. The No Child Left Behind Act reauthorizes and amends 
the Elementary and Secondary Education Act (ESEA) and amends the 
Education Amendments of 1978.
    Bureau means the Bureau of Indian Affairs in the Department of the 
Interior.
    Department means the Department of the Interior.
    OIEP means the Office of Indian Education Programs in the Bureau of 
Indian Affairs.
    School means a school funded by the Bureau of Indian Affairs.
    Secretary means the Secretary of the Interior or a designated 
representative.
    Secretaries means the Secretary of the Interior and the Secretary of 
Education.



               Subpart A_Defining Adequate Yearly Progress



Sec. 30.102  Does the Act require the Secretary of the Interior to

develop a definition of AYP for Bureau-funded schools?

    Yes, the Act requires the Secretary to develop a definition of AYP 
through negotiated rulemaking. In developing the Secretary's definition 
of AYP, the No Child Left Behind Negotiated Rulemaking Committee 
(Committee) considered a variety of options. In choosing the definition 
in Sec. 30.104, the Committee in no way intended to diminish the 
Secretary's trust responsibility for Indian education or any statutory 
rights in law. Nothing in this part:
    (a) Affects in any way the sovereign rights of tribes; or
    (b) Terminates or changes the trust responsibility of the United 
States to Indian tribes or individual Indians.



Sec. 30.103  Did the Committee consider a separate Bureau definition 

of AYP?

    Yes, the Committee considered having the Bureau of Indian Affairs 
develop a separate Bureau definition of AYP. For a variety of reasons, 
the Committee reached consensus on the definition in Sec. 30.104. This 
definition is in no way intended to diminish the United States' trust 
responsibility for Indian education nor is it intended to give States 
authority over Bureau-funded schools.



Sec. 30.104  What is the Secretary's definition of AYP?

    The Secretary defines AYP as follows. The definition meets the 
requirements in 20 U.S.C. 6311(b).
    (a) Effective in the 2005-2006 school year, the academic content and 
student achievement standards, assessments, and the definition of AYP 
are those of the State where the school is located, unless an 
alternative definition of AYP is proposed by the tribal governing body 
or school board and approved by the Secretary.
    (1) If the geographic boundaries of the school include more than one 
State, the tribal governing body or school board may choose the State 
definition it desires. Such decision shall be communicated to the 
Secretary in writing.
    (2) This section does not mean that the school is under the 
jurisdiction of the State for any purpose, rather a reference to the 
State is solely for the purpose of using the State's assessment, 
academic content and student achievement standards, and definition of 
AYP.
    (3) The use of the State's definition of AYP does not diminish or 
alter the Federal Government's trust responsibility for Indian 
education.
    (b) School boards or tribal governing bodies may seek a waiver that 
may include developing their own definition of AYP, or adopting or 
modifying an existing definition of AYP that has been accepted by the 
Department of Education. The Secretary is committed to providing 
technical assistance to a school, or a group of schools, to develop an 
alternative definition of AYP.

                      Alternative Definition of AYP



Sec. 30.105  May a tribal governing body or school board use another 

definition of AYP?

    Yes. A tribal governing body or school board may waive all or part 
of the Secretary's definition of academic content and achievement 
standards, assessments, and AYP. However, unless an alternative 
definition is approved

[[Page 126]]

under Sec. 30.113, the school must use the Secretary's definition of 
academic content and achievement standards, assessments, and AYP.



Sec. 30.106  How does a tribal governing body or school board propose

an alternative definition of AYP?

    If a tribal governing body or school board decides that the 
definition of AYP in Sec. 30.104 is inappropriate, it may decide to 
waive all or part of the definition. Within 60 days of the decision to 
waive, the tribal governing body or school board must submit to the 
Secretary a proposal for an alternative definition of AYP. The proposal 
must meet the requirements of 20 U.S.C. 6311(b) and 34 CFR 200.13-
200.20, taking into account the unique circumstances and needs of the 
school or schools and the students served.



Sec. 30.107  What must a tribal governing body or school board include 

in its alternative definition of AYP?

    (a) An alternative definition of AYP must meet the requirements of 
20 U.S.C. 6311(b)(2) of the Act and 34 CFR 200.13-200.20, taking into 
account the unique circumstances and needs of the school or schools and 
the students served.
    (b) In accordance with 20 U.S.C. 6311(b) of the Act and 34 CFR 
200.13-200.20, an alternative definition of AYP must:
    (1) Apply the same high standards of academic achievement to all 
students;
    (2) Be statistically valid and reliable;
    (3) Result in continuous and substantial academic improvement for 
all students;
    (4) Measure the progress of all students based on a high-quality 
assessment system that includes, at a minimum, academic assessments in 
mathematics and reading or language arts;
    (5) Measure progress separately for reading or language arts and for 
mathematics;
    (6) Unless disaggregation of data cannot yield statistically 
reliable information or reveals personally identifiable information, 
apply the same annual measurable objectives to each of the following:
    (i) The achievement of all students; and
    (ii) The achievement of economically disadvantaged students, 
students from major racial or ethnic groups, students with disabilities, 
and students with limited English proficiency;
    (7) Establish a starting point;
    (8) Create a timeline to ensure that all students are proficient by 
the 2013-2014 school year;
    (9) Establish annual measurable objectives;
    (10) Establish intermediate goals;
    (11) Include at least one other academic indicator which, for any 
school with a 12th grade, must be graduation rate; and
    (12) Ensure that at least 95 percent of the students enrolled in 
each group under Sec. 30.107(b)(6) are assessed.
    (c) If a Bureau-funded school's alternative definition of AYP does 
not use a State's academic content and student achievement standards and 
academic assessments, the school must include with its alternative 
definition the academic standards and assessment it proposes to use. 
These standards and assessments must meet the requirements in 20 U.S.C. 
6311(b) and 34 CFR 200.1-200.9.



Sec. 30.108  May an alternative definition of AYP use parts of the

Secretary's definition?

    Yes, a tribal governing body or school board may take part of the 
Secretary's definition and propose to waive the remainder. The proposed 
alternative definition of AYP must, however, include both the parts of 
the Secretary's AYP definition the tribal governing body or school board 
is adopting and those parts the tribal governing body or school board is 
proposing to change.

                          Technical Assistance



Sec. 30.109  Will the Secretary provide assistance in developing an 

alternative AYP definition?

    Yes, the Secretary through the Bureau, shall provide technical 
assistance either directly or through contract to the tribal governing 
body or the school board in developing an alternative AYP definition. A 
tribal governing body or school board needing assistance must submit a 
request to the Director of

[[Page 127]]

OIEP under Sec. 30.110. In providing assistance, the Secretary may 
consult with the Secretary of Education and may use funds supplied by 
the Secretary of Education in accordance with 20 U.S.C. 7301.



Sec. 30.110  What is the process for requesting technical assistance 

to develop an alternative definition of AYP?

    (a) The tribal governing body or school board requesting technical 
assistance to develop an alternative definition of AYP must submit a 
written request to the Director of OIEP, specifying the form of 
assistance it requires.
    (b) The Director of OIEP must acknowledge receipt of the request for 
technical assistance within 10 days of receiving the request.
    (c) No later than 30 days after receiving the original request, the 
Director of OIEP will identify a point of contact. This contact will 
immediately begin working with the tribal governing body or school board 
to jointly develop the specifics of the technical assistance, including 
identifying the form, substance, and timeline for the assistance.



Sec. 30.111  When should the tribal governing body or school board 

request technical assistance?

    In order to maximize the time the tribal governing body or school 
board has to develop an alternative definition of AYP and to provide 
full opportunity for technical assistance, the tribal governing body or 
school board should request technical assistance before formally 
notifying the Secretary of its intention to waive the Secretary's 
definition of AYP.

                   Approval of Alternative Definition



Sec. 30.113  How does the Secretary review and approve an alternative 

definition of AYP?

    (a) The tribal governing body or school board submits a proposed 
alternative definition of AYP to the Director, OIEP within 60 days of 
its decision to waive the Secretary's definition.
    (b) Within 60 days of receiving a proposed alternative definition of 
AYP, OIEP will notify the tribal governing body or the school board of:
    (1) Whether the proposed alternative definition is complete; and
    (2) If the definition is complete, an estimated timetable for the 
final decision.
    (c) If the proposed alternative definition is incomplete, OIEP will 
provide the tribal governing body or school board with technical 
assistance to complete the proposed alternative definition of AYP, 
including identifying what additional items are necessary.
    (d) The Secretaries will review the proposed alternative definition 
of AYP to determine whether it is consistent with the requirements of 20 
U.S.C. 6311(b). This review must take into account the unique 
circumstances and needs of the schools and students.
    (e) The Secretaries shall approve the alternative definition of AYP 
if it is consistent with the requirements of 20 U.S.C. 6311(b), taking 
into consideration the unique circumstances and needs of the school or 
schools and the students served.
    (f) If the Secretaries approve the alternative definition of AYP:
    (1) The Secretary shall promptly notify the tribal governing body or 
school board; and
    (2) The alternate definition of AYP will become effective at the 
start of the following school year.
    (g) The Secretaries will disapprove the alternative definition of 
AYP if it is not consistent with the requirements of 20 U.S.C. 6311(b). 
If the alternative definition is disapproved, the tribal governing body 
or school board will be notified of the following:
    (1) That the definition is disapproved; and
    (2) The reasons why the proposed alternative definition does not 
meet the requirements of 20 U.S.C. 6311(b).
    (h) If the Secretaries deny a proposed definition under paragraph 
(g) of this section, they shall provide technical assistance to overcome 
the basis for the denial.



              Subpart B_Assessing Adequate Yearly Progress



Sec. 30.114  Which students must be assessed?

    All students in grades three through eight and at least once in 
grades ten

[[Page 128]]

through twelve who are enrolled in a Bureau-funded school must be 
assessed.



Sec. 30.115  Which students' performance data must be included for

purposes of AYP?

    The performance data of all students assessed pursuant to Sec. 
30.114 must be included for purposes of AYP if the student is enrolled 
in a Bureau-funded school for a full academic year as defined by the 
Secretary or by an approved alternative definition of AYP.



Sec. 30.116  If a school fails to achieve its annual measurable 

objectives, what other methods may it use to determine whether it
made AYP?

    A school makes AYP if each group of students identified in Sec. 
30.107(b)(6) meets or exceeds the annual measurable objectives and 
participation rate identified in Sec. Sec. 30.107(b)(9) and 
30.107(b)(12) respectively, and the school meets the other academic 
indicators identified in Sec. 30.107(b)(11). If a school fails to 
achieve its annual measurable objectives for any group identified in 
Sec. 30.107(b)(6), there are two other methods it may use to determine 
whether it made AYP:
    (a) Method A--``Safe Harbor.'' Under ``safe harbor,'' the following 
requirements must be met for each group referenced under Sec. 
30.107(b)(6) that does not achieve the school's annual measurable 
objectives:
    (1) In each group that does not achieve the school's annual 
measurable objectives, the percentage of students who were below the 
``proficient'' level of academic achievement decreased by at least 10 
percent from the preceding school year; and
    (2) The students in that group made progress on one or more of the 
other academic indicators; and
    (3) Not less than 95 percent of the students in that group 
participated in the assessment.
    (b) Method B--Uniform Averaging Procedure. A school may use uniform 
averaging. Under this procedure, the school may average data from the 
school year with data from one or two school years immediately preceding 
that school year and determine if the resulting average makes AYP.



           Subpart C_Failure To Make Adequate Yearly Progress



Sec. 30.117  What happens if a Bureau-funded school fails to make AYP?

------------------------------------------------------------------------
                                                     Action required by
  Number of yrs of failing to                         entity operating
   make AYP in same academic          Status           school for the
            subject                                following school year
------------------------------------------------------------------------
1st year of failing AYP.......  No status change.  Analyze AYP data and
                                                    consider
                                                    consultation with
                                                    outside experts.
2nd year of failing AYP.......  School             Develop a plan or
                                 improvement,       revise an existing
                                 year one.          plan for school
                                                    improvement in
                                                    consultation with
                                                    parents, school
                                                    staff and outside
                                                    experts.
3rd year of failing AYP.......  School             Continue revising or
                                 Improvement,       modifying the plan
                                 year two.          for school
                                                    improvement in
                                                    consultation with
                                                    parents, school
                                                    staff and outside
                                                    experts.
4th year of failing AYP.......  Corrective Action  Implement at least
                                                    one of the six
                                                    corrective actions
                                                    steps found in 20
                                                    U.S.C.
                                                    6316(b)(7)(C)(iv).
5th year of failing AYP.......  Planning to        Prepare a
                                 Restructure.       restructuring plan
                                                    and make
                                                    arrangements to
                                                    implement the plan.
6th year of failing AYP.......  Restructuring....  Implement the
                                                    restructuring plan
                                                    no later than the
                                                    beginning of the
                                                    school year
                                                    following the year
                                                    in which it
                                                    developed the plan.
7th year (and beyond) of        Restructuring....  Continue
 failing AYP.                                       implementation of
                                                    the restructuring
                                                    plan until AYP is
                                                    met for two
                                                    consecutive years.
------------------------------------------------------------------------


[[Page 129]]



Sec. 30.118  May a Bureau-funded school present evidence of errors in

identification before it is identified for school improvement, 
corrective action, or restructuring?

    Yes. The Bureau must give such a school the opportunity to review 
the data on which the bureau would identify a school for improvement, 
and present evidence as set out in 20 U.S.C. 6316(b)(2).



Sec. 30.119  Who is responsible for implementing required remedial

actions at a Bureau-funded school identified for school improvement, 
corrective action or restructuring?

    (a) For a Bureau-operated school, implementation of remedial actions 
is the responsibility of the Bureau.
    (b) For a tribally operated contract school or grant school, 
implementation of remedial actions is the responsibility of the school 
board of the school.



Sec. 30.120  Are Bureau-funded schools exempt from offering school 

choice and supplemental educational services when identified for 
school improvement, corrective action, and restructuring?

    Yes, Bureau-funded schools are exempt from offering public school 
choice and supplemental educational services when identified for school 
improvement, corrective action, and restructuring.



Sec. 30.121  What funds are available to assist schools identified 

for school improvement, corrective action, or restructuring?

    From fiscal year 2004 to fiscal year 2007, the Bureau will reserve 4 
percent of its title I allocation to assist Bureau-funded schools 
identified for school improvement, corrective action, and restructuring.
    (a) The Bureau will allocate at least 95 percent of funds under this 
section to Bureau-funded schools identified for school improvement, 
corrective action, and restructuring to carry out those schools' 
responsibilities under 20 U.S.C. 6316(b). With the approval of the 
school board the Bureau may directly provide for the remedial activities 
or arrange for their provision through other entities such as school 
support teams or educational service agencies.
    (b) In allocating funds under this section, the Bureau will give 
priority to schools that:
    (1) Are the lowest-achieving schools;
    (2) Demonstrate the greatest need for funds; and
    (3) Demonstrate the strongest commitment to ensuring that the funds 
enable the lowest-achieving schools to meet progress goals in the school 
improvement plans.
    (c) Funds reserved under this section must not decrease total 
funding under title I, part A of the Act, for any school below the level 
for the preceding year. To the extent that reserving funds under this 
section would reduce the title I, part A dollar amount of any school 
below the amount of title I, part A dollars the school received the 
previous year, the Secretary is authorized to reduce the title I, part A 
allocations of those schools receiving an increase in the title I, part 
A funds over the previous year to create the 4 percent reserve. This 
section does not authorize a school to receive title I, part A dollars 
it is not otherwise eligible to receive.
    (d) The Bureau will publish in the Federal Register a list of 
schools receiving funds under this section.



Sec. 30.122  Must the Bureau assist a school it identified for school

improvement, corrective action, or restructuring?

    Yes, if a Bureau-funded school is identified for school improvement, 
corrective action, or restructuring, the Bureau must provide technical 
or other assistance described in 20 U.S.C. 6316(b)(4) and 20 U.S.C. 
6316(g)(3) .



Sec. 30.123  What is the Bureau's role in assisting Bureau-funded 

schools to make AYP?

    The Bureau must provide support to all Bureau-funded schools to 
assist them in achieving AYP. This includes technical assistance and 
other forms of support.



Sec. 30.124  Will the Bureau apply for funds that are available 

to help schools that fail to meet AYP?

    Yes, to the extent that Congress appropriates other funds to assist 
schools not meeting AYP, the Bureau will apply to the Department of 
Education for these funds.

[[Page 130]]



Sec. 30.125  What happens if a State refuses to allow a school 

access to the State assessment?

    (a) The Department will work directly with State officials to assist 
schools in obtaining access to the State's assessment. This can include 
direct communication with the Governor of the State. A Bureau-funded 
school may, if necessary, pay a State for access to its assessment tools 
and scoring services.
    (b) If a State does not provide access to the State's assessment, 
the Bureau-funded school must submit a waiver for an alternative 
definition of AYP.



              Subpart D_Responsibilities and Accountability



Sec. 30.126  What is required for the Bureau to meet its reporting 

responsibilities?

    The Bureau has the following reporting responsibilities to the 
Department of Education, appropriate Committees of Congress, and the 
public.
    (a) In order to provide information about annual progress, the 
Bureau must obtain from all Bureau-funded schools the results of 
assessments administered for all tested students, special education 
students, students with limited English proficiency, and disseminate 
such results in an annual report.
    (b) The Bureau must identify each school that did not meet AYP in 
accordance with the school's AYP definition.
    (c) Within its annual report to Congress, the Secretary shall 
include all of the reporting requirements of 20 U.S.C. 6316(g)(5).



Sec. 30.150  Information collection.

    Notwithstanding any other provision of law, no person is required to 
respond to, nor shall any person be subject to a penalty for failure to 
comply with, a collection of information subject to the requirements of 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)(PRA), 
unless that collection of information displays a currently valid Office 
of Management and Budget (OMB) Control Number. This part involves 
collections of information subject to the PRA in Sec. Sec. 
30.104(a)(1), 30.104(b), 30.106, 30.107, 30.110, and 30.118. These 
collections have been approved by OMB under control number 1076-0163.



PART 31_FEDERAL SCHOOLS FOR INDIANS--Table of Contents




Sec.
31.0 Definitions.
31.2 Use of Federal school facilities.
31.3 Non-Indian pupils in Indian schools.
31.4 Compulsory attendance.
31.6 Coercion prohibited.
31.7 Handling of student funds in Federal school facilities.

    Authority: Sec. 1, 41 Stat. 410; 25 U.S.C. 282, unless otherwise 
noted.

    Source: 22 FR 10533, Dec. 24, 1957, unless otherwise noted.



Sec. 31.0  Definitions.

    As used in this part:
    (a) School district means the local unit of school administration as 
defined by the laws of the State in which it is located.
    (b) Cooperative school means a school operated under a cooperative 
agreement between a school district and the Bureau of Indian Affairs in 
conformance with State and Federal school laws and regulations.

(35 Stat. 72, 25 U.S.C. 295)

[33 FR 6472, Apr. 27, 1968]



Sec. 31.2  Use of Federal school facilities.

    Federal Indian school facilities may be used for community 
activities and for adult education activities upon approval by the 
superintendent or officer in charge.



Sec. 31.3  Non-Indian pupils in Indian schools.

    Indian and non-Indian children who are not eligible for enrollment 
in Bureau-operated schools under Sec. 31.1 may be enrolled in such 
schools under the following conditions:
    (a) In boarding schools upon payment of tuition fees, which shall 
not exceed the per capita cost of maintenance in the school attended, 
when their presence will not exclude Indian pupils eligible under Sec. 
31.1.
    (b) In day schools in areas where there are no other adequate free 
school

[[Page 131]]

facilities available, tuition fees may be charged for such enrollment at 
the discretion of the superintendent or other officer in charge provided 
such fees shall not exceed the tuition fees allowed or charged by the 
State or county in which such school is located for the children 
admitted in the public schools of such State or county.

(34 Stat. 1018, 35 Stat. 783, 40 Stat. 564; 25 U.S.C. 288, 289, 297)

[29 FR 5828, May 2, 1964]



Sec. 31.4  Compulsory attendance.

    Compulsory school attendance of Indian children is provided for by 
law.

(60 Stat. 962; 25 U.S.C. 231)

    Cross Reference: For penalties for the failure of Indians to send 
children to school and for contributing to the delinquency of minors, 
see Sec. 11.424 of this chapter.



Sec. 31.6  Coercion prohibited.

    There shall be no coercion of children in the matter of transfers 
from one school to another, but voluntary enrollment should be effected 
through maintenance of Federal Indian schools or programs which suit the 
needs and interests of the areas in which they are located.

(Sec. 1, 29 Stat. 348; 25 U.S.C. 287)



Sec. 31.7  Handling of student funds in Federal school facilities.

    The Secretary or his authorized representative may authorize 
officials and employees of the Bureau of Indian Affairs to accept and to 
disburse deposits of funds of students and student activity associations 
in schools operated by the Bureau in accordance with the purposes of 
such deposits. The following steps shall be taken to safeguard these 
funds:
    (a) A written plan of operation shall be developed by the membership 
of each student activity group. The plan of operation subject to the 
approval of authorized officials shall outline procedures and provide 
for a system of accounting for the student funds commensurate with the 
age and grade level of the students yet adequate for financial control 
purposes and shall stipulate the maximum operating capital of activity.
    (b) Appropriate safekeeping facilities shall be provided for all 
student personal and group funds and for the accounting or bookkeeping 
records.
    (c) Employees handling student funds in cumulative amounts in excess 
of $100 shall be covered by a comprehensive fidelity bond the penal sum 
of which shall be appropriately related to fund amounts handled.
    (d) Student funds accumulated in excess of the amount authorized for 
operating purposes by the plan of operation shall be deposited in 
federally insured depositories.
    (e) Periodic administrative inspections and financial audit of 
student fund operations shall be conducted by authorized Bureau 
personnel.

[26 FR 10637, Nov. 14, 1961]



PART 32_INDIAN EDUCATION POLICIES--Table of Contents




Sec.
32.1 Purpose and scope.
32.2 Definitions.
32.3 Mission statement.
32.4 Policies.
32.5 Evaluation of implementation of Pub. L. 95-561.

    Authority: Secs. 1130 and 1133 of Title XI of the Education 
Amendments of 1978 (92 Stat. 2143, 2321 and 2325, Pub. L. 95-561; 25 
U.S.C. 2010 and 2013).

    Source: 44 FR 58098, Oct. 9, 1979, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 32.1  Purpose and scope.

    The purpose of this part is to state the policies to be followed by 
all schools and education programs under the jurisdiction of the Bureau 
of Indian Affairs. Contract schools operated by Indian Tribes or Alaska 
Native entities may develop their independent policies, consistent with 
contractual obligations, or adhere to these. The adherence to the 
appropriate policies shall reflect the best interests of the student, 
the Federal government, the Tribes and Alaska Native entities, and shall 
be based on educationally sound judgment.



Sec. 32.2  Definitions.

    As used in this part, the term:

[[Page 132]]

    (a) Agency School Board means a body, the members of which are 
appointed by the school boards of the schools located within such 
agency, and the number of such members shall be determined by the 
Director in consultation with the affected Tribes or Alaska Native 
entities except that, in agencies serving a single school, the school 
board of such school shall fulfill these duties.
    (b) Alaska Native means an Indian, Eskimo, or Aleut who is a member 
of an Alaska Native entity.
    (c) Alaska Native Entity means any Alaska Native village or regional 
or village corporation as defined in or established pursuant to the 
Alaska Native Claims Settlement Act (85 Stat. 688; 43 U.S.C. 1601 et 
seq.).
    (d) Alaska Native Village means any Native village as defined in 
section 3(c) of the Alaska Native Claims Settlement Act (85 Stat. 689; 
43 U.S.C. 1602 (c)).
    (e) Boarding school, hereinafter referred to as residential school, 
means a Bureau school offering residential care and support services as 
well as an academic program.
    (f) Bureau means the Bureau of Indian Affairs of the Department of 
the Interior.
    (g) Consultation means a conferring process with Tribes, Alaska 
Native entities, and Tribal organizations on a periodic and systematic 
basis in which the Bureau and Department officials listen to and give 
effect, to the extent they can, to the views of these entities.
    (h) Contract school means a school (other than a public school) 
which is Tribally operated and aided by a financial assistance contract 
with the Bureau.
    (i) Day school means a Bureau school offering an academic program 
and certain support services such as counseling, food, transportation, 
etc., but excluding residential care.
    (j) Director means the Director, Office of Indian Education 
Programs, Bureau of Indian Affairs.
    (k) Early childhood education means comprehensive education 
activities with continuity of educational approach for children ages 0-8 
years and their families, appropriate for their age, development, 
language and culture which supplement and support usual family 
responsibilities for child growth and development. They are coordinated 
with, but do not supplant, existing educational, health, nutritional, 
social and other necessary services.
    (l) Exceptional Education Programs mean the provision of services to 
those children who are identified as handicapped and have been found to 
meet the criteria of handicapped as defined in Pub. L. 94-142, and 
programs for gifted and talented students.
    (m) Indian means a member of an Indian Tribe.
    (n) Indian Organization means any group, association, partnership, 
corporation, or other legal entity owned or controlled by a federally 
recognized Indian Tribe or Tribes, or a majority of whose members are 
members of federally recognized Indian Tribes.
    (o) Indian Tribe or Tribe means any Indian tribe, band, nation, 
rancheria, pueblo, colony, 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.
    (p) Local school board, when used with respect to a Bureau school, 
means a body chosen in accordance with the laws of the Tribe or Alaska 
Native entity to be served or, in the absence of such laws, elected by 
the parents of the Indian children attending the school, except that in 
schools serving a substantial number of students from different Tribes 
or Alaska Native entities the members shall be appointed by the 
governing bodies of the Tribes and entities affected; and, the number of 
such members shall be determined by the Director in consultation with 
the affected Tribes and entities.
    (q) Post-secondary education means any education program beyond the 
age of compulsory education, including higher education, career, 
vocational, and technical.
    (r) Tribal Organization means an organization composed of or duly 
representing Tribal governments which may be national or regional in 
scope and function.

[[Page 133]]



Sec. 32.3  Mission statement.

    Recognizing the special rights of Indian Tribes and Alaska Native 
entities and the unique government-to-government relationship of Indian 
Tribes and Alaska Native villages with the Federal Government as 
affirmed by the United States Constitution, U.S. Supreme Court 
decisions, treaties, Federal statutes, and Executive Orders, and as set 
out in the Congressional declaration in sections 2 and 3 of the Indian 
Self-Determination and Education Assistance Act (Pub. L. 93-638; 88 
Stat. 2203; 25 U.S.C. 450 and 450a), it is the responsibility and goal 
of the Federal government to provide comprehensive education programs 
and services for Indians and Alaska Natives. As acknowledged in section 
5 of the Indian Child Welfare Act of 1978 (Pub. L. 95-608; 92 Stat. 
3069; 25 U.S.C. 1901), in the Federal Government's protection and 
preservation of Indian Tribes and Alaska Native villages and their 
resources, there is no resource more vital to such Tribes and villages 
than their young people and the Federal Government has a direct 
interest, as trustee, in protecting Indian and Alaska Native children, 
including their education. The mission of the Bureau of Indian Affairs, 
Office of Indian Education Programs, is to provide quality education 
opportunities from early childhood through life in accordance with the 
Tribes' needs for cultural and economic well-being in keeping with the 
wide diversity of Indian Tribes and Alaska Native villages as distinct 
cultural and governmental entities. The Bureau shall manifest 
consideration of the whole person, taking into account the spiritual, 
mental, physical and cultural aspects of the person within family and 
Tribal or Alaska Native village contexts.



Sec. 32.4  Policies.

    In carrying out its Education mission, the Assistant Secretary for 
Indian Affairs through the Director shall:
    (a) Policy making. (1) Assure that no new policy shall be 
established nor any existing policy changed or modified without 
consultation with affected Tribes and Alaska Native Government entities.
    (2) Be guided in policy formulation and funding priorities, 
including the proposing and awarding of contracts and grants, by 
periodic and systematic consultation with governing bodies of Tribes and 
Alaska Native entities.
    (3) Ensure that Indian Tribes and Alaska Native entities fully 
exercise self-determination and control in planning, priority-setting, 
development, management, operation, staffing and evaluation in all 
aspects of the education process.
    (4) Ensure that each agency or local school board shall be 
authorized and empowered to function as the policy making body for the 
school, consistent with the authority granted by the tribes or Alaska 
Native entity(ies) served by the school(s).
    (b) Student rights. Ensure the constitutional, statutory, civil and 
human rights of all Indian and Alaska Native students, and respect the 
role of Tribal judicial systems where appropriate including, for 
example, ensuring that students have the right to be free from cruel and 
unusual punishment and that all disciplinary procedures shall be 
consistent with appropriate customs and practices of the appropriate 
Indian Tribe or Alaska Native village.
    (c) Equity funding. Assure that resources for all education programs 
are equitably distributed for the benefit of all Indian and Alaska 
Native students, taking into account special educational needs where 
they exist, as further described in part 39 of this subchapter.
    (d) Direction of programs. Ensure that the education function be 
structured in such a manner that all matters relating to the operation 
of education programs be administered by or be under the direction of 
education personnel.
    (e) Respect for family. Promote, respect and defend the cohesiveness 
and integrity of the family, and Tribal and Alaska Native community, as 
they relate to the educational and social prerogatives of the Tribes and 
Alaska Native entities.
    (f) Religious freedom. Promote and respect the right to cultural 
practices and religious freedom for all students, consistent with Tribal 
and Alaska Native entities' wishes and with the provisions of the 
American Indian Religious Freedom Act (92 Stat. 469; Pub. L. 95-341; 42 
U.S.C. 1996).

[[Page 134]]

    (g) Tribal rights regarding governing bodies and planning. (1) 
Develop in consultation with Tribes and Alaska Native entities a plan to 
include their direct involvement in short and long-range planning of 
Bureau operated post-secondary schools through the formation of policy 
making governing boards.
    (2) Encourage and defend the right of the Tribes and Alaska Native 
entities to govern their own internal affairs in all matters relating to 
education, and their right to determine the equitable and appropriate 
composition of governing boards at Bureau off-reservation and post-
secondary schools.
    (h) Multilingual education. Provide for a comprehensive 
multicultural and multilingual educational program including the 
production and use of instructional materials, culturally appropriate 
methodologies and teaching and learning strategies that will reinforce, 
preserve and maintain Indian and Alaska Native languages, cultures, and 
histories which school boards, Tribes and Alaska Native entities may 
utilize at their discretion.
    (i) Choice of school. Afford Indian and Alaska Native students the 
opportunity to attend local day schools and other schools of choice and 
the option to attend boarding schools when the student and parent or 
guardian determine it is in the student's best interest and consistent 
with the provisions of the Indian Child Welfare Act of 1978 (Pub. L. 95-
608) except that, residential schools shall not be used as substitutes 
for providing adequate local family social services. Each school shall 
establish its attendance area in cooperation with neighboring schools.
    (j) Tribal education plans. Assist Tribes and Alaska Native entities 
at their request in the development of Departments of Education, 
education codes, and comprehensive education plans.
    (k) Advocacy and coordination. (1) Serve as an advocate for Indian 
Tribes and Alaska Native entities in education matters before the 
Federal, State and local governments.
    (2) Assume an assertive role in coordinating comprehensive support 
for Indian and Alaska Native students internally and from other agencies 
in education, mental and physical health, juvenile justice, job 
training, including apprenticeship programs and other related Federal, 
State and local programs and services.
    (3) Serve as an advocate and carry out responsibilities for Indian 
and Alaska Native students in public and other non-Bureau operated 
schools consistent with the wishes of the appropriate Indian Tribes and 
Alaska Native entities, particularly in regard to Impact Aid (Pub. L. 
81-874), Johnson-O'Malley, and all Elementary and Secondary Education 
Act programs.
    (l) Student assessment. Establish and maintain a program of research 
and development to provide accurate and culturally specific assessment 
instruments to measure student performance in cooperation with Tribes 
and Alaska Native entities.
    (m) Recruitment of Indians. Adopt procedures to insure that 
qualified Indian and Alaska Native educators are recruited for positions 
appropriate to their cultural background and qualifications.
    (n) Priorities in contracts and grants. Provide financial support 
through contracts, grants or other funding mechanisms with first 
priority given to the Tribes and Alaska Native entities, Tribal 
organizations, Tribally controlled community colleges, and Indian or 
Alaska Native professional or technical assistance organizations which 
have the sanction of the benefitting Tribes and Alaska Native entities.
    (o) Community school concept. Promote the community school concept 
by encouraging year around multi-use of educational facilities, 
equipment and services for Tribal, Alaska Native village, and community 
development.
    (p) Education close to home. Provide day and residential educational 
services as close to an Indian or Alaska Native student's home as 
possible, except when a student elects to attend a school elsewhere for 
specialized curricular offerings or services.
    (q) Tribal notification and involvement and program flexibility. (1) 
Notify Indian Tribes and Alaska Native entities of proposed, pending or 
final Federal legislation, appropriations, Solicitor's and Attorney 
General's opinions and court decisions affecting Indian and Alaska

[[Page 135]]

Native education for the purposes of information and consultation, 
providing them ready access at the local level to all evaluations, data 
records, reports and other relevant information, consistent with the 
provisions of the Privacy and Freedom of Information Acts.
    (2) Implement rules, regulations, procedures, practices, and 
standards to insure flexibility in the exercise of local Tribal or 
Alaska Native village options, and provide for input in periodic 
reviews, evaluations, and revisions to meet changing needs and 
circumstances.
    (r) Career and higher education. (1) Ensure to the extent possible 
that all students who choose to pursue career and post-secondary 
education, including but not limited to, undergraduate and graduate 
programs, or preparation for skilled trades, receive adequate academic 
or other preparation, at the schools of their choice, assuring that 
students are provided adequate support services to enable them to meet 
their educational goals.
    (2) Extend to Tribes and Alaska Native entities the prerogative of 
determining those critical professions and fields of study in post-
secondary education which are of the highest priority to meet their 
economic and cultural goals.
    (s) Planning, maintenance and use of facilities. (1) Ensure that the 
needs of the students and Tribal or Alaska Native community will receive 
first priority in the planning, design, construction, operation and 
maintenance of Bureau schools and residential facilities, rather than 
other considerations, such as ease of maintenance, and that these 
facilities assure a supportive environment for learning, living and 
recreation.
    (2) Maintain all school and residential facilities to meet 
appropriate Tribal, State or Federal safety, health and child care 
standards. If a conflict exists in these standards, the Federal standard 
shall be followed; in the absence of a Federal standard, the Tribal 
standard shall be followed. In case of conflict, any such Tribal health 
or safety standards shall be no greater than any otherwise applicable 
State standard.
    (t) Alternative, innovative and exemplary programs. Vigorously 
encourage and support alternative, innovative and exemplary programs 
reflecting Tribal or Alaska Native village specific learning styles, 
including but not limited to, parent-based early childhood education 
programs, adult and vocational technical education, library and media 
services, special education including programs for handicapped, gifted 
and talented students, summer programs, and career development.
    (u) Training. Provide support and technical assistance at all levels 
for the training of duly sanctioned Tribal and Alaska Native education 
representatives involved in educational decisionmaking, including pre-
service and in-service training for educators.
    (v) Tribally controlled community colleges. Assist Tribes and Alaska 
Natives in their planning, designing, construction, operation and 
maintenance of Tribally controlled community colleges, consistent with 
all appropriate legislation. (See part 41 of this subchapter.)
    (w) Equal opportunity. Establish and enforce policies and practices 
to guarantee equal opportunity and open access to all Indian and Alaska 
Native students in all matters relating to their education programs 
consistent with the provisions of the Privacy and Freedom of Information 
Acts.
    (x) Accountability, evaluation of MIS. (1) Enforce a strict standard 
of fiscal, programmatic and contract accountability to the Tribes and 
Alaska Native entities and assist them in the development of their own 
standards of accountability and carry out annual evaluations of all 
Bureau-operated or funded education programs.
    (2) Provide and make available a computerized management information 
system which will provide statistical information such as, but not 
limited to, student enrollment, curriculum, staff, facilities, student 
assessments and related educational information.
    (y) Accreditation. (1) Encourage and assist all Bureau and contract 
schools to attain appropriate State, regional, Tribal or national 
accreditation.
    (2) Assist and promote the establishment of Indian regional and/or 
national accrediting associations for all levels of Indian Education.

[[Page 136]]

    (z) Eligibility for services. Serve Indian and Alaska Native 
students who are recognized by the Secretary of the Interior as eligible 
for Federal services, because of their status as Indians or Alaska 
Natives, whose Indian blood quantum is \1/4\ degree or more. In the 
absence of other available facilities, children of non-Indian Bureau 
personnel or other non-eligibles may be served subject to the provisions 
of 25 U.S.C. 288 and 289.
    (aa) Appropriations. Aggressively seek sufficient appropriations to 
carry out all policies herein established subject to the president's 
budget and the Department's budgetary process.



Sec. 32.5  Evaluation of implementation of Pub. L. 95-561.

    The Director, Office Indian Education Programs will develop 
guidelines for evaluating all functional and programmatic 
responsibilities associated with title XI of the Education Amendments of 
1978 (Pub. L. 95-561), and in the January 1, 1981 annual report, as 
provided in section 1136, of Pub. L. 95-561 include a statement of the 
specific program toward implementing these policies.



PART 33_TRANSFER OF INDIAN EDUCATION FUNCTIONS--Table of Contents




Sec.
33.1 Definitions.
33.2 Policy.
33.3 Delegation of authority.
33.4 Redelegation of authority.
33.5 Area education functions.
33.6 Agency education functions.
33.7 Implementing procedures.
33.8 Realignment of area and agency offices.
33.9 Development of procedures.
33.10 Issuance of procedures.

    Authority: Sec. 1126, Pub. L. 95-561, Education Amendments of 1978 
(92 Stat. 2143, 2391; 25 U.S.C. 2006).

    Source: 44 FR 58103, Oct. 9, 1979, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 33.1  Definitions.

    (a) Agency means that organizational unit of the Bureau which 
provides direct services to the governing body or bodies and members of 
one or more specified Indian Tribes.
    (b) Early childhood means education activities serving the 0 to 8 
year old child, including pre-natal, child care, kindergarten, homebase, 
homebound, and special education programs.
    (c) Elementary and secondary education means those programs serving 
the child from grade one through grade twelve.
    (d) Operating level means the organizational level at which direct 
educational services are performed.
    (e) Personnel directly and substantially involved means those 
persons who provide services which affect the operation of Indian 
education programs, including (but not limited to) school or institution 
custodial or maintenance personnel, and whose services for Indian 
education programs require the expenditure of at least 51 percent of the 
employee's working time.
    (f) Post-secondary means education programs that are provided for 
persons past the age for compulsory education to include continuing 
education, higher education, undergraduate and graduate, career and 
adult education. As used in this Act, the term Post-Secondary shall 
include those Bureau of Indian Affairs programs operated at Southwestern 
Indian Polytechnic Institute, the Institute of American Indian Arts, and 
Haskell Indian Junior College, and those operated at Tribally controlled 
community colleges under Pub. L. 95-471.



Sec. 33.2  Policy.

    It is the policy of the Department of the Interior that:
    (a) Indian control of Indian affairs in all matters relating to 
education shall be facilitated.
    (b) Authority to perform education functions shall be delegated 
directly from the Assistant Secretary-Indian Affairs to the Director, 
Office of Indian Education Programs.
    (c) Administrative authority shall be compatible with program 
authorities; and, both shall be delegated to the operating level to 
assure efficient and effective delivery of education services to Indian 
children, youth, and adults.
    (d) The Director, Office of Indian Education Programs shall 
supervise the operation of Indian education program personnel at the 
Arena, Agency,

[[Page 137]]

and the three Bureau of Indian Affairs post-secondary institutions.
    (e) Indian Education program functions to be performed at the Area 
office level shall include those dealing with higher education, Johnson-
O'Malley aid to non-Bureau schools, off-reservation boarding schools, 
those education program operations serving tribes from more than one 
Agency except those at the three post-secondary institutions, on-
reservation education functions located at an Agency where no 
educational personnel are assigned, education contract operations, and 
adult education.



Sec. 33.3  Delegation of authority.

    The administrative and programmatic authorities of the Assistant 
Secretary--Indian Affairs pertaining to Indian education functions shall 
not be delegated to other than the Director, Office of Indian Education 
Programs. The Assistant Secretary shall publish delegations of 
authorites to the Director in the Bureau of Indian Affairs Manual after 
the effective date of these regulations.



Sec. 33.4  Redelegation of authority.

    The authorities of the Assistant Secretary--Indian Affairs as 
delegated to the Director, Office of Indian Education Programs may be 
redelegated by the Director to a Bureau of Indian Affairs Agency 
Superintendent for Education, to a Bureau Area Education Programs 
Director, or to a President of a Bureau of Indian Affairs post-secondary 
education institution.



Sec. 33.5  Area education functions.

    A Bureau Area Education Programs Director shall perform those Bureau 
of Indian Affairs education functions related to Johnson-O'Malley aid to 
non-Bureau schools, higher education, Bureau peripheral dormitories, 
adult education, off-reservation residential schools, on-reservation 
functions located at an Agency where no education personnel are 
assigned, education contract operations, and those education program 
operations serving Tribes from more than one Agency, except those of the 
Bureau's post-secondary institutions.



Sec. 33.6  Agency education functions.

    A Bureau Agency Superintendent for Education shall perform those 
education functions related to elementary and secondary education, early 
childhood education, peripheral dormitories which have been supervised 
prior to Pub. L. 95-561, and exceptional education programs as defined 
in 25 CFR part 32. This section shall not be construed to remove higher 
education, adult education and/or Johnson-O'Malley programs currently 
administered at the Agency level. Further, the Director under the 
authority of Sec. 33.4 will periodically review Area programs such as 
higher education, adult education, and Johnson-O'Malley for 
consideration to assign to Agency level administration.



Sec. 33.7  Implementing procedures.

    (a) The Assistant Secretary--Indian Affairs shall:
    (1) Implement the transfer for Indian education functions from the 
jurisdiction of Agency Superintendents and Area Office Directors to the 
Director, Office of Indian Education Programs.
    (2) Modify existing descriptions of positions for Area Office 
Directors, Agency Superintendents, and all other personnel directly and 
substantially involved with the provisions of education services by the 
Bureau of Indian Affairs.
    (b) The Director, Office of Indian Education Programs shall:
    (1) For Area, Agency, and Bureau of Indian Affairs postsecondary 
institutional personnel:
    (i) Properly list the duties of each employee required to perform 
functions redelegated by the Director;
    (ii) Define the responsibilities for monitoring and evaluating 
education programs; and
    (iii) Exercise supervision of these employees.
    (2) Define responsibilities for employees providing technical and 
coordinating assistance for support services

[[Page 138]]

to the Director, Office of Indian Education Programs and his/her 
subordinates, including procurement, contracting, personnel, and other 
administrative support areas.

[44 FR 58103, Oct. 9, 1979. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 49 FR 12702, Mar. 30, 1984]



Sec. 33.8  Realignment of area and agency offices.

    The Assistant Secretary--Indian Affairs shall implement Bureau of 
Indian Affairs Area Office and Agency Office reorganizations required to 
structure these offices consistent with education program activities to 
be undertaken at those levels.



Sec. 33.9  Development of procedures.

    The Director, Office of Indian Education Programs shall prepare and 
promulgate procedures to govern the provision of support services by the 
Bureau of Indian Affairs for the education function. These procedures 
shall be consistent with existing laws, regulations, Executive Orders, 
and Departmental policies governing administrative support services. 
These provisions shall be prepared in consultation with those personnel 
within the Bureau of Indian Affairs who are responsible to the 
Commissioner of Indian Affairs for providing support services.



Sec. 33.10  Issuance of procedures.

    The Assistant Secretary--Indian Affairs, directly or through the 
Commissioner of Indian Affairs, shall issue procedures in the Bureau of 
Indian Affairs Manual governing the provision of support services to the 
Bureau's Education Office function.



PART 36_MINIMUM ACADEMIC STANDARDS FOR THE BASIC EDUCATION OF INDIAN

CHILDREN AND NATIONAL CRITERIA FOR DORMITORY SITUATIONS--Table of 
Contents




                      Subpart A_General Provisions

Sec.
36.1 Purpose, scope, and information collection requirements.
36.2 Applicability.
36.3 Definitions.

                    Subpart B_Educational Management

36.10 Standard I--Philosophy and goals.
36.11 Standard II--Administrative requirements.
36.12 Standard III--Program needs assessment.
36.13 Standard IV--Curriculum development.

                Subpart C_Minimum Program of Instruction

36.20 Standard V--Minimum academic programs/school calendar.
36.21 Standard VI--Kindergarten instructional program.
36.22 Standard VII--Elementary instructional program.
36.23 Standard VIII--Junior high/middle school instructional program.
36.24 Standard IX--Secondary instructional program.

               Subpart D_Student Instructional Evaluation

36.30 Standard X--Grading requirements.
36.31 Standard XI--Student promotion requirements.
36.32 Standard XII--Graduation requirements for a high school diploma.

                     Subpart E_Instructional Support

36.40 Standard XIII--Library/media program.
36.41 Standard XIV--Textbooks.
36.42 Standard XV--Counseling services.
36.43 Standard XVI--Student activities.

              Subpart F_Evaluation of Educational Standards

36.50 Standard XVII--School program evaluation and needs assessment.
36.51 Standard XVIII--Office of Indian Education Programs and Agency 
          monitoring and evaluation responsibilities.

                  Subpart G_National Dormitory Criteria

36.70 Scope of subpart.
36.71 General provisions.
36.72 Elementary level dormitories.
36.73 Secondary level dormitories.
36.74 Homeliving (dormitory operations).
36.75 Space and privacy.
36.76 Compliance for the National Criteria for Dormitory Situations.
36.77 Waivers and revisions.

    Authority: Section 502, 25 U.S.C. 2001; section 5101, 25 U.S.C. 
2001; Section 1101, 25 U.S.C. 2002; 5 U.S.C. 301; 25 U.S.C. 2 and 9; 25 
U.S.C. 2901, Title I of P.L. 101-477.

    Source: 50 FR 36816, Sept. 9, 1985, unless otherwise noted.

[[Page 139]]



                      Subpart A_General Provisions



Sec. 36.1  Purpose, scope, and information collection requirements.

    (a) The purpose of this rule is to establish minimum academic 
standards for the basic education of Indian children for Bureau-operated 
schools and for those Indian-controlled contract schools which adopt 
these standards and to establish national criteria for dormitory 
situations for schools operated by the Bureau of Indian Affairs and for 
Indian-controlled contract schools operating dormitories.
    (b) The information collection requirement contained in Sec. 
36.61(a) has been approved by the Office of Management and Budget under 
44 U.S.C. 3507 and assigned clearance number 1076-0092. The information 
is being collected to evaluate waiver request(s) from tribal 
government(s) and school board(s). The information will be used to 
ascertain the approval of academic waiver request. The obligation to 
respond is mandatory under 25 U.S.C. 2001. The information collection 
requirements contained in Sec. Sec. 36.71(g), 36.74(f), and 36.76(b) of 
this rule are not required to be approved by the Office of Management 
and Budget since less than ten persons or tribes are affected by the 
information collection requirement of this rule. However, when ten or 
more persons or tribes become affected by this requirement, the Bureau 
will submit an approval request.

[50 FR 36816, Sept. 9, 1985, as amended at 70 FR 21951, Apr. 28, 2005]



Sec. 36.2  Applicability.

    The national criteria for dormitory situations established under 
subpart H will serve as a minimum requirement and shall be mandatory for 
all Bureau-operated and Indian-controlled contract schools.

[50 FR 36816, Sept. 9, 1985, as amended at 70 FR 21951, Apr. 28, 2005]



Sec. 36.3  Definitions.

    For purposes of this part, the following definitions apply:
    Accreditation means a school has received an official decision by 
the State(s) department(s) of education, or another recognized agency 
having official authority, that, in its judgment, the school has met the 
established standards of quality.
    Agency means the current organizational unit of the Bureau which 
provides direct services to the governing body or bodies and members of 
one or more specified Indian tribes.
    Agency school board as defined in sec. 1139(1), Pub. L. 95-561, 
means a body, the members of which are appointed by the school boards of 
the schools located within such Agency. The number of such members shall 
be determined by the Director in consultation with the affected tribes. 
In Agencies serving a single school, the school board of that school 
shall function as the Agency school board.
    Agency Superintendent for Education means the Bureau official in 
charge of education functions at an Agency and to whom the school 
supervisor(s) and other educators under the Agency's jurisdiction 
report.
    Area Education Programs Administrator means the Bureau official in 
charge of Bureau education programs and functions in a Bureau Area 
Office and is responsible for off-reservation residential schools, and, 
in some cases, peripheral dormitories and on-reservation day schools not 
receiving services from the Agency Superintendent for Education.
    Assistant Secretary means the Assistant Secretary for Indian Affairs 
of the Department of the Interior.
    Authentic assessment means the testing of higher order thinking 
skills by monitoring performance of tasks requiring analysis, 
creativity, and application skills in real life situations.
    Average daily membership (ADM) means the aggregate days membership 
of a given school during a given reporting period divided by the number 
of days school is in session during this period. Only days on which the 
students are under the guidance and direction of teachers shall be 
considered as days in session. The reporting period is generally a given 
regular school term.
    Basic academic skills means the abilities acquired by observation, 
study, or experience in mental and/or physical performance (e.g., 
proficiency in planning and investigating, operational

[[Page 140]]

techniques, comprehension, organization, execution, remembrance and 
application of knowledge to acquire a desired result) basic to the 
mastery of school work or other activity.
    Basic education means those components of education emphasizing 
literacy in language arts, mathematics, natural and physical sciences, 
history, and related social sciences.
    Bureau means the Bureau of Indian Affairs of the Department of the 
Interior.
    Certification means the general process by which the State or Agency 
authorized by the State adjudges and stipulates that an individual meets 
the established standards which are prerequisite to employment for a 
teacher or administrator in education.
    Competency means having the requisite abilities, skills, or a 
specified level of mastery.
    Computer literacy used here means the general range of skills and 
understanding needed to function effectively in a society increasingly 
dependent on computer and information technology.
    Content area means the usual school subjects of instruction, such 
as: Language arts, mathematics, science, social studies, fine arts, 
practical arts, health, and physical education.
    Counselor means a staff member, including those in both academic and 
dormitory situations, who helps the students to understand educational, 
personal, and occupational strengths and limitations; to relate 
abilities, emotions, and aptitudes to educational and career 
opportunities; to utilize abilities in formulating realistic plans; and 
to achieve satisfying personal and social development.
    Course of study means a written guide prepared by administrators, 
supervisors, consultants, and teachers of a school system or school, as 
an aid to teaching a given course or an aspect of subject-matter content 
to a given category of pupil.
    Criterion-referenced test means an achievement test designed to 
measure specific skills within a subject area. Test results indicate 
which skills a student has or has not learned.
    Days means calendar days.
    Director means the Director of the Office of Indian Education 
Programs in the Bureau.
    Dormitory means a facility which provides students boarding and 
lodging on a temporary residential basis for the purpose of attending a 
Bureau-operated or Indian-controlled contract or public school.
    Dormitory manager means a staff member who manages the day-to-day, 
24-hour operation of one or more dormitories.
    Elementary school is defined as any combination of grades K-8 except 
when any of these grades are included in the junior high or middle 
school level.
    Exceptional child program means a program for students who are 
eligible to receive education and related services as defined by 25 CFR 
39.11(i).
    Feeder school means a school whose exiting students are absorbed by 
a school offering instruction on the next higher grade level.
    Formative evaluation is an evaluation of progress during the 
implementation of a program. Its purpose is to provide immediate 
feedback on results to enable modifying the processes used in order to 
enhance success and prevent failure.
    Goals means a statement of what the school system is attempting to 
do to meet the comprehensive educational needs and interests of its 
pupils, in accordance with its statement of philosophy.
    Grade means the portion of a school program which represents the 
work of one regular school year; identified by a designation such as 
kindergarten, grade 1 or grade 10.
    Grade level is a designation applied to that portion of the 
curriculum which represents the work of one regular school year.
    High school is defined as grades nine through twelve, except when 
grade nine is included in the junior high or middle school 
organizational unit.
    Higher order thinking skills (or advanced skills) means skills such 
as reading comprehension, written composition, and mathematical 
reasoning. They differ from basic or discrete skills such as phonetic 
decoding and arithmetic operations.

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    Indian-controlled contract school means a school that is operated by 
a tribal organization and funded under a contract with the Bureau.
    Indian student means a student who is a member of an Indian tribe 
and is one-quarter (\1/4\) or more degree of Indian blood quantum.
    Indian tribe or tribe means any Indian tribe, band, nation, 
rancheria, pueblo, colony or community, including any Alaska Native 
village or regional or village corporation as defined in or established 
pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688), 
which is recognized as eligible for the special programs and services 
provided by the United States to Indians because of their status as 
Indians.
    Intense residential guidance means the program for residential 
students who need special residential services due to one or more of the 
problems as stated in 25 CFR 39.11(h).
    Junior high or middle school is defined as grades seven and eight, 
but may include grade six when it is not included in the elementary 
school level and/or grade nine when it is not included in the high 
school level.
    Kindergarten means a group of students or a class that is organized 
to provide educational experiences for children for the year immediately 
preceding the first grade.
    Librarian means a certificated school employee whose principal 
responsibilities include selection, acquisition, preparation, 
cataloging, and circulation of books and other printed materials; 
planning the use of the library by teachers and students; and 
instructing students in the use of library books and materials, whether 
the library is maintained separately or as a part of an instructional 
materials center.
    Local school board when used with respect to a Bureau-operated 
school means a body chosen in accordance with the laws of the tribe to 
be served or, in the absence of such laws, the body elected by the 
parents of the Indian children attending a Bureau-operated school. In 
schools serving a substantial number of students from different tribes, 
the members shall be appointed by the governing bodies of the tribes 
affected and the number of such members shall be determined by the 
Director in consultation with the affected tribes.
    Objectives means a statement of the general, long-range aims and the 
specific, short-range aims which indicate what the school is attempting 
to do to meet the needs of the students in accordance with the 
philosophy, goals, and policies of the school system.
    Paraprofessional means a staff member who works with and is under 
the supervision of a professional staff member but who does not have 
full professional status, e.g., teacher aide. The term denotes a level 
of knowledge and skills possessed by an individual or required of an 
individual to perform an assignment. The level of skills is usually at a 
predetermined minimum level.
    Parent means a natural parent or guardian or a person legally acting 
as parent.
    Peripheral dormitory is a facility which provides students boarding 
and lodging during the school year for the purpose of attending a public 
school.
    Regular program student means all students including those 
determined to be eligible for services as defined under the Exceptional 
Child Program, 25 CFR 39.11(i).
    Residential school means an educational institution in which 
students are boarded and lodged as well as taught.
    Residential Services under Exceptional Child Program means a program 
providing specialized residential care as determined by 25 CFR 39.11(i).
    School means an educational institution, including elementary, 
junior high or middle, high school, peripheral, cooperative, and 
contract schools serving students in grades Kindergarten through 12 and 
as further defined under 25 CFR 39.2(q).
    School board means an Agency or local school board.
    School day, instructional day, or teaching day is a day on which the 
school is open and students are under the guidance and direction of 
teachers in instructional activities where the minimum number of 
instructional hours are met.
    School Supervisor means the official in charge of a school and/or 
peripheral dormitory who reports to an Agency

[[Page 142]]

School Superintendent or an Area Education Programs Administrator, as 
appropriate.
    Secretary means the Secretary of the Interior.
    Self-contained class means a class having the same teacher or team 
of teachers for all or most of the daily session.
    Standard means the established criterion and/or specified 
requirement which must be met and maintained.
    Summative evaluation means a systematic analysis of the results or 
products of a program after it is completed. Its purpose is to determine 
the extent to which the objectives of the program have or have not been 
achieved. One form of summative evaluation compares results with those 
of another ``control'' program using different procedures. Other forms 
compare results with past results or predetermined target outcomes.
    Teacher means a certified staff member performing assigned 
professional activities in guiding and directing the learning 
experiences of pupils in an instructional situation.
    Unit/Unit of instruction means a major subdivision of instruction 
generally composed of several topics including content and learning 
experiences developed around a central focus such as a limited scope of 
subject matter, a central program, one or more related concepts, one or 
more related skills, or a combination of these. One unit equals one full 
year of instruction in a subdivision thereof. Unit and credit shall be 
used interchangeably.

[50 FR 36816, Sept. 9, 1985, as amended at 59 FR 61765, Dec. 1, 1994]



                    Subpart B_Educational Management



Sec. 36.10  Standard I--Philosophy and goals.

    (a) Each school shall develop a written mission statement and 
philosophy of education that addresses the accumulation of knowledge and 
development of skills, interests, appreciations, ideals, and attitudes 
within the school's total educational program. A statement of expected 
outcomes shall outline what the school is attempting to do to meet the 
needs and interests of its students and community in accordance with the 
school's mission statement and philosophy.
    (b) The statement of philosophy and goals shall be developed with 
the involvement of students, parents, lay citizens, school staff, and 
tribe(s) and shall be formally adopted by the local school board.
    (c) The philosophy and goals shall be reviewed annually and revised 
as necessary by each school.
    (d) A copy of the philosophy and goals shall be submitted to the 
Agency Superintendent for Education or Area Education Programs 
Administrator, as appropriate.
    (e) Informational provisions shall be developed in the form of a 
manual, handbook, brochure, or other written document(s) of the minimum 
academic standards of the school's programs and the basic rules and 
procedures of the school. The staff, students, and parents shall receive 
the written document or documents and have same explained to all who 
request explanation. The topics covered in the document(s) shall include 
but not be limited to the following:
    (1) Statement of philosophy and goals;
    (2) Description of how policies are developed and administered;
    (3) A brief explanation of curricular offerings;
    (4) A copy of student rights handbook;
    (5) Basic practices related to:
    (i) Grading system;
    (ii) Graduation requirements, if applicable;
    (iii) Attendance policies;
    (iv) Special programs at the school; and
    (v) Student activities available for students.

[50 FR 36816, Sept. 9, 1985, as amended at 59 FR 61765, Dec. 1, 1994]



Sec. 36.11  Standard II--Administrative requirements.

    (a) Staffing. Each school shall, at a minimum, meet the following 
requirements:
    (1) The overall school ratio of regular program students to regular 
program teachers in self-contained classrooms shall not exceed the 
following except

[[Page 143]]

under the conditions set forth in paragraphs (a)(4) (i) and (ii) of this 
section. Average daily membership (ADM) shall be used in meeting the 
following ratios.

------------------------------------------------------------------------
                           Level                                Ratio
------------------------------------------------------------------------
Kindergarten...............................................         20:1
1st grade--3rd grade.......................................         22:1
4th grade--high school.....................................         25:1
------------------------------------------------------------------------

    (2) Multi-grade classrooms that cross grade-level boundaries (e.g., 
K-1, 3-4, etc.) shall use the maximum of the lower grade. In grades K-8, 
grades shall be consolidated to meet the teacher ratios listed above.
    (3) The daily teaching load per teacher in departmentalized classes 
shall not exceed 150 students (ADM) except in activity type classes such 
as music and physical education.
    (4) Schools exceeding these specific staffing ratios for over 30 
consecutive days during one school year shall submit a justification for 
a request for a waiver to the Director, through the Agency 
Superintendent for Education or Area Education Programs Administrator, 
as appropriate, which may be approved for a period not to exceed one 
school year and for the following reasons:
    (i) Additional classroom space is not available for establishing 
another class; or
    (ii) The school, Agency, Area and Office of Indian Education 
Programs Applicant Supply File has been exhausted and the required 
teacher position cannot be filled. However, efforts to fill the vacancy 
shall be continued.
    (5) Each school shall provide, in the absence of a regular teacher, 
a certified substitute teacher who meets the State substitute teacher 
qualifications. In the event that such a substitute is not available, 
coverage will be provided by a school employee designated by the school 
supervisor. A class cannot have as a teacher an employee without 
teaching credentials for more than 20 school days during any one school 
year.
    (b) Written school enrollment and attendance policies. Each school 
shall have written school enrollment and attendance policies in 
compliance with and/or consistent with 25 CFR 31, Federal Schools for 
Indians, the statutes of the State, and tribal education ordinances.
    (c) Immunization. School children shall be immunized in accordance 
with the regulations and requirements of the state in which they attend 
school or standards of the Indian Health Service.

[50 FR 36816, Sept. 9, 1985, as amended at 59 FR 61765, Dec. 1, 1994; 70 
FR 21951, Apr. 28, 2005]



Sec. 36.12  Standard III--Program needs assessment.

    The policy and procedures of each school and its curricula shall be 
developed and revised based on an assessment of educational needs. This 
needs assessment shall be conducted at least every seven (7) years at 
the same frequency as required in Sec. 36.50, School Program 
Evaluation. This assessment shall include at least the following:
    (a) A clear statement of student educational goals and objectives. A 
student educational goal is defined as a statement of the knowledge, 
skills, attitudes, or concepts students are expected to exhibit upon 
completion of a grade level. Student educational objectives are defined 
as statements of more specific knowledge, skills, attitudes, or concepts 
students must exhibit in order to achieve the goal.
    (b) The collection of appropriate data from which valid 
determinations, judgments, and decisions can be made with respect to the 
status of the educational program, e.g.,
    (1) Perceptions of the parents, tribes, educators, and the students 
with regard to the relevance and importance of the goals.
    (2) The extent to which educational goals and objectives have been 
achieved.
    (3) The data developed as a result of the evaluation outlined in 
Sec. 36.50 School Program Evaluation.
    (c) A statement of educational needs which identifies the difference 
between the current status of students and the desired goals for the 
students.
    (d) A plan of action to remediate assessed needs.

[[Page 144]]



Sec. 36.13  Standard IV--Curriculum development.

    (a) Each school shall implement an organized program of curriculum 
development involving certified and non-certified staff and shall 
provide the opportunity for involvement by members of the local 
community.
    (b) Curriculum development program activities shall be based on an 
analysis of school programs and shall be related to needs assessment and 
evaluation.
    (c) Each school shall involve staff and provide the opportunity for 
involvement by the tribal community in planning programs, objectives, 
and activities which meet student/teacher needs.



                Subpart C_Minimum Program of Instruction



Sec. 36.20  Standard V--Minimum academic programs/school calendar.

    (a) If an emergency arises from an uncontrollable circumstance 
during the school day which results in the dismissal of students by the 
school administration, the day may be counted as a school day provided 
that three-fourths of the instructional hours are met.
    (b) The educational program shall include multi-culture and multi-
ethnic dimensions designed to enable students to function effectively in 
a pluralistic society.
    (1) The school's language arts program shall assess the English and 
native language abilities of its students and provide instruction that 
teaches and/or maintains both the English and the primary native 
language of the school population. Programs shall meet local tribal 
approval.
    (2) The school program shall include aspects of the native culture 
in all curriculum areas. Content shall meet local tribal approval.
    (3) The school program shall assess the learning styles of its 
students and provide instruction based upon that assessment. The method 
for assessing learning styles shall be determined at the local level.
    (4) The school program shall provide for at least one field trip per 
child per year to broaden social and academic experiences.
    (c) All intraschool programs (e.g., library, instructional labs, 
physical education, music, etc.) which are directly related to or affect 
student instruction shall provide services from the beginning of the 
school term through the final class period at the close of the school 
term.

[50 FR 36816, Sept. 9, 1985, as amended at 59 FR 61765, Dec. 1, 1994; 70 
FR 21951, Apr. 28, 2005]



Sec. 36.21  Standard VI--Kindergarten instructional program.

    (a) The curriculum for kindergarten shall provide children with 
experiences which emphasize language development, native language where 
necessary as determined by 25 CFR 39.11(g), and performance of the 
requirements in paragraph (b) of this section. Such programs shall 
assist children in developing positive feelings toward themselves and 
others.
    (b) A kindergarten instructional program shall include but not be 
limited to:
    (1) Language (observing, listening, speaking).
    (2) Exploration of the environment (number, space and time 
relationships, natural science).
    (3) Psychomotor and socialization development.
    (4) Development of imaginative and creative tendencies.
    (5) Health education inclusive of the requirements contained in the 
Act of May 20, 1886, 24 Stat. 69.



Sec. 36.22  Standard VII--Elementary instructional program.

    (a) The elementary instruction programs, grades one through six, 
shall include but need not be limited to:
    (1) Language arts.
    (2) Mathematics.
    (3) Social studies.
    (4) Sciences.
    (5) Fine arts.
    (6) Physical education.
    (b) Each school shall integrate the following content areas into its 
curriculum:
    (1) Career awareness,
    (2) Environmental and safety education,
    (3) Health education (includes requirements contained in 24 Stat. 
69),

[[Page 145]]

    (4) Metric education, and
    (5) Computer literacy.



Sec. 36.23  Standard VIII--Junior high/middle school instructional

program.

    (a) The instructional program shall reflect the school's philosophy 
and the needs of the students and the community. It shall be part of a 
progressive development that begins in the elementary program which 
precedes it and continues to the secondary program which follows.
    (b) The curriculum shall include the following required 
instructional content areas at each grade level but need not be limited 
to:
    (1) Language arts. One unit shall be required of each student every 
year.
    (2) Social studies. One unit shall be required of each student every 
year.
    (3) Mathematics. One unit shall be required of each student every 
year.
    (4) Science. One unit shall be required of each student every year.
    (5) Fine arts and practical arts. One unit each shall be required of 
each student in the junior high/middle school instructional program.
    (6) Computer literacy. One unit shall be required of each student in 
the junior high/middle school instructional program.
    (7) Physical education. One unit shall be required of each student 
in the junior high/middle school instructional program.
    (c) The following content areas shall be integrated into the 
curriculum.
    (1) Career exploration and orientation.
    (2) Environmental and safety education.
    (3) Metric education.
    (4) Consumer economics (including personal finances).
    (5) Health education (includes meeting the requirements contained in 
24 Stat. 69).
    (d) Languages other than English are encouraged to be offered as a 
content area beginning at junior high/middle school level.
    (e) Student enrollment in any laboratory or vocational exploration 
class shall be consistent with applicable health and safety standards.



Sec. 36.24  Standard IX--Secondary instructional program.

    (a) The secondary instructional program shall reflect the philosophy 
of the student, tribe, community, and school, and an awareness of the 
changing world.
    (b) The secondary instructional curriculum shall include the 
following content areas:
    (1) Language arts (communication skills).
    (2) Sciences.
    (3) Mathematics.
    (4) Social studies.
    (5) Fine arts and practical arts.
    (6) Physical education.
    (7) Languages other than English.
    (8) Driver education. (See guidelines available from the applicable 
State Department of Education.)
    (9) Vocational education. Curriculum shall be designed and directly 
related to actual occupational trends (national, regional, and local) 
and to introduce and familiarize students with various occupations in 
technology, industry and business, as well as required special skills 
and the training requisites. Programs shall be directed toward assisting 
students in making career choices and developing consumer skills and may 
include the following:
    (i) Vocational exploration,
    (ii) Vocational skill development, and
    (iii) School/on-the-job cooperative education programs.
    (c) The following shall be integrated into the curriculum:
    (1) Consumer economics (including personal finances),
    (2) Metric education,
    (3) Safety education, and
    (4) Health education. (In addition, the program shall meet the 
requirements contained in 24 Stat. 69.)
    (d) The high school program shall provide program coordination with 
feeder schools, career direction, and preparation for the student 
entering independent living through employment, post-secondary 
education, and/or marriage.
    (e) Yearly class schedules shall take into account the graduation 
requirements of each student.

[[Page 146]]

    (f) Student enrollment in any laboratory or vocational class shall 
be consistent with applicable health and safety standards.
    (g) Schools are encouraged to provide alternative programs that lead 
to high school completion for secondary students who do not function 
successfully in the regular academic setting.

[50 FR 36816, Sept. 9, 1985, as amended at 59 FR 61765, Dec. 1, 1994]



               Subpart D_Student Instructional Evaluation



Sec. 36.30  Standard X--Grading requirements.

    (a) Each school shall implement a uniform grading system which 
assesses a student's mastery of the prescribed objectives of the courses 
of study undertaken. The mastery of prescribed course objectives shall 
be the primary measure of academic attainment for reporting student 
grades on report cards.
    (b) The information derived from student instructional evaluations 
shall be shared with the student and with the parents and shall be used 
to give teachers and students direction for subsequent learning 
activities.
    (c) Parent/teacher and parent/teacher/student conferences focused on 
the student's instructional progress and development shall be held, 
where feasible and practical, to provide an additional means of 
communication between home and school. Residential schools may meet this 
standard by documenting the communication of student grades on report 
cards to parents.
    (d) Each school shall issue a report card to parents of students who 
are under the age of eighteen (18) and to students eighteen (18) years 
of age and older on a regular basis, but not less than four (4) times 
yearly. The report card shall include, but not be limited to, the 
following sections:
    (1) Recommendations and probable promotion status;
    (2) Appropriate signatures and request for return of report cards; 
and
    (3) Student attendance record.
    (e) A summary of each year's final card shall become part of the 
student's permanent school record.



Sec. 36.31  Standard XI--Student promotion requirements.

    Each school shall establish and implement a promotion policy which 
shall be submitted to and approved by the local school board and Agency 
Superintendent for Education or Area Education Programs Administrator, 
as appropriate. The requirements shall include, but not be limited to, 
the following:
    (a) Each grade level or equivalent shall have a minimum criteria for 
student promotion based primarily on measurable mastery of the 
instructional objectives.
    (b) Criterion-referenced tests that evaluate student skills shall be 
utilized for measuring the mastery of instructional objectives. The 
evaluation results shall form the basis for the promotion of each 
student.
    (c) A student who has not participated, either directly or through 
approved alternative instructional methods or programs, in a minimum of 
160 instructional days per academic term or 80 instructional days per 
semester without a written excused absence shall not be promoted. A 
school board or a school committee may review a promotion decision and, 
if warranted due to compelling and/or extenuating circumstances, rescind 
in writing such action on a case-by-case basis. Alternative 
instructional methods shall be submitted in writing for approval by the 
Agency Superintendent for Education or Area Education Programs 
Administrator, as appropriate.



Sec. 36.32  Standard XII--Graduation requirements for a high school 

diploma.

    Graduation requirements contained under this section shall be 
applied beginning with the graduating class of the 1987-88 school year.
    (a) Satisfactory completion of a minimum number of units shall be 
the measure for the issuance of a high school diploma.
    (b) To graduate, a student shall earn 20 units in a four year high 
school program unless the state in which the school is located exceeds 
these requirements, in which case the state's requirements shall apply; 
fifteen (15) units shall be required as follows:

[[Page 147]]

    (1) Language arts--four (4) units.
    (2) Mathematics--three (3) units.
    (3) Social studies--three (3) units.
    (i) One (1) unit in United States history;
    (ii) One-half (\1/2\) unit in civics/government;
    (iii) One-half (\1/2\) unit in tribal history/government;
    (iv) One-half (\1/2\) unit in Indian studies; and
    (v) One-half (\1/2\) unit in any other social studies;
    (4) Science--two (2) units.
    (i) One (1) unit in the general science area.
    (ii) One (1) unit in laboratory science areas, i.e., chemistry, 
physics, biology, zoology, laboratory anatomy.
    (5) Physical education--one (1) unit.
    (6) Practical arts--one (1) unit. Credit in any vocational course 
may also be used to satisfy this required unit.
    (7) Fine arts--one (1) unit. Music, art, dance, drama, theatre, and 
other fine arts courses may be used to satisfy this required unit. These 
are minimum requirements; local schools may establish academic or 
vocational requirements beyond those prescribed by these standards.
    (c) A school with an average enrollment of fewer than 75 students 
may offer subjects in alternate years. If schools use this pattern, 
alternating pairs of subjects shall be listed and approved by the Agency 
Superintendent for Education or Area Education Programs Administrator, 
as appropriate.
    (d) Credits earned through approved correspondence or extension 
study may be accepted if such credits are from schools approved or 
accredited by the state in which they are located or by a college or 
university which is regionally accredited for such purposes.
    (e) Students who successfully complete the requirements of the High 
School Proficiency Examination in the State in which the school is 
located shall receive an endorsement so stating on their diplomas.



                     Subpart E_Instructional Support



Sec. 36.40  Standard XIII--Library/media program.

    (a) Each school shall provide a library/media program which shall, 
as a minimum, meet the applicable state and/or regional standards, but 
shall not be limited to these, and shall include the following:
    (1) A written set of instructional and service objectives shall be 
established that is integrated and consistent with the school's 
educational goals and philosophy. The librarian or educational media 
specialist, with students and staff, shall set objectives based on 
assessed academic and residential needs. The program and services will 
be evaluated yearly by the principal and the librarian or educational 
media specialist to determine the degree to which all objectives have 
been met.
    (2) A written policy for the selection of materials and equipment 
shall be developed by a library committee in collaboration with the 
librarian and be approved by the school board. The collection of 
materials shall include as a minimum the following:
    (i) A collection of books suitable for the range of student 
abilities and interests being served in the following ADM ratios.
    (A) Elementary K-6, 15 books per student
    (B) Middle 7-8, 12 books per student
    (C) Secondary 9-12, 10 books per student

It is required that materials pertaining to Indian Tribes and/or Alaskan 
Natives be integrated within this basic collection.
    (ii) Eight (8) to 12 percent of the basic collection must be 
composed of reference books, currently relevant and in a state of good 
physical condition, for practical use. Single copies of the principal 
textbooks used to complement instruction shall be in the collection, but 
textbooks cannot be counted toward this standard.
    (iii) A periodical collection, suitable for the range of student 
abilities and interests being served, consisting of one (1) periodical 
for every ten (10) students, shall be maintained. Schools of over 200 
will have a base collection of 20 periodicals.
    (iv) A professional collection for the school staff shall be 
developed and maintained by the librarian in cooperation with a faculty 
committee.

[[Page 148]]

    (v) A variety of audio-visual materials, suitable for the range of 
instruction being provided, of at least 750 items or five (5) items for 
each student, whichever is larger, and inclusive of materials located in 
the classrooms shall be maintained. This category includes some of each 
of the following: Tactile objects, globes, models, maps, films, film-
strips, microforms, slides, audio and video tapes, recordings, 
transparencies and graphics, and the equipment to use all of these. 
Multiple items within a specific set of materials will be counted as 
separate items.
    (3) There shall be a library media center serviced by a librarian. 
Schools with fewer than 200 students are encouraged, wherever feasible, 
to cooperate in sharing librarian resources. Schools within an Agency 
and/or Area may cooperatively share the costs and services of a 
librarian who shall facilitate sharing of the combined available 
resources among the cooperating schools in accordance with the following 
ratios:

                         School Enrollment (ADM)

Up to 100--\1/5\ time librarian
101-200--\1/5\ time librarian and \1/2\ time library aide or 20 hours of 
library activity
201-400--1 full-time librarian or \2/5\ time librarian provided the 
school has a full-time library aide
401+--1 full-time librarian and a full-time library aide

    (4) All libraries must conduct an annual inventory of available 
books, materials, and equipment in accordance with the acquisitions and 
selection policies.



Sec. 36.41  Standard XIV--Textbooks.

    (a) Each school shall establish a textbook review committee composed 
of teachers, parents, and students, and school board members. 
Appointment to the textbook review committee shall be subject to school 
board approval.
    (b) The textbook review committee shall establish a procedure and 
criteria for the annual review of textbooks and other materials used to 
complement instruction. The criteria shall include, but not be limited 
to, the following:
    (1) The textbook content shall meet the course objectives which are 
within the adopted school curriculum.
    (2) The textbooks shall, as much as possible, reflect cultures 
accurately.
    (3) The textbooks shall be current, in good physical condition, and 
varied in reading levels.
    (c) Each school shall equitably distribute instructional materials 
to all classrooms. Each school shall inventory all property and 
equipment annually prior to requisitioning additional materials. Copies 
of the inventory shall be kept on file by the school staff.



Sec. 36.42  Standard XV--Counseling services.

    Each school shall offer student counseling services concerned with 
physical, social, emotional, intellectual, and vocational growth for 
each individual. Counseling services shall be included in a school-wide 
assessment program.
    (a) Each Agency and Area, as appropriate, shall institute and 
supervise an assessment program for its schools in order to provide for 
the objective assessment of student academic performance. Required 
formal tests shall be administered annually to all regular program 
students in grades 4, 8, and 12. (The testing of special education and 
gifted/talented students shall be in accordance with respective 
regulations.) If required by state certification standards, schools may 
use the state mandated academic achievement tests and accompanying 
requirements. These formal tests and their subtest contents, as well as 
the test-related procedures, shall include, but not be limited to, the 
following:
    (1) Each Spring, schools shall conduct testing for grades 4, 8, and 
12 using a current version of a standardized academic achievement test 
based upon the national assessment standards designed to assess higher 
order thinking skills. All schools shall keep a current record, with the 
Office of Indian Education Programs, of the test the school administers 
each Spring and the testing dates.
    (2) Schools shall use some form of performance-based or authentic 
assessment in addition to standardized achievement testing.
    (3) Each school shall report the summative results of its assessment 
program to its respective Agency or

[[Page 149]]

Area, as appropriate, and its school board.
    (4) Parents/guardians shall be informed of their children's 
assessment results and provided with an explanation and interpretation 
to ensure adequate understanding of the results.
    (5) Each school's instructional program shall establish an ongoing 
student academic assessment program to ensure that defined assessment 
procedures are in place. The program shall include regular training in 
basic assessment procedures and routines for all teachers and other 
staff involved in student assessment.
    (6) Each Agency and Area, as appropriate, shall report the results 
of each school's formal Spring tests to the Office of Indian Education 
Programs by August 1 of each year. Summative information from 
performance-based and authentic assessments shall be reported at the 
same time.
    (b) Each counseling program shall provide the following:
    (1) Each school having a minimum school ADM of 200 students shall 
make provisions for the full-time professional services of a counselor, 
and each school enrolling fewer than 200 students shall make provisions 
for a part-time professional counselor.
    (2) The counselors shall be familiar with the unique tribal, social, 
and economic characteristics of students.
    (3) The counseling program shall contain the following:
    (i) A written referral procedure;
    (ii) Counseling techniques and documentation procedures to provide 
for the career, academic, social, and personal needs of the students 
which are based on the cultural beliefs and values of the students being 
served;
    (iii) Preventative and crisis counseling on both individual and 
group bases;
    (iv) Confidentiality and security of counseling records for each 
student; and
    (v) Design and implementation of orientation programs to facilitate 
the pupil's transition from elementary to junior high/middle school and 
from junior high/middle school to high school.
    (vi) Each junior or middle school and high school student shall 
receive academic counseling a minimum of twice yearly during which time 
the counselor shall assist the student in developing a written academic 
and career plan based on ability, aptitude, and interests. Additionally, 
counselors will assist high school students in selecting courses which 
satisfy the school's and the state's graduation requirements and the 
student's academic and career plan. Further, seniors will be given aid 
in completing registration and/or financial assistance applications for 
either vocational or academic post-secondary institutions.
    (vii) Each high school counseling program shall be required to have 
on file for each student a planned academic program of studies which is 
available from the regular course offerings of the school to meet the 
student's career objectives and which will show that the student has 
received counseling.

[50 FR 36816, Sept. 9, 1985, as amended at 59 FR 61766, Dec. 1, 1994]



Sec. 36.43  Standard XVI--Student activities.

    All schools shall provide and maintain a well-balanced student 
activities program based on assessment of both student and program 
needs. Each activity program shall help develop leadership abilities and 
provide opportunities for student participation but not be limited to 
activities that include special interest clubs, physical activities, 
student government, and cultural affairs. The activity program shall be 
an integral part of the overall educational program.
    (a) All student activities shall be required to have qualified 
sponsors and be approved by the school supervisor, and the school board 
shall approve the overall activity plan. A qualified sponsor is a 
professional staff member of the school that is given responsibility to 
provide guidance or supervision for student activities.
    (b) A plan of student activity operations shall be submitted, by 
each activity at the beginning of each school year, to the school 
supervisor. The plan will include the purpose, structure, coordination, 
and planned types of fund-raising activities.
    (c) School may participate in interscholastic sports and activities 
on an

[[Page 150]]

informal or formal basis. On an informal basis, the Bureau-operated 
schools will coordinate with other schools in setting up a schedule of 
sports and games. Schools that participate in state-recognized leagues 
will abide by those state rules regulating inter-school competition.
    (d) Until comparable competitive opportunities are provided to all 
students, regardless of sex, no student shall be barred from 
participation in interscholastic competition in noncontact sports except 
on the basis of individual merit.
    (e) Residential schools shall plan and provide an intramural program 
for all students. The program shall include a variety of scholastic and 
sport activities.
    (f) Students shall be involved only in activities which are 
sanctioned by the school.
    (g) All student activities involved only in fund raising are 
required to establish a school/student activity bank account following 
school/student banking procedures outlined under 25 CFR 31.7. All 
student activity accounts shall be audited annually.
    (h) The school shall provide for the safety and welfare of students 
participating in school-sponsored activities.
    (i) Each sponsor of a student activity will be given orientation and 
training covering the responsibilities of a sponsor by the school 
supervisor.



              Subpart F_Evaluation of Educational Standards



Sec. 36.50  Standard XVII--School program evaluation and needs 

assessment.

    Each school shall complete a formal, formative evaluation at least 
once every seven (7) years beginning no later than the second complete 
school year following the effective date of this part. Schools shall 
follow state and/or regional accreditation, or accreditation 
requirements equal to the state in which a school is located. Each 
school shall follow the prescribed evaluation cycle. The primary purpose 
of this evaluation will be to determine the effects and quality of 
school programs and to improve the operations and services of the school 
programs.
    (a) Each school's evaluation design or model will provide objective 
and quantitative analysis of each area to be evaluated. The analysis 
shall include product and process evaluation methods. The areas to be 
reviewed will include, but not be limited to, the following:
    (1) School philosophy and objectives.
    (2) Administrative and organizational requirements.
    (3) Program planning and implementation.
    (4) Curriculum development and instruction.
    (5) Primary education.
    (6) Program of studies for elementary, junior high/middle, and high 
schools.
    (7) Grading requirements.
    (8) Promotion requirements.
    (9) High school graduation requirements.
    (10) Library/media.
    (11) Textbooks and other instructional materials.
    (12) Counseling services.
    (13) Medical and health services.
    (14) Student activities.
    (15) Transportation services.
    (16) Staff certification and performance.
    (17) Facilities (school plant).
    (18) Parent and community concerns.
    (19) School procedures and policies.
    (20) School board operations.
    (b) The Director, within six (6) months from the effective date of 
this part, shall distribute to each school, Agency or Area, as 
appropriate, a standardized needs assessment and evaluation instrument 
with guidelines for developing and applying a locally appropriate 
evaluation model for carrying out the requirements of this standard.



Sec. 36.51  Standard XVIII--Office of Indian Education Programs and 

Agency monitoring and evaluation responsibilities.

    (a) The Office of Indian Education Programs shall monitor and 
evaluate the conformance of each Agency or Area, as appropriate, and its 
schools with the requirements of this part. In addition, it shall 
annually conduct onsite monitoring at one-third of the Agencies and 
Areas, thereby monitoring onsite each Agency and/or Area

[[Page 151]]

at least once every three (3) years. Within 45 days of the onsite visit, 
the Director shall issue to each Agency Superintendent for Education or 
Area Education Programs Administrator, as appropriate, a written report 
summarizing the monitoring findings and ordering, as necessary, required 
actions to correct noted deficiencies.
    (b) Each Agency or Area, as appropriate, in conjunction with its 
school board shall monitor and evaluate the conformance of its school 
with the requirements of this part through an annual onsite evaluation 
involving one-third of the schools annually, thereby monitoring onsite 
each school at least once every three (3) years. Within 30 days of the 
onsite visit, the Agency Superintendent for Education or Area Education 
Programs Administrator, as appropriate, shall issue to the local school 
supervisor and local school board a written report summarizing the 
findings and ordering, as necessary, required actions to correct noted 
deficiencies.
    (c) Schools, Agencies, and Areas shall keep such records and submit 
to the responsible official or designee accurate reports at such times, 
in such form, and containing such information as determined by that 
official to be necessary to ascertain conformance with the requirements 
of this part.
    (d) Schools, Agencies, and Areas shall permit access for examination 
purposes by the responsible official, or any duly authorized designee, 
to any school records and other sources of information which are related 
or pertinent to the requirements of this part.
    (e) The Office of Indian Education Programs, Agency Superintendent 
for Education, or Area Education Programs Administrator, as appropriate, 
shall annually conduct a summative evaluation to assess the degree to 
which each Bureau educational policy and administrative procedure 
assists or hinders schools in complying with the requirements of this 
part. This will include, but not be limited to, the following actions:
    (1) Evaluate current policies and practices not related to this part 
and the effects thereof on the amount of time and resources required 
which otherwise would be available for these standards;
    (2) Modify any policies and practices which interfere with or 
compromise a school's capability to achieve and maintain these 
standards;
    (3) Invite non-Federal agencies to evaluate the effects current 
policies and procedures have had on complying with the requirements of 
this part; and
    (4) Submit annually to the Director a copy of the summative 
evaluation.



                  Subpart G_National Dormitory Criteria

    Source: 50 FR 36816, Sept. 9, 1985, unless otherwise noted. 
Redesignated at 70 FR 21951, Apr. 28, 2005.



Sec. 36.70  Scope of subpart.

    This subpart contains the criteria and mandatory requirements for 
all dormitories. The individual employee responsibilities, based on the 
terminology used to designate specific employee positions and their 
assigned responsibilities, may vary depending upon whether the dormitory 
is a direct Bureau operation or contract operation.



Sec. 36.71  General provisions.

    (a) The Homeliving Specialist is the administrative head of the 
dormitory who shall have sufficient autonomy and authority to ensure the 
successful functioning of all phases of the dormitory program, and, in 
dormitories attached to a school, shall report to the school supervisor.
    (b) In situations where a Bureau-funded dormitory is maintained, 
operated, and administered separately from the academic program, this 
dormitory will ensure access to or provide a guidance program equal to 
the standards as those under Sec. 36.42 of this part.
    (c) Students who qualify for residential services under the 
Exceptional Child Program must have, in their individualized education 
plan, objectives that are to be met in the homeliving program. 
Documentation to support completion of these objectives is required.

[[Page 152]]

    (d) Dormitories with intense residential guidance programs shall 
have updated written descriptions of the programs with stated purposes, 
objectives, activities, staffing, and evaluation system. Each student 
diagnosed as being in need of intense guidance services shall have a 
file which contains the following:
    (1) Documentation of eligibility according to the definition 
contained under 25 CFR 39.11(h);
    (2) Documentation of a diagnosis of the student's needs;
    (3) A placement decision signed by a minimum of three (3) staff 
members;
    (4) An individualized treatment plan which includes:
    (i) Referral date and referral sources;
    (ii) Diagnosis identifying specific needs;
    (iii) Specific goals and objectives to be met;
    (iv) Record of specific services including beginning and ending 
dates;
    (v) Designation of responsible staff person(s); and
    (vi) A means by which the student's progress and the effectiveness 
of the individualized treatment plan can be periodically reviewed and 
reevaluated.
    (e) Each dormitory program that does not have an academic program 
under subpart C shall make available career counseling information on 
educational and occupational opportunities and help students assess 
their aptitudes and interests. This shall be done on a continuing basis, 
beginning at the elementary level.
    (f) Counseling services shall be made available for students during 
non-academic hours.
    (g) Provisions shall be made to interpret to staff, students, and 
parents the administrative policies and practices of the dormitory. This 
provision shall be made in the form of a manual, handbook, brochure, or 
other written document that will be made available and explained to all 
who are interested. The topics shall include, but not be limited to, the 
following:
    (1) Statement of philosophy and goals;
    (2) Description of how policies are developed and administered; and
    (3) A copy of the student rights handbook.
    (h) Program will be designed and orientation programs implemented to 
facilitate the pupils' transition from elementary to middle school and 
from middle to high school, where appropriate.
    (i) All dormitories shall provide and maintain a well-balanced 
student activities program based on assessment of both student and 
program needs. Programs shall provide opportunities for student 
participation in, but not limited to, activities that include special 
interest clubs, physical activities, student government, and cultural 
affairs. In addition, the following provisions shall be adhered to:
    (1) Dormitories shall plan and provide for an intramural program 
that includes a variety of scholastic and sport activities.
    (2) A plan of operation shall be submitted by each activity at the 
beginning of each school year to the school supervisor and approved by 
the school board. The plan shall include the purpose, structure, and 
coordination of all activities.
    (3) All dormitories conducting fund-raising activities are required 
to established a school/student activity bank account following school/
student banking procedures outlined under 25 CFR Sec. 31.7. All 
accounts shall be audited annually.



Sec. 36.72  Elementary level dormitories.

    (a) Each dormitory program shall provide or have access to the 
services of a qualified counselor who holds a valid counselor 
certificate and has training and experience in dealing with elementary 
students.
    (b) Counselors may be assigned minimal or temporary school 
supervisory duties. A school supervisor shall not serve in the capacity 
of counselor while holding the position of school supervisor.
    (c) The dormitory program shall have the following ratios (ADM) for 
counselors:

Less than 75 students: \1/2\ time counselor
75-150 students: 1 full-time counselor
151-225 students: 1 full-time and \1/2\ time counselor
226-300 students: 2 full-time counselors


For dormitories that exceed 300 students (ADM), additional counselor 
time

[[Page 153]]

shall be provided according to the above ratio. Dormitories within an 
Agency are encouraged to try a variety of approaches to guidance 
service. In this arrangement, the counselor's time may be shared between 
dormitories. As long as one half-time, professionally-trained counselor 
is provided, the dormitory program may use supportive personnel and 
teachers to meet the ratio.
    (d) Dormitory counselors' work hours shall be arranged to provide 
maximum availability of services to students when they are not in 
academic session.



Sec. 36.73  Secondary level dormitories.

    (a) Each dormitory program shall provide or have access to the 
services of a qualified counselor who holds a valid counselor 
certificate and has training and experience dealing with secondary 
students.
    (b) Counselors may be assigned minimal or temporary school 
supervisory duties. A school supervisor shall not serve in the capacity 
of a counselor while holding a position as a school supervisor.
    (c) The dormitory program shall have the following ratios (ADM) for 
counselor:

Less than 100 students: \1/2\ time counselor
100-199 students: 1 full-time counselor
200-300 students: 1 full-time and \1/2\ time counselor


For dormitories that exceed 300 students (ADM), counselor time will be 
provided according to the above radio. As long as one half-time, 
professionally trained counselor is provided, the dormitory program may 
use supportive personnel and teachers to meet the ratio.
    (d) Counselors' work hours shall be arranged to provide maximum 
availability of service to students when they are not in academic 
session.



Sec. 36.74  Homeliving (dormitory operations).

    Staff shall be provided so that at least one adult is on duty at all 
times when students are in the dormitory. Each dormitory program shall 
include, but not be limited to, the following:
    (a) Every dormitory facility shall be under the direct supervision 
of a dormitory manager. A building composed of separate wings or several 
floors shall be counted as one facility.
    (b) Each dormitory operation shall provide the following minimum on-
duty paraprofessional staff to student ratio (ADM):

 
                                                                Ratio
 
                              Grades 1 to 6
 
Weekdays:
  Mornings.................................................         1:30
  During school hours......................................         1:40
  Evenings.................................................         1:30
  Nights...................................................         1:40
Weekends:
  Mornings.................................................         1:30
  Evenings.................................................         1:30
  Nights...................................................         1:40
 
                             Grades 7 to 12
 
Weekdays:
  Mornings.................................................         1:50
  During school hours......................................         1:80
  Evenings.................................................         1:50
  Nights...................................................         1:80
Weekends:
  Mornings.................................................         1:50
  Evenings.................................................         1:50
  Nights...................................................         1:80
 


Dormitory operations for grades one through eight are encouraged to 
provide additional staff aides during the time children in the primary 
grades are dressing and preparing for breakfast and school. Staff ratios 
on weekends shall be reduced at boarding schools to adjust for those 
students who go home, according to the above ratio.
    (c) Group instruction and discussion session shall be held on 
various topics at least on a monthly basis, but preferably on a weekly 
basis. Topics to be presented may be determined by a committee comprised 
of students, staff, administrators, and parents. These topics shall 
include discussions of problems or needs that exist at the location and/
or community.
    (d) Each dormitory facility shall be cleaned daily when in operation 
to provide a safe and sanitary environment. Student assistance may be 
utilized; however, the responsibility for the cleanliness, safety, and 
sanitation of the facility shall rest with the dormitory administrator. 
Bed and bath linen shall be changed a minimum of once per week. 
Necessary toiletry items shall be made available to those

[[Page 154]]

students who are economically unable to provide them.
    (e) Dormitory operations shall have access to clothes washers and 
dryers. Equipment shall be utilized only for students' clothing. In 
grades one through six, residential paraprofessionals shall be 
responsible for the upkeep of clothing. Students in grades seven through 
12 shall be responsible for the upkeeping of their own clothing. In 
grades seven through 12, students shall be allowed to wash and dry their 
clothing after training is given in using the machines. Contracting for 
student clothing care may also be utilized under this part.
    (f) A system of student accountability shall be established at each 
residential facility. Minimum requirements of the system shall include 
an attendance procedure at least four (4) times per normal waking day 
for grades one through eight and two (2) times for grades nine through 
12. However, students in grades seven through 12 may be allowed to have 
a self check-in system provided that an employee reviews the roster 
within an hour of each designated check-in time. During sleeping hours, 
students in grades one through eight shall be checked on an hourly 
basis; students in grades nine through 12 shall be checked every two (2) 
hours. At the start of each school day, residential facilities 
supervisors shall report to the school office which students will not be 
in attendance. An intra-school pass system shall be developed and 
implemented.
    (g) Students shall be permitted to be released from the dormitory 
overnight, on weekends, or during vacation periods only when prior 
written approval is granted by the parent or guardian and only if the 
local school board adopts a policy governing the conditions of release. 
Such policy must adhere to the concept that the dormitory/school is 
acting in ``loco parentis.''
    (h) Dormitory facilities shall have a designated room or rooms which 
shall be utilized as an isolation room(s) for student health care needs. 
Students isolated in such room(s) shall be checked on a minimum of an 
hourly basis.
    (i) Each dormitory operation shall develop a written procedure for 
handling emergency situations. Such a procedure shall include names and 
telephone numbers of the responsible parties to contact in case of 
emergencies. Situations that shall be considered emergencies include 
life-threatening medical/health problems, power failures, walkaways, 
etc.
    (j) A tutoring program shall be developed and implemented to assist 
those students having academic difficulties. Each dormitory operation 
shall provide a time and place where tutoring, homework, reading, and/or 
studying can be done for at least one hour daily.
    (k) The responsible dormitory supervisor shall be accountable for 
reporting any hazardous or defective items in the dormitory to the 
appropriate supervisor and plant manager.
    (l) Leisure-time activities shall be provided to dormitory students. 
These activities may include recreational activities, clubs, arts/
crafts, and reading of newspapers and periodicals. Television viewing 
shall not be considered as structured leisure time unless a scheduled 
program provides educational benefit.
    (m) Lines of communication shall be established with other local 
social service agencies to assist in the resolution of problems that may 
extend beyond the confines of the dormitory. These agencies may be 
State, tribal, or Federal.
    (n) Dormitory personnel will receive training in emergency first aid 
procedures.



Sec. 36.75  Space and privacy.

    The configuration of sleeping space and other living areas will vary 
according to the grade levels of the occupants; however, sleeping rooms 
shall provide sufficient space and privacy for the resident students. 
The following space and privacy requirements shall be required for 
dormitories. A dormitory shall be considered at capacity when the 
addition of one more student would put the school out of compliance with 
the space standard; and additional students shall not be admitted for 
residential purposes.
    (a) Dormitory facilities for grades one through eight shall have 
space footage averaging from 40 to 60 square

[[Page 155]]

feet per student for sleeping rooms, exclusive of furniture (wardrobe, 
desks, beds, etc.).
    (b) Dormitories housing students who are in grades nine through 12 
shall provide sleeping rooms with a per student square footage averaging 
from 50 to 70 square feet, exclusive of furniture (wardrobe, desks, 
beds, etc.).
    (c) When new dormitories are constructed or existing dormitories are 
remodeled, sleeping rooms shall be constructed not to exceed a maximum 
of four students per room for grades one through 12.
    (d) Each peripheral dormitory shall have a set of encyclopedias, one 
dictionary for every ten students (ADM), and ten other general reference 
materials such as an atlas or periodical subscription.



Sec. 36.76  Compliance for the National Criteria for Dormitory 

Situations.

    Implementation of the National Criteria for Dormitory Situations 
shall begin immediately on the effective date of this part. A dormitory 
is in compliance when it has met and satisfied all the requirements 
under subpart H.
    (a) The education supervisor(s) or peripheral dormitory supervisor 
shall report to their supervisor(s) within 45 days after the start of 
each school term with a compliance report to the local school board that 
attests to whether a dormitory is in compliance or noncompliance; within 
15 days, the compliance report shall be submitted to the Agency 
Superintendent for Education or Area Education Programs Administrator, 
as appropriate.
    (b) The school supervisor or the peripheral dormitory supervisor 
shall notify in writing each parent or legal guardian of the dormitory 
noncompliance status within 60 days after the beginning of the school 
term.
    (c) The compliance report shall contain the following:
    (1) A written statement attesting to the fact that the dormitory has 
or has not met all of the requirements.
    (2) A specific listing of the requirements that have not been met.
    (3) A detailed action plan designed to correct deficiencies.
    (4) A statement signed by the local school board attesting to the 
fact that it has been apprised of the school's compliance status and 
concurs or does not concur with the action plan to reach compliance.
    (d) The Agency Superintendent for Education or the Area Education 
Programs Administrator, as appropriate, shall review each dormitory 
compliance report and shall provide the Director with a detailed report 
by November 15 each year which shall include:
    (1) A list of dormitories indicating those not in compliance.
    (2) A detailed statement as to why each school indicated is not in 
compliance and how it is proposed to reach compliance.
    (3) A plan of action outlining what actions the Agency or Area 
education line officers, as appropriate, will take to assist the 
dormitories to reach compliance.
    (e) In the event a dormitory is not in compliance for two 
consecutive years due to conditions which can be corrected locally, 
appropriate personnel actions shall be initiated at all appropriate 
levels of school/dormitory administration. Noncompliance may be grounds 
for dismissal.
    (f) The Secretary shall submit to the appropriate committees of 
Congress at the time of the annual budget request a detailed plan to 
bring all Bureau and contract boarding schools up to the criteria 
established under section 1122 of Pub. L. 95-561, and 25 U.S.C. 2002. 
Such plan shall include, but not be limited to, predictions for the 
relative need for each boarding school in relation to the criteria 
established under this section and specific cost estimates for meeting 
such criteria at each school up to the level required by such criteria.



Sec. 36.77  Waivers and revisions.

    (a) The tribal governing body (tribe), or the local school board 
(LSB), if so designated by the tribe, shall have the local authority to 
waive or revise in part or in whole, the standard(s) established in this 
part if the standard(s) are determined to be inappropriate or if they 
fail to take into account specific needs of the tribe's children. This 
provision includes both tribal and Bureau-

[[Page 156]]

operated schools. When the tribe or LSB, if designated by the tribe, 
waives or revises a standard, it shall submit the waiver or revision to 
the Assistant Secretary for approval within 60 days. Until this approval 
is obtained, the standard of this part or minimum state standards shall 
apply to the affected school(s).
    (b) All revised standards shall be submitted to the Assistant 
Secretary in writing in accordance with the following procedure:
    (1) Waivers and revisions shall be submitted by November 15 each 
school year to accompany the dormitory's annual standards compliance 
report.
    (2) The section or part to be waived shall be specified, and the 
extent to which it is to be deviated from shall be described.
    (3) A justification explaining why the alternative standard is 
determined necessary shall be included with the revised standard.
    (4) Measurable objectives and the method of achieving the 
alternative standard along with the estimated cost of implementation 
shall be stated.
    (c) The Assistant Secretary shall respond in writing within 45 days 
of receipt of the waiver or revision. The waiver shall be granted or the 
revision shall be accepted by the Assistant Secretary unless 
specifically rejected for good cause and in writing. The written 
rejection shall be sent to the affected tribe(s) and LSB. This rejection 
shall be final. The waiver is granted or revision is established 
automatically on the 46th day of receipt if no written response is 
provided by the Assistant Secretary.
    (d) The Assistant Secretary shall assist the school board of an 
Indian-controlled contract school in the implementation of the standards 
established in this part if the school board requests that these 
standards, in part or in whole, be implemented. At the request of an 
Indian-controlled contract school board, the Assistant Secretary shall 
provide alternative or modified standards to those established in this 
part to take into account the needs of the Indian children and Indian-
controlled contract school.

[59 FR 61766, Dec. 1, 1994]



PART 37_GEOGRAPHIC BOUNDARIES--Table of Contents




Sec.
37.100 What is the purpose of this part?
37.101 What definitions apply to the terms in this part?
37.102 How is this part organized?
37.103 Information collection.

                          Subpart A_All Schools

37.110 Who determines geographic attendance areas?
37.111 What role does a tribe have in issues relating to school 
          boundaries?
37.112 Must each school have a geographic attendance boundary?

 Subpart B_Day Schools, On-Reservation Boarding Schools, and Peripheral 
                                  Dorms

37.120 How does this part affect current geographic attendance 
          boundaries?
37.121 Who establishes geographic attendance boundaries under this part?
37.122 Once geographic attendance boundaries are established, how can 
          they be changed?
37.123 How does a Tribe develop proposed geographic attendance 
          boundaries or boundary changes?
37.124 How are boundaries established for a new school or dorm?
37.125 Can an eligible student living off a reservation attend a school 
          or dorm?

               Subpart C_Off-Reservation Boarding Schools

37.130 Who establishes boundaries for Off-Reservation Boarding Schools?
37.131 Who may attend an ORBS?

    Authority: Public Law 107-110, 115 Stat. 1425.

    Source: 70 FR 22204, Apr. 28, 2005, unless otherwise noted.



Sec. 37.100  What is the purpose of this part?

    (a) This part:
    (1) Establishes procedures for confirming, establishing, or revising 
attendance areas for each Bureau-funded school;
    (2) Encourages consultation with and coordination between and among 
all agencies (school boards, tribes, and others) involved with a 
student's education; and
    (3) Defines how tribes may develop policies regarding setting or 
revising

[[Page 157]]

geographic attendance boundaries, attendance, and transportation funding 
for their area of jurisdiction.
    (b) The goals of the procedures in this part are to:
    (1) Provide stability for schools;
    (2) Assist schools to project and to track current and future 
student enrollment figures for planning their budget, transportation, 
and facilities construction needs;
    (3) Adjust for geographic changes in enrollment, changes in school 
capacities, and improvement of day school opportunities; and
    (4) Avoid overcrowding or stress on limited resources.



Sec. 37.101  What definitions apply to the terms in this part?

    Act means the No Child Left Behind Act, Public Law 107-110, enacted 
January 8, 2002. The No Child Left Behind Act reauthorizes and amends 
the Elementary and Secondary Education Act (ESEA) and the amended 
Education Amendments of 1978.
    Bureau means the Bureau of Indian Affairs in the Department of the 
Interior.
    Geographic attendance area means a physical land area that is served 
by a Bureau-funded school.
    Geographic attendance boundary means a line of demarcation that 
clearly delineates and describes the limits of the physical land area 
that is served by a Bureau-funded school.
    Secretary means the Secretary of the Interior or a designated 
representative.



Sec. 37.102  How is this part organized?

    This part is divided into three subparts. Subpart A applies to all 
Bureau-funded schools. Subpart B applies only to day schools, on-
reservation boarding schools, and peripheral dorms--in other words, to 
all Bureau-funded schools except off-reservation boarding schools. 
Subpart C applies only to off-reservation boarding schools (ORBS).



Sec. 37.103  Information collection.

    Notwithstanding any other provision of law, no person is required to 
respond to, nor shall any person be subject to a penalty for failure to 
comply with, a collection of information subject to the requirements of 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), 
unless that collection of information displays a currently valid Office 
of Management and Budget (OMB) Control Number. This part involves 
collections of information subject to the PRA in Sec. Sec. 37.122(b), 
and 37.123(c). These collections have been approved by OMB under control 
number 1076-0163.



                          Subpart A_All Schools



Sec. 37.110  Who determines geographic attendance areas?

    The Tribal governing body or the Secretary determines geographic 
attendance areas.



Sec. 37.111  What role does a tribe have in issues relating to school

boundaries?

    A tribal governing body may:
    (a) Establish and revise geographical attendance boundaries for all 
but ORB schools;
    (b) Authorize ISEP-eligible students, residing within the tribe's 
jurisdiction, to receive transportation funding to attend schools 
outside the geographic attendance area in which the student lives; and
    (c) Authorize tribal member students who are ISEP-eligible and are 
not residing within the tribe's jurisdiction to receive transportation 
funding to attend schools outside the student's geographic attendance 
area.



Sec. 37.112  Must each school have a geographic attendance boundary?

    Yes. The Secretary must ensure that each school has a geographic 
attendance area boundary.



 Subpart B_Day Schools, On-Reservation Boarding Schools, and Peripheral 
                                  Dorms



Sec. 37.120  How does this part affect current geographic attendance 

boundaries?

    The currently established geographic attendance boundaries of day 
schools, on-reservation boarding schools, and peripheral dorms remain in 
place unless the tribal governing body revises them.

[[Page 158]]



Sec. 37.121  Who establishes geographic attendance boundaries under 

this part?

    (a) If there is only one day school, on-reservation boarding school, 
or peripheral dorm within a reservation's boundaries, the Secretary will 
establish the reservation boundary as the geographic attendance 
boundary;
    (b) When there is more than one day school, on-reservation boarding 
school, or peripheral dorm within a reservation boundary, the Tribe may 
choose to establish boundaries for each;
    (c) If a Tribe does not establish boundaries under paragraph (b) of 
this section, the Secretary will do so.



Sec. 37.122  Once geographic attendance boundaries are established, 

how can they be changed?

    (a) The Secretary can change the geographic attendance boundaries of 
a day school, on-reservation boarding school, or peripheral dorm only 
after:
    (1) Notifying the Tribe at least 6 months in advance; and
    (2) Giving the Tribe an opportunity to suggest different 
geographical attendance boundaries.
    (b) A tribe may ask the Secretary to change geographical attendance 
boundaries by writing a letter to the Director of the Office of Indian 
Education Programs, explaining the tribe's suggested changes. The 
Secretary must consult with the affected tribes before deciding whether 
to accept or reject a suggested geographic attendance boundary change.
    (1) If the Secretary accepts the Tribe's suggested change, the 
Secretary must publish the change in the Federal Register.
    (2) If the Secretary rejects the Tribe's suggestion, the Secretary 
will explain in writing to the Tribe why the suggestion either:
    (i) Does not meet the needs of Indian students to be served; or
    (ii) Does not provide adequate stability to all affected programs.



Sec. 37.123  How does a Tribe develop proposed geographic attendance 

boundaries or boundary changes?

    (a) The Tribal governing body establishes a process for developing 
proposed boundaries or boundary changes. This process may include 
consultation and coordination with all entities involved in student 
education.
    (b) The Tribal governing body may delegate the development of 
proposed boundaries to the relevant school boards. The boundaries set by 
the school boards must be approved by the Tribal governing body.
    (c) The Tribal governing body must send the proposed boundaries and 
a copy of its approval to the Secretary.



Sec. 37.124  How are boundaries established for a new school or dorm?

    Geographic attendance boundaries for a new day school, on-
reservation boarding school, or peripheral dorm must be established by 
either:
    (a) The tribe; or
    (b) If the tribe chooses not to establish boundaries, the Secretary.



Sec. 37.125  Can an eligible student living off a reservation attend 

a school or dorm?

    Yes. An eligible student living off a reservation can attend a day 
school, on-reservation boarding school, or peripheral dorm.



               Subpart C_Off-Reservation Boarding Schools



Sec. 37.130  Who establishes boundaries for Off-Reservation Boarding

Schools?

    The Secretary or the Secretary's designee, in consultation with the 
affected Tribes, establishes the boundaries for off-reservation boarding 
schools (ORBS).



Sec. 37.131  Who may attend an ORBS?

    Any student is eligible to attend an ORBS.



PART 38_EDUCATION PERSONNEL--Table of Contents




Sec.
38.1 Scope.
38.2 Information collection.
38.3 Definitions.
38.4 Education positions.
38.5 Qualifications for educators.
38.6 Basic compensation for educators and education positions.
38.7 Appointment of educators.
38.8 Nonrenewal of contract.
38.9 Discharge of educators.

[[Page 159]]

38.10 Conditions of employment of educators.
38.11 Length of the regular school term.
38.12 Leave system for education personnel.
38.13 Status quo employees in education positions.
38.14 Voluntary services.
38.15 Southwestern Indian Polytechnic Institute.

    Authority: 25 U.S.C. 2011 and 2015, Secs. 1131 and 1135 of the Act 
of November 1, 1978, 92 Stat. 2322 and 2327; Secs. 511 and 512, Pub. L. 
98-511; Secs. 8 and 9, Pub. L. 99-89; Title V of Pub. L. 100-297; Pub. 
L. 105-337.

    Source: 53 FR 37678, Sept. 27, 1988, unless otherwise noted.



Sec. 38.1  Scope.

    (a) Primary scope. This part applies to all individuals appointed or 
converted to contract education positions as defined in Sec. 38.3 in 
the Bureau of Indian Affairs after November 1, 1979. This part applies 
to elementary and secondary school positions and agency education 
positions.
    (b) Secondary scope. Section 38.13 applies to employees with 
continuing tenure in both the competitive and excepted service who 
encumber education positions.
    (c) Other. Where 25 CFR part 38 and a negotiated labor relations 
agreement conflict, the negotiated agreement will govern.



Sec. 38.2  Information collection.

    (a) The information collection requirements contained in Sec. 38.5 
use Standard Form 171 for collection, and have been approved by OMB 
under 25 U.S.C. 2011 and 2015 and assigned approval number 3206-0012. 
The sponsoring agency for the Standard Form 171, is the Office of 
Personnel Management. The information is being collected to determine 
eligibility for employment. The information will be used to rate the 
qualifications of applicants for employment. Response is mandatory for 
employment.
    (b) The information collection requirement for Sec. 38.14, 
Voluntary Services has been approved by the Office of Management and 
Budget under 44 U.S.C. 3501 et seq. and assigned clearance number 1076-
0116. The information is being collected to determine an applicants 
eligibility and selection for appropriate volunteer assignments. 
Response is voluntary.



Sec. 38.3  Definitions.

    As used in this part, the term:
    Agency means the current organizational unit of the Bureau, which 
provides direct services to the governing body or bodies and members of 
one or more specified Indian Tribes.
    Agency school board as defined in section 1139(1), of Pub. L. 95-
561, means a body, the members of which are appointed by the school 
boards of the schools located within such Agency. The number of such 
members shall be determined by the Director in consultation with the 
affected tribes. In Agencies serving a single school, the school board 
of that school shall function as the Agency School Board.
    Agency Superintendent for Education (ASE) means the Bureau official 
in charge of education functions at an Agency Office and to whom the 
school supervisor(s) and other educators under the Agency's 
jurisdiction, report.
    Area Education Programs Administrator (AEPA) means the Bureau 
official in charge of an Area Education Office that provides services to 
off-reservation residential schools, peripheral dormitories or on-
reservation BIA funded schools that are not served by an Agency 
Superintendent for Education. The AEPA may also provide education 
program services to tribes not having an Agency Superintendent for 
Education at their agency. The AEPA has no line authority over agency 
education programs that are under the jurisdiction of an Agency 
Superintendent for Education.
    Assistant Secretary means the Assistant Secretary for Indian Affairs 
of the Department of the Interior.
    Bureau means the Bureau of Indian Affairs of the Department of the 
Interior.
    Consult, as used in this part and provided in section 1131(d)(1) (B) 
and (C) of Pub. L. 95-561, means providing pertinent information to and 
being available for discussion with the school

[[Page 160]]

board, giving the school board the opportunity to reply and giving due 
consideration to the school board's response, subject to appeal rights 
provided in Sec. 38.7 (a), (b) and (c), and Sec. 38.9(e)(3).
    Director means the Deputy to the Assistant Secretary/Director--
Indian Affairs (Indian Education Programs) in the Bureau.
    Discharge means the separation of an employee during the term of the 
contract.
    Education function means the administration and implementation of 
the Bureau's education programs and activities (including school 
operations).
    Education position, means a position in the Bureau the duties and 
responsibilities of which:
    (a) Are performed on a school term basis principally in a Bureau 
elementary and secondary school which involve:
    (1) Classroom or other instruction or the supervision or direction 
of classroom or other instruction;
    (2) Any activity (other than teaching) that requires academic 
credits in educational theory and practice equal to the academic credits 
in educational theory and practice required for a bachelor's degree in 
education from an accredited institution of higher education; or
    (3) Any activity in or related to the field of education 
notwithstanding that academic credits in educational theory and practice 
are not a formal requirement for the conduct of such activity; or
    (4) Support services at or associated with the site of the school; 
or
    (b) Are performed at the Agency level of the Bureau and involve the 
implementation of education-related Bureau programs. The position of 
Agency Superintendent for Education is excluded.
    Educator, as defined in section 1131(n)(2) of Pub. L. 95-561 means 
an individual whose services are required, or who is employed, in an 
education position as defined in Sec. 38.3.
    Employment contract means a signed agreement executed by and between 
the Bureau and the individual employee hired or converted under this 
part, that specifies the position title, period of employment, and 
compensation attached thereto.
    Involuntary change in position means the release of an employee from 
his/her position instigated by a change in program or other occurrence 
beyond the control of the employee.
    Local school board, as used in this part and defined in section 
1139(7) of Pub. L. 95-561, means a body chosen in accordance with the 
laws of the tribe to be served or, in the absence of such laws, the body 
elected by the parents of the Indian children attending a Bureau-
operated school. In schools serving a substantial number of students 
from different tribes, the members shall be appointed by the governing 
bodies of the tribes affected and the number of such members shall be 
determined by the Director in consultation with the affected tribes.
    Probationary period means the extension of the appointed process 
during which a person's character and ability to satisfactorily meet the 
requirements of the position are reviewed.
    School board means an Agency school board or a local school board.
    School supervisor means the Bureau official in charge of a Bureau 
school who reports to an Agency Superintendent for Education. In the 
case of an off-reservation residential school(s), and, in some cases, 
peripheral dormitories and on-reservation day schools, the school 
supervisor shall report to the Area Education Programs Administrator.
    School term is that term which begins usually in the last summer or 
fall and ends in the Spring. It may be interrupted by one or more 
vacations.



Sec. 38.4  Education positions.

    (a) The Director shall establish the kinds of positions required to 
carry out the Bureau's education function. No position will be 
established or continued for which:
    (1) Funds are not available; or
    (2) There is not a clearly demonstrable need and intent for it to 
carry out an education function.
    (b) Positions established for regular school operations will be 
restricted to school term or program duration. Particular care shall be 
taken to insure

[[Page 161]]

that year-long positions are not established unless they are clearly 
required and involve essential 12-month assignments.



Sec. 38.5  Qualifications for educators.

    (a) Qualifications related to positions. Job qualification 
requirements shall be at least equivalent to those established by the 
appropriate licensing and certification authorities of the State in 
which the position is located.
    (b) Qualifications related to individuals. An applicant for an 
education position must establish that he/she meets the requirements of 
the position by submitting an application and a college transcript, as 
appropriate, to the local school supervisor, Agency Superintendent for 
Education (ASE), Area Education Programs Administrator (AEPA), or 
Director and appearing for an interview if requested by the official 
involved. The applicant's education and experience will be subject to 
verification by the ASE or the AEPA. Employees who falsify experience 
and employment history may be subject to disciplinary action or 
discharge from the position to which he/she is appointed.
    (1) School boards may waive formal education and State certification 
requirements for tribal members who are hired to teach tribal culture 
and language.
    (2) Tribal members appointed under this waiver may not have their 
basic pay rate set higher than the rate paid to qualified educators in 
teaching positions at that school.
    (c) Identification of qualified individuals. The Director shall 
require each ASE, AEPA, and other appropriate local official in the 
education program organization to maintain lists of qualified and 
interviewed applicants for each of the kinds of established positions. 
Applications on file shall be purged annually. Applicants whose 
qualifications are established and who indicate an interest in working 
in specified locations will be included on those local applicant lists. 
The Director shall maintain a national list of qualified applicants for 
each of the kinds of positions established. Applicants whose 
qualifications are established and who either do not indicate an 
interest in a specific location or indicate an interest in working in 
any location will be entered on the national list. The national list is 
a secondary source of applicants.
    (d) Special recruitment and training for Indian educators. The 
Director shall review annually the Bureau's ``Recruitment of Indian 
Educators Program'' and update as necessary. The Director will define 
individual training plans for trainees and subsequent promotional 
opportunities for advancement based upon satisfactory job performance in 
this program.



Sec. 38.6  Basic compensation for educators and education positions.

    (a) Schedule of basic compensation rates. The Director shall 
establish a schedule for each pay level specified in part 62 of the 
Bureau of Indian Affairs Manual (BIAM). The schedule will be revised at 
the same time as and be consistent with rates in effect under the 
General Schedule or Federal Wage System for individuals with comparable 
qualifications, and holding comparable positions.
    (b) Range of pay rates for positions within pay levels. The range of 
basic compensation rates for positions assigned to each pay level will 
be consistent with the General Schedule or Federal Wage System rates 
that would otherwise be applicable if the position were classified under 
chapter 51 or subchapter IV of chapter 53 of title 5 of the United 
States Code (U.S.C.). The maximum pay shall not exceed step 10 of the 
comparable General Schedule position by more than ten percent.
    (c) Schedule of compensation rates for teachers and counselors. The 
basic compensation for teachers and counselors, including dormitory 
counselors and homeliving counselors, shall be determined in accordance 
with rates set by the Defense Department Overseas Teachers Pay and 
Personnel Practices Act. The schedule used shall be the current 
published schedule for the school year beginning on or after July 1 of 
each year.
    (d) Adjusting employee basic compensation rates. (1) Except for 
employees occupying positions of teachers and counselors, including 
dormitory counselors

[[Page 162]]

and homeliving counselors, adjustments in an employee's basic 
compensation made in connection with each contract renewal will be based 
on the following:
    (i) Contract renewal incentive--one pay increment for each renewal, 
not to exceed four increments, unless the educator is covered by a 
negotiated labor union agreement.
    (ii) Performance--employees whose performance is rated ``above 
satisfactory''; one pay increment; employees whose performance is rated 
``outstanding''; two pay increments.
    (2) Pay increments based on education may be awarded as outlined in 
62 BIAM.
    (e) Special additions to basic compensation. The Director is 
authorized to established the following special additions to rates of 
basic compensation:
    (1) The Director may authorize payment of a staffing differential 
not exceeding 25 per centum of the rate of basic compensation based on a 
formally-documented request by an ASE or AEPA. Such a staffing 
differential shall only be authorized in writing when the Director 
determines that:
    (i) It is warranted by the geographic isolation of the work site or 
other unusually difficult environmental working or living conditions 
and/or,
    (ii) It is necessary as a recruitment or retention incentive. This 
staffing differential is to be computed on the basic schedule rate 
before any other additions are computed.
    (2) Special rates may be established for recruitment and retention 
applicable only to a specific position or to specific types of positions 
in specific locations based on a formally documented request by an ASE 
or AEPA and submitted to the Director for approval.
    (f) Payment of compensation to educators. This section applies to 
those individuals employed under the provisions of section 1131(m) of 
Pub. L. 95-561 or title 5 U.S.C.
    (1) Pay periods. Educators shall be paid on the basis of a biweekly 
pay period during the term of the contract. Chapter 55 of title 5 U.S.C. 
applies to the administration of pay for educators, except that section 
1131(m) of Pub. L. 95-561 provides that 5 U.S.C. 5533 does not apply 
with respect to the receipt of pay by educators during summer recess 
under certain circumstances.
    (2) Pay for contract educators. When an educator is appointed, 
payment under the contract is to begin as of the effective date of the 
contract. If an educator resigns or is discharged before the expiration 
of the term of the contract, pay ceases as of the date of resignation or 
discharge.
    (3) Prorating of pay. Within 30 days prior to the beginning of the 
academic school term, each educator must elect whether to have the 
annual contractual rate or basic pay prorated over the contractual 
academic school term, or to have the basic pay prorated over a 12-month 
period.
    (i) Each educator may change such election once during the academic 
school term, provided notice is given two weeks prior to the end of the 
fifth month after the beginning of the academic school term.
    (ii) An educator who elects a 12-month basis of prorated pay may 
further elect to be paid in one lump sum at the end of the academic 
school term for the then remaining amount of rate of basic pay otherwise 
due, provided notice is given four weeks prior to the end of the 
academic school term.
    (iii) No educator shall suffer a loss of pay or benefits because of 
elections made under this section.
    (4) Stipends for extracurricular activities. An employee, if 
assigned to sponsor an approved extracurricular activity, may elect 
annually at the beginning of the contract to be paid a stipend in lieu 
of overtime premium pay or compensatory time when the employee performs 
additional activities to provide services to students or otherwise 
support the school's academic and social programs.
    (i) The Director is authorized to establish a schedule of stipends 
for each Bureau Area, taking into consideration types of activities to 
be compensated and payments provided by public school districts in or 
near the Area.
    (ii) The stipend shall be a supplement to the employee's base pay 
and is not a part of salary for retirement computation purposes.

[[Page 163]]

    (iii) The employee shall be paid the stipend in equal payments over 
the period of the extracurricular activity.

[53 FR 37678, Sept. 27, 1988, as amended at 54 FR 46374, Nov. 3, 1989]



Sec. 38.7  Appointment of educators.

    (a) Local school employees. Local Bureau school employees shall be 
appointed only by the school supervisor. Before the local school 
employee is employed, the school board shall be consulted. An 
individual's appointment may be finalized only upon receipt of a formal 
written determination certified by the local school board under such 
uniform procedures as it may adopt. Written determination by the school 
board should be received within a reasonable period, but not to exceed 
30 days. Failure of the school board to act within this period shall 
have the effect of approving the proposed appointment. The local school 
board shall use the same written procedure to disapprove an appointment. 
The school supervisor may appeal to the ASE, or, where appropriate, to 
the AEPA, any determination by the local school board concerning an 
individual's appointment. A written statement of appeal describing the 
action and the reasons the supervisor believes such action should be 
overturned must be filed within 10 days of receipt of the action from 
the local school board. A copy of such statement shall be submitted to 
the school board and the board shall be afforded an opportunity to 
respond, not to exceed 10 calendar days, in writing, to the appeal. 
After reviewing such written appeal and response, the ASE or AEPA may, 
for cause, overturn the action of the local school board. The ASE or 
AEPA must transmit the determination of the appeal (in the form of a 
written opinion) to the board and to the supervisor identifying the 
reasons for overturning the action within 10 calender days. Failure to 
act within the 10 calendar day period shall have the effect of approving 
the local school board's determination.
    (b) School supervisors. School supervisors may be appointed only by 
the ASE, except the AEPA shall appoint school supervisors for off-
reservation boarding schools and those few other schools supervised by 
the AEPA. The school board shall be consulted before the school 
supervisor is employed. The appointment may be finalized upon receipt of 
a formal written determination certified by the school board under any 
uniform procedures as it may adopt. Written determination by the school 
board shall be received within a reasonable period, but not to exceed 30 
days. Failure of the school board to act within this period shall have 
the effect of approving the proposed appointment. The school board shall 
use the same procedure to disapprove an appontment. Within 20 calendar 
days of receipt of any determination by the school board concerning an 
individual's appointment, the ASE or AEPA, as appropriate, may appeal to 
the Director by filing a written statement describing the determination 
and the reasons the supervisor believes the determination should be 
overturned. A copy of the statement shall be submitted to the local 
school board and the board shall be afforded an opportunity to respond, 
within 10 calendar days, in writing, to such an appeal. The Director may 
reverse the determination for cause set out in writing to the school 
board. Within 20 calendar days of the school board's response, the 
Director shall transmit the determination of the appeal (in the form of 
a written opinion) to the board and to the ASE or AEPA identifying the 
reasons for overturning the determination. Failure by the Director to 
act within the 20 calendar day period shall have the effect of approving 
the school board's determination.
    (c) Agency office education program employees. Appointments to 
Agency office education positions may be made only by the ASE. The 
Agency school board shall be consulted before the agency education 
employee is employed, and the appointment may be finalized upon receipt 
of a formal, written determination certified by the Agency school board 
under any uniform procedures as it may adopt. Written determination by 
the school board shall be received within a reasonable period, but not 
to exceed 30 days. Failure of the school board to act within this period 
shall have the effect of approving the proposed appointment. The Agency 
school

[[Page 164]]

board shall use the same written procedure to disapprove an appointment. 
Within 20 calendar days of receipt of any determination by the school 
board concerning an individual's appointment, the ASE may appeal to the 
Director by filing a written statement describing the determination and 
the reasons the supervisor believes the determination should be 
overturned. A copy of the statement shall be submitted to the Agency 
school board and the board shall be afforded an opportunity to respond, 
within 10 calendar days, in writing, to such appeal. After reviewing the 
written appeal and response, the Director may, for cause, overturn the 
determination of the Agency school board. Within 20 days of the board's 
response, the Director shall transmit the determination of the appeal 
(in the form of a written opinion) to the board and to the ASE 
identifying the reasons for overturning the determination. Failure of 
the Director to act within the 20 calendar day period shall have the 
effect of approving the school's board's determination.
    (d) Employment contracts. The Bureau shall issue employment 
contracts each year for individuals employed in contract education 
positions at the Agency or school levels.
    (e) Absence of local school boards. Where a local school board has 
not been established in accordance with section 1139(7) Pub. L. 95-561 
with respect to a Bureau school, or where a school board is not 
operational, and the local school board is required to be given a notice 
or required to be consulted by statute or these regulations, the 
official involved shall notify or consult with the Agency school board 
serving the tribe(s) to which the parents of the Indian children 
atending that school belong, or, in that absence, the tribal 
organization(s) of the tribe(s) involved.
    (f) Provisional contracts. Provisional certification or other 
limited certificates from the State are not considered full 
certification and only a provisional contract may be issued. There may 
be circumstances when no individual who has met the full certification 
or experience requirements is available for a professional position or 
when a status quo employee who does not meet full certification or 
experience requirements desires to convert to contract. When this 
situation exists, a provisional contract may be issued in accordance 
with the following:
    (1) The contract will be made only:
    (i) After it is determined that an individual already meeting 
certification or experience requirements is not available; or
    (ii) For conversion of a status quo employee who does not yet meet 
all established position requirements.
    (2) Consultation with the appropriate school board is required prior 
to the contract.
    (3) The contract may be of 12-month or school-term duration.
    (4) The employee will be required to make satisfactory progress 
toward meeting full qualification requirements.
    (5) If the employee fails to meet the requirements established under 
Sec. 38.7(f)(4), the contract will be terminated. Such termination 
cannot be grieved or appealed.
    (g) Conditional appointment. As provided in section 1131(d)(4), Pub. 
L. 95-561, if an individual who has applied at both the national and 
local levels is appointed from a local list of applicants, the 
appointment shall be conditional for 90 days. During that period, the 
individual's application and background shall be examined to determine 
if there is a more qualified individual for the position. Removal during 
this period is not subject to discharge, hearing or grievance 
procedures.
    (h) Short-term contracts. (1) There may be circumstances where 
immediate action is necessary and it is impossible to consult with the 
local school board. When this situation exists short-term contracts may 
be made by the school supervisor in accordance with the following:
    (i) The length of the contract will not exceed 60 days, or the next 
regularly scheduled school board meeting, whichever comes first.
    (ii) If the board meets and does not take action on the individual 
in question, the short-term contract may be extended for the duration of 
the school year.
    (iii) It shall be the responsibility of the school supervisor to 
fully inform

[[Page 165]]

the local school board of all such short-term contracts. Failure to do 
so may be cited as reason to discharge the school supervisor if so 
requested by the board.
    (2) The local school board may authorize the school supervisor to 
make an emergency short-term contract to classroom, dormitory and other 
positions directly related to the health and safety of students. When 
this situation exists, short-term contracts may be made in accordance 
with the following:
    (i) If local and agency lists of qualified applicants are exhausted, 
short-term contracts may be made without regard to qualifications for 
the position;
    (ii) The pay level will be based on the qualifications of the 
individual employed rather than the requirements of the position, if the 
qualifications of the individual are lower than required;
    (iii) The short-term contract may not exceed the school term and may 
not be renewed or extended;
    (iv) Every 60 days the school supervisor will determine if qualified 
individuals have been placed on the local or agency lists. If a 
qualified individual on the list accepts employment, the school 
supervisor must terminate the emergency appointment at the time the 
qualified individual is appointed.
    (i) Temporary contracts. There may be circumstances where a specific 
position is needed for a period of one year or less. Under these 
conditions a position may be advertised as a temporary position and be 
filled under a temporary contract. Such contract requires the same 
school board approval as a school year contract. If required for the 
completion of the activities specified in the original announcement, the 
position, may with school board approval be extended for up to one 
additional year. Temporary contracts may be terminated at any time and 
this action is not subject to approval or grievance procedures.
    (j) Waiver of Indian preference. Notwithstanding any provision of 
the Indian preference laws, such laws shall not apply in the case of any 
personnel action within the purview of this section respecting an 
application or employee not entitled to Indian preference if each tribal 
organization concerned grants, in writing, a waiver of the application 
of such laws with respect to such personnel action, where such a waiver 
is in writing deemed to be a necessity by the tribal organization, 
except that this shall in no way relieve the Bureau of its 
responsibility to issue timely and adequate announcements and 
advertisements concerning any such personnel action if it is intended to 
fill a vacancy (no matter how such vacancy is created). When a waiver is 
granted, it shall apply only to that particular position and as long as 
the employee remains in that position.
    (k) Prohibited reappointment. An educator who voluntarily terminates 
employment before the end of the school term may not be appointed to 
another Bureau education position before the beginning of the following 
school term. An educator will not be deemed to have voluntarily 
terminated employment if transferred elsewhere with the consent of the 
local school or Agency boards.
    (l) Contract renewals. The appropriate school board shall be 
notified in writing by the school supervisor and/or ASE or AEPA not less 
than 90 days before the end of the school term whether or not an 
individual's contract is recommended for renewal.
    (1) If the school board disagrees with the school supervisor's or 
ASE's or AEPA's recommendations, the board will submit a formal, written 
certification of its determinations to the school supervisor or ASE or 
AEPA within 25 days. If the board's determinations are not received 
within the 25 days, the school supervisor or ASE or AEPA shall issue the 
60 day notification of renewal or nonrenawal to the individual as 
required under Sec. 38.8.
    (2) When the school board submits its determination within the 25 
days and determines that a contract will be renewed, or nonrenewed, the 
appropriate official shall issue the required renewal notice, or 
nonrenawal, or appeal the determination of the school board to the 
appropriate official who will make a determination in accordance with 
the appeal procedure is Sec. 38.7(a) of this part. After the 
probationary period, if the determination is that the contract will not 
be renewed, the procedures specified in Sec. 38.8 shall apply.

[[Page 166]]



Sec. 38.8  Nonrenewal of contract.

    Where the determination is made that an employee's contract shall 
not be renewed for the following year, the following procedure will 
apply to those employees who have completed three full continuous school 
terms of service under consecutive contract appointments and 
satisfactory performance in the same or comparable education positions.
    (a) The employee will be given a written notice of the action and 
the reasons thereof not less than 60 days before the end of the school 
term.
    (b) The employee will be given 10 calendar days to request an 
informal hearing before the appropriate official or body. Upon request, 
the employee may be given official time, not to exceed eight hours, to 
prepare a written response to the reason(s).
    (c) If so requested, an informal hearing shall be held within 30 
calendar days of receipt of the request.
    (d) The appropriate official or body will render a written 
determination within seven calendar days after the informal hearing.
    (e) The employee has a right to request an administrative review by 
the ASE or AEPA of the determination within 10 calendar days of that 
determination. The ASE or AEPA then has 20 calendar days to render a 
final decision. Where the employee is the supervisor of the school or an 
agency education employee, any appeal of the ASE or AEPA would be 
addressed to the Director for a decision. If the Director or ASE's or 
AEPA's decision overturns the appropriate official or bodies 
determination, the appropriate official or body will be notified of the 
reasons in writing. Failure by the Director or ASE or AEPA to act within 
the 20 days will sustain the determination. This completes the 
administrative appeal process.
    (f) Failure of any of the parties to meet the requirements of the 
above procedures will serve to negate the particular action sought by 
the negligent party.
    (g) Those employees with less than three full continuous school 
terms of consecutive contract appointments are serving a probationary 
period. Nonrenewal of his/her contract will be considered a continuation 
of the examining process. This action cannot be appealed or grieved.
    (h) Independent of the procedures outlined in this section, the 
school supervisor or ASE or AEPA, for applicable positions, shall be 
required to submit to the ASE or AEPA or appropriate higher authority 
all nonrenewal actions. Within 60 days, the ASE or AEPA shall review the 
nonrenewal actions and may overturn the determination of nonrenewal. In 
the event that the ASE or AEPA makes a decision to overturn the school 
board determination, the ASE or AEPA shall notify the school board in 
writing of his/her reasons for doing so.
    (i) No more than the substantial standard of evidence shall be 
required to sustain the nonrenewal.
    (j) A procedural error shall not be grounds for overturning a 
determination of nonrenewal unless the employee shows harmful error in 
the application of the Agency's procedures in arriving at such a 
decision. For purposes of this section, ``harmful error'' means error by 
the Agency in the application of its procedures which, in the absence or 
cure of the error, might have caused the Agency to reach a conclusion 
different than the one reached. The burden is upon the appellant to show 
that based upon the record as a whole, the error was harmful. i.e., 
caused substantial harm or prejudice to his/her rights.
    (k) Nonrenewal of a contract is not discharge and will not follow 
the discharge procedures.



Sec. 38.9  Discharge of educators.

    (a) Discharge for cause. Educators covered under the provision of 
this section are excluded from coverage under 5 U.S.C. 7511 and 4303. In 
order to provide due process for educators, the Director shall publish 
in 62 BIAM representative conditions that could result in the discharge 
of educators for cause and procedures to be followed in discharge cases.
    (b) Discharge for inadequate performance. Action to remove educators 
for inadequate performance will be taken for failure to meet performance 
standards established under 5 U.S.C. 4302. Performance standards for all 
educators will include, among others, lack

[[Page 167]]

of student achievement. Willful failure to exercise properly assigned 
supervisory responsibilities by supervisors shall also be cause for 
discharge.
    (c) Other discharge. The Director shall publish in 62 BIAM a 
description of the budgetary and programmatic conditions that may result 
in the discharge of educators for other than cause during the school 
term. The individual's personnel record will clearly reflect that the 
action taken is based upon budgetary or programmatic restraints and is 
not a reflection on the employee's performance.
    (d) Procedures for discharge for cause. The Director shall publish 
in 62 BIAM the procedural steps to be followed by school supervisors, 
ASE's, and AEPA's in discharge for cause cases. These procedures shall 
provide (among other things) for the following:
    (1) The educator to be discharged shall receive a written notice of 
the proposal, specifying the causes or complaints upon which the 
proposal is based, not less than 30 calendar days before the discharge. 
However, this shall not prohibit the exclusion of the individual from 
the education facility in cases where exclusion is required for the 
safety of the students or the orderly operation of the facility.
    (2) A reasonable time, but not less than 10 calendar days, will be 
allotted for the individual to make written and/or oral responses to the 
charge.
    (3) An opportunity will be afforded the individual to review the 
material relied upon to support the charge.
    (4) Official time, not to exceed eight hours, will be provided to 
the individual to prepare a response to the charge.
    (5) The educator may elect to have a representative and shall 
furnish the identity of any representative to the ASE or AEPA. The ASE 
or AEPA may disallow, as an employee representative, any individual 
whose activities as a representative would cause a conflict of interest 
or position, or an employee whose release from his or her official 
position would give rise to unreasonable costs to the Government, or 
when priority work assignment precludes his or her release from official 
duties. The terms of any applicable collective bargaining agreement and 
5 U.S.C. 7114(a)(5) shall govern representation of employees in an 
exclusive bargaining unit.
    (6) The individual has a right to a final decision made by the 
appropriate level of supervision.
    (7) The individual has a right to appeal the final decision and have 
the merits of the case reviewed by a Departmental official not 
previously involved in the case. This right includes entitlement to a 
hearing upon request under procedures in accordance with the 
requirements of due process under section 1131(e)(1)(B) of Pub. L. 95-
561.
    (e) School board action. (1) The appropriate school board shall be 
notified as soon as possible, but in no case later than 10 calendar days 
from the date of issue of the notice of intent to discharge.
    (2) The appropriate school board, under any uniform procedure as it 
may adopt, may issue a formal written certification to the school 
supervisor, ASE, or AEPA either approving or disapproving the discharge 
before the expiration of the notice period and before actual discharge. 
Failure to respond before the expiration of the notice period will have 
the effect of approving the discharge.
    (3) The school supervisor initiating a discharge action may appeal 
the board's determination to the ASE or AEPA within 10 calendar days of 
receipt of the board's notice. The ASE or AEPA initiating a discharge 
may appeal the board's determination to the Director within 10 calendar 
days of receipt of the board's notice. Within 20 calendar days following 
the receipt of an appeal, the reviewing official may, for good cause, 
reverse the school board's determination by a notice in writing to the 
board. Failure to act within 20 calendar days shall have the effect of 
approving the board's determination.
    (f) School board recommendations for discharge. School boards may 
recommend in writing to school supervisors, ASE's, or AEPA's, and the 
Director that individuals in the education program be discharged. These 
written recommendations may follow any procedures formally established 
internally by the school board or tribal

[[Page 168]]

government. However, the written recommendations must contain specific 
causes or complaints that may be verified or established by 
investigation of factual situations. The official receiving a board 
recommendation for discharge of an individual shall acknowledge the 
recommendation in writing within 10 calendar days of receipt and proceed 
with a fact finding investigation. The official who finally disposes of 
the recommendation shall notify the school board of the disposition in 
writing within 60 calendar days of initiation of the fact finding 
investigation.



Sec. 38.10  Conditions of employment of educators.

    (a) Supervision not delegated to school boards. School boards may 
not direct, control, or interrupt the day-to-day activities of BIA 
employees carrying out Bureau-operated education programs.
    (b) Employee handbook. Employee handbook and recruiting guides shall 
be developed by each local school or agency to provide specific 
information regarding:
    (1) The working and hiring conditions for various tribal 
jurisdictions and Bureau locations;
    (2) The need for all education personnel to adapt to local 
situations; and
    (3) The requirement of all education personnel to comply with and 
support duly adopted school board policies, including those relating to 
tribal culture or language.
    (c) Contract renewal notification. Employees will be notified 60 
calendar days before the end of the school term of the intent to renew 
or not renew their contract. If an individual's contract is to be 
renewed, the individual must agree in writing to serve for the next 
school term. This agreement must be received within 14 calendar days of 
the date of the notice in order to complete the contract renewal. If 
this agreement is not received by the fourteenth day, the employee has 
voluntarily forfeited his or her right to continuing employment. If an 
individual agrees to serve for the next school term and fails to report 
for duty at the beginning of the next school term, the contract will be 
terminated and the individual's future appointment will be subject to 
the restriction in Sec. 38.7(k) of this part.
    (d) Dual compensation. An employee accepting a renewal of a school 
term contract may be appointed to another Federal position during the 
school recess period without regard to the dual compensation regulations 
in 5 U.S.C. 5533.
    (e) Discrimination complaints. Equal Employment Opportunity (EEO) 
procedures established under 29 CFR part 1613 are applicable to contract 
employees under this part. It is the policy of the BIA that all 
employees and applicants for employment shall be treated equally when 
considered for employment or benefits of employment, regardless of race, 
color, sex, religion, national origin, age, or mental or physical health 
(handicap), within the parameters of Indian preference.
    (f) Grievance procedures. The Director shall publish in 62 BIAM 
procedures for the rapid and equitable resolution of grievances. In 
locations and for positions covered by an exclusive bargaining 
agreement, the negotiated grievance procedure is the exclusive avenue of 
redress for all matters within the scope of the negotiated grievance 
procedure.
    (g) Performance evaluation. The minimum number of times a supervisor 
shall meet with an employee to discuss performance and suggest 
improvements shall be once every three months for the educator's first 
year at a school or Agency, and twice annually thereafter during the 
school term.



Sec. 38.11  Length of the regular school term.

    The length of the regular school term shall be at least 180 student 
instructional days, unless a waiver has been granted under the 
provisions of 25 CFR 36.61.



Sec. 38.12  Leave system for education personnel.

    (a) Full-time school-term employees. Employees on a full-time 
school-term contract are authorized the following types of leave:
    (1) Personal leave. A school-term employee will receive 28 hours of 
personal leave to be used for personal reasons and 12 hours of emergency 
leave. This

[[Page 169]]

leave only accrues provided the length of the contract exceeds 24 weeks.
    (i) The school-term employee will request the use of this leave in 
advance when it is for personal use or personal business (e.g., going to 
the bank, etc.). When this leave is requested for emergency purposes 
(e.g., death in immediate family), it will be requested immediately 
after the emergency is known, if possible, by the employee and before 
leave is taken or as soon as the supervisor reports to work on the 
official work day.
    (ii) Final approval rests with the supervisor. This leave shall be 
taken only during the school term. No compensation for or carryover of 
unused leave is authorized.
    (2) Sick leave. Sick leave is an absence approved by the supervisor 
for incapacity from duty due to injury or illness, not related to or 
incurred on-the-job and not covered by the Federal Employee's 
Compensation Act Regulations. Medical and dental appointments may be 
included under this part. However, whenever possible, medical and dental 
appointments should be scheduled after instructional time.
    (i) Sick leave shall accrue at the rate of four hours each biweekly 
pay period in pay status during the term of the contract; and no 
precredit or advance of sick leave is authorized.
    (ii) Accumulated sick leave at the time of separation will be 
recredited to an educator who is reemployed within three years of 
separation.
    (3) School vacation. School term employees may receive up to 136 
hours of school vacation time for use when school is not in session. 
School vacations are scheduled on the annual school calendar during the 
instructional year and may not be scheduled before the first day of 
student instruction or after the last day of student instruction. School 
vacations are not a right of the employee and cannot be paid for or 
carried over if the employee is required to work during the school 
vacation time or if the program will not permit school term employees to 
take such vacation time.
    (b) Leave for full-time, year-long employees. Employees who are on a 
full-time, year-long contract are authorized the following types of 
leave:
    (1) Vacation leave. Absence approved in advance by the supervisor 
for rest and relaxation or other personal reasons is authorized on a per 
year basis of Federal Government service as follows: years 1 and 2 of 
employment--120 hours; years 3-5 of employment--160 hours; 6 or more 
years--200 hours. The supervisor will determine when vacation leave may 
be used. Vacation leave is to be scheduled and used to the greatest 
extent possible during periods when school is not in session and the 
students are not in the dormitories. Vacation leave is credited to an 
employee on the day following his or her date of employment, provided 
the length of the contract exceeds 24 weeks. An employee may carry into 
succeeding years up to 200 hours of vacation leave. Leave unused at the 
time of separation is forfeited.
    (2) Sick leave. Sick leave accumulation and use is authorized on the 
same basis as for school term employees under Sec. 38.12(a)(2) of this 
part.
    (c) Leave for part-time year-long employees. Employees who are on 
part-time year-long contracts exceeding 20 hours per week are authorized 
the following types of leave:
    (1) Vacation leave. Absence approved in advance by the supervisor 
for rest and relaxation or other personal reasons is authorized on a per 
year basis of Federal Government service as follows: years 1 and 2 of 
employment--64 hours; years 3-5 of employment--80 hours; 6 or more 
years--104 hours. The supervisor shall determine when vacation leave may 
be used. Vacation leave is to be scheduled and used to the greatest 
extent possible during periods when school is not in session and the 
students are not in the dormitories. Vacation leave is credited to an 
employee on the day following his or her date of employment provided the 
length of the contract exceeds 24 weeks and may not be accumulated in 
excess of 104 hours from year to year. An employee may carry over up to 
104 hours from one contract year to the next. Leave unused at the time 
of separation is forfeited.
    (2) Sick leave. Sick leave is accumulated on the basis of three 
hours each biweekly pay period in pay status; no precredit or advance of 
sick leave is

[[Page 170]]

authorized. Accumulated sick leave at the time of separation will be 
recredited to an educator who is reemployed within three years of 
separation.
    (d) Leave for school term employees on a part-time work schedule in 
excess of 20 hours per week. (1) Employees on a part-time work schedule 
in excess of 20 hours per week may receive a maximum of 102 hours of 
school vacation time; 20 hours of personal/emergency leave; and 63 hours 
of sick leave accrued at three hours per pay period for the first 21 pay 
periods of their contracts. Personal/emergency leave only accrues 
provided the length of the contract exceeds 24 weeks.
    (2) The part-time employee will request the use of this leave in 
writing in advance when it is for personal use or personal business 
(e.g., going to the bank, etc.). When this leave is requested for 
emergency purposes (e.g., death in immediate family), it will be 
requested immediately after the emergency is known, if possible, by the 
employee and before leave is taken or as soon as the supervisor reports 
to work on the official work day.
    (3) Final approval rests with the supervisor. This leave shall be 
taken only during the school year. No compensation for or carryover of 
unused leave is authorized.
    (4) Sick leave. Sick leave is an absence approved by the supervisor 
for incapacity from duty due to injury or illness, not related to or 
incurred on-the-job and not covered by the Federal Employee's 
Compensation Act Regulations. Medical and dental appointments may be 
included under this part. However, whenever possible, medical and dental 
appointments should be scheduled after instructional time.
    (i) Sick leave shall accrue at the rate of three hours each biweekly 
pay period in pay status for the first 21 pay periods of their contract; 
no precredit or advance for sick leave is authorized.
    (ii) Accumulated sick leave at the time of separation will be 
recredited to an educator who is reemployed within three years of 
separation.
    (5) School vacation time. Part-time employees may receive up to 102 
hours of school vacation time for use when school is not in session. 
Approval for the use of this time will be administratively determined by 
the school supervisor, ASE or AEPA, and this time may not be scheduled 
before the start of school or after the end of school.
    (i) All school vacation time for part-time employees will be 
approved at the convenience of the program and not as a right of the 
employee.
    (ii) Vacation time cannot be paid for or carried over for a part-
time employee if the employee is required to work during the school 
vacation time or if the program will not permit part-time employees to 
take such vacation time.
    (e) Accountable absences for all contract employees. The following 
are considered accountable absences:
    (1) Approved absence. If prescheduled and approved by the school 
supervisor, ASE or AEPA, as appropriate, an employee may be on leave 
without pay.
    (2) Absence without leave. Any absence is not prescheduled or 
approved in advance or excused by the supervisor is considered absence 
without leave.
    (3) Court and military leave. Employees are entitled to paid absence 
for jury or witness service and military duty as a member of the 
National Guard or Reserve under the same terms or conditions as outlined 
in sections 6322 and 6323 of title 5 U.S.C., and corresponding 
provisions of the Federal Personnel Manual, when the absence occurs 
during the regular contract period. Employees may be requested to 
schedule their military leave at times other than when school is in 
session.
    (4) Administrative leave. Administrative leave is an excused absence 
from duty administratively authorized without loss of pay or without 
charge to leave. This leave is not a substitute for other paid or unpaid 
leave categories. Administrative leave usually is authorized on an 
individual basis except when a school is closed or a group of employees 
are excused from work for a particular purpose. The school supervisor, 
ASE or AEPA will grant administrative leave. A school closing must be 
approved by the ASE or AEPA.
    (f) Educators serving with contracts with work weeks of 20 hours a 
week or less are not eligible for any type of paid leave.

[[Page 171]]

    (g) For school term educators, no paid leave is earned nor may 
accumulated leave be used during any period of employment with the 
Bureau between school terms.
    (h) Employees issued contracts for intermittent work are not 
eligible for any type of paid leave.
    (i) Leave transferred in. Annual leave credited to an employee's 
accrued leave balance immediately before conversion to a contract 
education position or appointment under this part will be carried over 
and made available to the employee. Sick leave credited to an employee's 
accrued sick leave balance immediately before conversion to a contract 
education position or appointment under this part shall be credited to 
the employee's sick leave account under the system in Sec. 38.12(a)(2) 
and (b)(2).



Sec. 38.13  Status quo employees in education positions.

    (a) Status quo employees. Individuals who were Bureau employees on 
October 31, 1979, with an appointment in either the competitive or 
excepted service without time limitation, and who are serving in an 
education position, shall be continued in their positions under the 
terms and conditions of that appointment with no change in their status 
or positions. Such employees are entitled to receive any changes in 
compensation attached to the position. Although such employees occupy 
``education positions'' as defined in this part, the terms and 
conditions of their appointment, status, and entitlements are determined 
by competitive service regulations and procedures. Under applicable 
procedures, these employees are eligible for consideration for movement 
to other positions that are defined as ``contract education'' positions. 
Such movement shall change the terms and conditions of their appointment 
to the terms and conditions of employment established under this part.
    (b) If the tribe or school board waives the Indian preference law, 
the employee loses the early-out retirement eligibility under Pub. L. 
96-135, ``early-out for non-Indians,'' if they are entitled to the 
early-out retirement. A memorandum for the record on BIA letterhead 
shall be signed by the employee and placed on the permanent side of his/
her Official Personnel Folder, along with the tribal resolution, if the 
tribe/school board has waived the Indian preference law to employ the 
non-Indian.''
    (c) Conversion of status quo employees to contract positions. Status 
quo employees may request in writing to the school supervisor, ASE or 
AEPA, as applicable, that their position be converted to contract. The 
appropriate school board will be consulted and a determination made by 
such school board whether such individual should be converted to a 
contract employee.
    (1) Written determination by the school board should be received 
within a reasonable period, but not to exceed 30 days from receipt of 
the request. Failure of the school board to act within this period shall 
have the effect of disapproving the proposed conversion.
    (2) With school board approval, an involuntary change in position 
shall not affect the current status of status quo education employees.



Sec. 38.14  Voluntary services.

    (a) Scope. An ASE or AEPA may, subject to the approval of the local 
school board concerned, accept voluntary services on behalf of Bureau 
schools from the private sector, including individuals, groups, or 
students. Voluntary service shall be for all non-hazardous activities 
where public services, special projects, or school operations are 
improved and enhanced. Volunteer service is limited to personal services 
received without compensation (salary or wages) by the Bureau from 
individuals, groups, and students. Nothing in this section shall be 
construed to require Federal employees to work without compensation or 
to allow the use of volunteer services to displace or replace Federal 
employees.
    (b) Volunteer service agreement. An agreement is a written document, 
jointly completed by the volunteer, the Bureau school supervisor, and 
the school board, that outlines the responsibilities of each. In the 
case of students receiving credit for their work (i.e., student 
teaching) from an education institution, the agreement will be jointly 
completed by the student, a

[[Page 172]]

representative of the institution, and the Bureau school supervisor. In 
the case of volunteer groups, the agreement shall be signed by an 
official of the volunteering organization, the Bureau school supervisor, 
and the school board and a list of signatures and emergency telephone 
numbers of all participants shall be attached.
    (c) Eligibility. Although no minimum age requirement exists for 
volunteers, schools shall comply with appropriate Federal and State laws 
and standards on using the services of minors. All volunteers under the 
age of 18 must obtain written permission from their parents or guardians 
to perform volunteer activities.
    (d) Status. Volunteers participating under this part are not 
considered Federal employees for any purpose other than:
    (1) Title 5 U.S.C. chapter 81, dealing with compensation for 
injuries sustained during the performance of work assignments.
    (2) Federal tort claims provisions published in 28 U.S.C. chapter 
171.
    (3) Department of the Interior Regulations Governing 
Responsibilities and Conduct.
    (e) Travel and other expenses. The decision to reimburse travel and 
other incidental expenses, as well as the amount of reimbursement, shall 
be made by the school supervisor, ASE, AEPA, and the respective school 
board. Payment is made in the same manner as for regular employees. 
Payment of travel and per diem expenses to a volunteer on a particular 
assignment must be supported by a specific travel authorization and 
cannot exceed the cost of employing a temporary employee of comparable 
qualification at the school for which a travel authorization is 
considered.
    (f) Annual report. School supervisors shall submit reports on 
volunteers to the ASE or AEPA by October 31 of each year for the 
preceding year.



Sec. 38.15  Southwestern Indian Polytechnic Institute.

    (a) The Southwestern Indian Polytechnic Institute has an independent 
personnel system established under Public Law 105-337, the 
Administrative Systems Act of 1998, 112 Stat. 3171. The details of this 
system are in the Indian Affairs Manual (IAM) at Part 20. This manual 
system may be found in Bureau of Indian Affairs Regional and Agency 
Offices, Education Line Offices, and the Central Office in Washington, 
DC.
    (b) The personnel system is in the excepted service and addresses 
the areas of classification, staffing, pay, performance, discipline, and 
separation. Other areas of personnel such as leave, retirement, life 
insurance, health benefits, thrift savings, etc., remain under the 
jurisdiction of the Office of Personnel Management.

[65 FR 58183, Sept. 27, 2000]



PART 39_THE INDIAN SCHOOL EQUALIZATION PROGRAM--Table of Contents




                            Subpart A_General

Sec.
39.1 What is the purpose of this part?
39.2 What definitions apply to terms in this part?
39.3 Information collection.

              Subpart B_Indian School Equalization Formula

39.100 What is the Indian School Equalization Formula?
39.101 Does ISEF assess the actual cost of school operations?

                      Base and Supplemental Funding

39.102 What is academic base funding?
39.103 What are the factors used to determine base funding?
39.104 How must a school's base funding provide for students with 
          disabilities?
39.105 Are additional funds available for special education?
39.106 Who is eligible for special education funding?
39.107 Are schools allotted supplemental funds for special student and/
          or school costs?

                      Gifted and Talented Programs

39.110 Can ISEF funds be distributed for the use of gifted and talented 
          students?
39.111 What does the term gifted and talented mean?
39.112 What is the limit on the number of students who are gifted and 
          talented?
39.113 What are the special accountability requirements for the gifted 
          and talented program?
39.114 What characteristics may qualify a student as gifted and talented 
          for purposes of supplemental funding?

[[Page 173]]

39.115 How are eligible gifted and talented students identified and 
          nominated?
39.116 How does a school determine who receives gifted and talented 
          services?
39.117 How does a school provide gifted and talented services for a 
          student?
39.118 How does a student receive gifted and talented services in 
          subsequent years?
39.119 When must a student leave a gifted and talented program?
39.120 How are gifted and talented services provided?
39.121 What is the WSU for gifted and talented students?

                      Language Development Programs

39.130 Can ISEF funds be used for Language Development Programs?
39.131 What is a Language Development Program?
39.132 Can a school integrate Language Development Programs into its 
          regular instructional program?
39.133 Who decides how Language Development funds can be used?
39.134 How does a school identify a Limited English Proficient student?
39.135 What services must be provided to an LEP student?
39.136 What is the WSU for Language Development programs?
39.137 May schools operate a language development program without a 
          specific appropriation from Congress?

                         Small School Adjustment

39.140 How does a school qualify for a Small School Adjustment?
39.141 What is the amount of the Small School Adjustment?
39.143 What is a small high school?
39.144 What is the small high school adjustment?
39.145 Can a school receive both a small school adjustment and a small 
          high school adjustment?
39.146 Is there an adjustment for small residential programs?

                     Geographic Isolation Adjustment

39.160 Does ISEF provide supplemental funding for extraordinary costs 
          related to a school's geographic isolation?

 Subpart C_Administrative Procedures, Student Counts, and Verifications

39.200 What is the purpose of the Indian School Equalization Formula?
39.201 Does ISEF reflect the actual cost of school operations?
39.202 What are the definitions of terms used in this subpart?
39.203 When does OIEP calculate a school's allotment?
39.204 How does OIEP calculate ADM?
39.205 How does OIEP calculate a school's total WSUs for the school 
          year?
39.206 How does OIEP calculate the value of one WSU?
39.207 How does OIEP determine a school's funding for the school year?
39.208 How are ISEP funds distributed?
39.209 When may a school count a student for membership purposes?
39.210 When must a school drop a student from its membership?
39.211 What other categories of students can a school count for 
          membership purposes?
39.212 Can a student be counted as enrolled in more than one school?
39.213 Will the Bureau fund children being home schooled?
39.214 What is the minimum number of instructional hours required in 
          order to be considered a full-time educational program?
39.215 Can a school receive funding for any part-time students?

                          Residential Programs

39.216 How does ISEF fund residential programs?
39.217 How are students counted for the purpose of funding residential 
          services?
39.218 Are there different formulas for different levels of residential 
          services?
39.219 What happens if a residential program does not maintain residency 
          levels required by this subpart?
39.220 What reports must residential programs submit to comply with this 
          rule?
39.221 What is a full school month?

                             Phase-in Period

39.230 How will the provisions of this subpart be phased in?

                        Subpart D_Accountability

39.401 What is the purpose of this subpart?
39.402 What definitions apply to terms used in this subpart?
39.403 What certification is required?
39.404 What is the certification and verification process?
39.405 How will verifications be conducted?
39.406 What documentation must the school maintain for additional 
          services it provides?
39.407 How long must a school maintain records?
39.408 What are the responsibilities of administrative officials?
39.409 How does the OIEP Director ensure accountability?
39.410 What qualifications must an audit firm meet to be considered for 
          auditing ISEP administration?
39.411 How will the auditor report its findings?
39.412 What sanctions apply for failure to comply with this subpart?

[[Page 174]]

39.413 Can a school appeal the verification of the count?

                       Subpart E_Contingency Fund

39.500 What emergency and contingency funds are available?
39.501 What is an emergency or unforeseen contingency?
39.502 How does a school apply for contingency funds?
39.503 How can a school use contingency funds?
39.504 May schools carry over contingency funds to a subsequent fiscal 
          year?
39.505 What are the reporting requirements for the use of the 
          contingency fund?

                Subpart F_School Board Training Expenses

39.600 Are Bureau-operated school board expenses funded by ISEP limited?
39.601 Is school board training for Bureau-operated schools considered a 
          school board expense subject to the limitation?
39.603 Is school board training required for all Bureau-funded schools?
39.604 Is there a separate weight for school board training at Bureau-
          operated schools?

                    Subpart G_Student Transportation

39.700 What is the purpose of this subpart?
39.701 What definitions apply to terms used in this subpart?

                          Eligibility for Funds

39.702 Can a school receive funds to transport residential students 
          using commercial transportation?
39.703 What ground transportation costs are covered for students 
          traveling by commercial transportation?
39.704 Are schools eligible to receive chaperone expenses to transport 
          residential students?
39.705 Are schools eligible for transportation funds to transport 
          special education students?
39.706 Are peripheral dormitories eligible for day transportation funds?
39.707 Which student transportation expenses are currently not eligible 
          for Student Transportation Funding?
39.708 Are miles generated by non-ISEP eligible students eligible for 
          transportation funding?

                    Calculating Transportation Miles

39.710 How does a school calculate annual bus transportation miles for 
          day students?
39.711 How does a school calculate annual bus transportation miles for 
          residential students?

                         Reporting Requirements

39.720 Why are there different reporting requirements for transportation 
          data?
39.721 What transportation information must off-reservation boarding 
          schools report?
39.722 What transportation information must day schools, on-reservation 
          boarding schools and peripheral dormitory schools report?

                        Miscellaneous Provisions

39.730 Which standards must student transportation vehicles meet?
39.731 Can transportation time be used as instruction time for day 
          school students?
39.732 How does OIEP allocate transportation funds to schools?

  Subpart H_Determining the Amount Necessary To Sustain an Academic or 
                           Residential Program

39.801 What is the formula to determine the amount necessary to sustain 
          a school's academic or residential program?
39.802 What is the student unit value in the formula?
39.803 What is a weighted student unit in the formula?
39.804 How is the SUIV calculated?
39.805 What was the student unit for instruction value (SUIV) for the 
          school year 1999-2000?
39.806 How is the SURV calculated?
39.807 How will the Student Unit Value be adjusted annually?
39.808 What definitions apply to this subpart?
39.809 Information collection.

           Subpart I_Interim Maintenance and Minor Repair Fund

39.900 Establishment and funding of an Interim Maintenance and Minor 
          Repair Fund.
39.901 Conditions for distribution.
39.902 Allocation.
39.903 Use of funds.
39.904 Limitations.

                  Subpart J_Administrative Cost Formula

39.1000 Purpose and scope.
39.1001 Definitions.
39.1002 Allotment of education administrative funds.
39.1003 Allotment exception for FY 1991.

                   Subpart K_Pre-kindergarten Programs

39.1100 Interim fiscal year 1980 and fiscal year 1981 funding for pre-
          kindergarten programs previously funded by the Bureau.

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39.1101 Addition of pre-kindergarten as a weight factor to the Indian 
          School Equalization Formula in fiscal year 1982.

        Subpart L_Contract School Operation and Maintenance Fund

39.1200 Definitions.
39.1201 Establishment of an interim fiscal year 1980 operation and 
          maintenance fund for contract schools.
39.1202 Distribution of funds.
39.1203 Future consideration of contract school operation and 
          maintenance funding.

    Authority: 25 U.S.C. 13, 2008; Public Law 107-110, 115 Stat. 1425.

    Source: 44 FR 61864, Oct. 26, 1979, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



                            Subpart A_General

    Source: 70 FR 22205, Apr. 28, 2005, unless otherwise noted.



Sec. 39.1  What is the purpose of this part?

    This part provides for the uniform direct funding of Bureau-operated 
and tribally operated day schools, boarding schools, and dormitories. 
This part applies to all schools, dormitories, and administrative units 
that are funded through the Indian School Equalization Program of the 
Bureau of Indian Affairs.



Sec. 39.2  What definitions apply to terms in this part?

    Act means the No Child Left Behind Act, Public Law 107-110, enacted 
January 8, 2002. The No Child Left Behind Act reauthorizes and amends 
the Elementary and Secondary Education Act (ESEA) and the amended 
Education Amendments of 1978.
    Agency means an organizational unit of the Bureau which provides 
direct services to the governing body or bodies and members of one or 
more specified Indian Tribes. The term includes Bureau Area Offices only 
with respect to off-reservation boarding schools administered directly 
by such Offices.
    Agency school board means a body, the members of which are appointed 
by the school boards of the schools located within such agency, and the 
number of such members shall be determined by the Director in 
consultation with the affected tribes, except that, in agencies serving 
a single school, the school board of such school shall fulfill these 
duties.
    Assistant Secretary means the Assistant Secretary of Indian Affairs, 
Department of the Interior, or his or her designee.
    At no cost means provided without charge, but does not preclude 
incidental fees normally charged to non-disabled students or their 
parents as a part of the regular education program.
    Average Daily Membership (ADM) means the aggregated ISEP-eligible 
membership of a school for a school year, divided by the number of 
school days in the school's submitted calendar.
    Basic program means the instructional program provided to all 
students at any age level exclusive of any supplemental programs that 
are not provided to all students in day or boarding schools.
    Basic transportation miles means the daily average of all bus miles 
logged for round trip home-to-school transportation of day students.
    Bureau means the Bureau of Indian Affairs in the Department of the 
Interior.
    Bureau-funded school means
    (1) Bureau school;
    (2) A contract or grant school; or
    (3) A school for which assistance is provided under the Tribally 
Controlled Schools Act of 1988.
    Bureau school means a Bureau-operated elementary or secondary day or 
boarding school or a Bureau-operated dormitory for students attending a 
school other than a Bureau school.
    Count Week means the last full week in September during which 
schools count their student enrollment for ISEP purposes.
    Director means the Director of the Office of Indian Education 
Programs in the Bureau of Indian Affairs or a designee.
    Education Line Officer means the Bureau official in charge of Bureau 
education programs and functions in an Agency who reports to the 
Director.
    Eligible Indian student means a student who:
    (1) Is a member of, or is at least one-fourth degree Indian blood 
descendant

[[Page 176]]

of a member of, a tribe that is eligible for the special programs and 
services provided by the United States through the Bureau of Indian 
Affairs to Indians because of their status as Indians;
    (2) Resides on or near a reservation or meets the criteria for 
attendance at a Bureau off-reservation home-living school; and
    (3) Is enrolled in a Bureau-funded school.
    Home schooled means a student who is not enrolled in a school and is 
receiving educational services at home at the parent's or guardian's 
initiative.
    Homebound means a student who is educated outside the classroom.
    Individual supplemental services means non-base academic services 
provided to eligible students. Individual supplemental services that are 
funded by additional WSUs are gifted and talented or language 
development services.
    ISEP means the Indian School Equalization Program.
    Limited English Proficient (LEP) means a child from a language 
background other than English who needs language assistance in his/her 
own language or in English in the schools. This child has sufficient 
difficulty speaking, writing, or understanding English to deny him/her 
the opportunity to learn successfully in English-only classrooms and 
meets one or more of the following conditions:
    (1) The child was born outside of the United States or the child's 
Native language is not English;
    (2) The child comes from an environment where a language other than 
English is dominant; or
    (3) The child is an American Indian or Alaska Native and comes from 
an environment where a language other than English has had a significant 
impact on the child's level of English language proficiency.
    Local School Board means a body chosen in accordance with the laws 
of the tribe to be served or, in the absence of such laws, elected by 
the parents of the Indian children attending the school. For a school 
serving a substantial number of students from different tribes:
    (1) The members of the local school board shall be appointed by the 
tribal governing bodies affected; and
    (2) The Secretary shall determine number of members in consultation 
with the affected tribes.
    OIEP means the Office of Indian Education Programs in the Bureau of 
Indian Affairs.
    Physical education means the development of physical and motor 
fitness, fundamental motor skills and patterns, and skills in aquatics, 
dance, and individual and group games and sports (including intramural 
and lifetime sports). The term includes special physical education, 
adapted physical education, movement education, and motor development.
    Resident means a student who is residing at a boarding school or 
dormitory during the weeks when student membership counts are conducted 
and is either:
    (1) A member of the instructional program in the same boarding 
school in which the student is counted as a resident; or
    (2) Enrolled in and a current member of a public school or another 
Bureau-funded school.
    Residential program means a program that provides room and board in 
a boarding school or dormitory to residents who are either:
    (1) Enrolled in and are current members of a public school or 
Bureau-funded school; or
    (2) Members of the instructional program in the same boarding school 
in which they are counted as residents and:
    (i) Are officially enrolled in the residential program of a Bureau-
operated or -funded school; and
    (ii) Are actually receiving supplemental services provided to all 
students who are provided room and board in a boarding school or a 
dormitory.
    Secretary means the Secretary of the Interior or a designated 
representative.
    School means a school funded by the Bureau of Indian Affairs. The 
term ``school'' does not include public, charter, or private schools.
    School bus means a passenger vehicle that is:
    (1) Used to transport day students to and/or from home and the 
school; and
    (2) Operated by an operator in the employ of, or under contract to, 
a Bureau-funded school, who is qualified to

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operate such a vehicle under Tribal, State or Federal regulations 
governing the transportation of students.
    School day means a day as defined by the submitted school calendar, 
as long as annual instructional hours are as they are reflected in Sec. 
39.213, excluding passing time, lunch, recess, and breaks.
    Special education means:
    (1) Specially designed instruction, at no cost to the parents, to 
meet the unique needs of a child with a disability, including:
    (i) Instruction conducted in the classroom, in the home, in 
hospitals and institutions, and in other settings; and
    (ii) Instruction in physical education.
    (2) The term includes each of the following, if it meets the 
requirements of paragraph (1) of this definition:
    (i) Speech-language pathology services, or any other related 
service, if the service is considered special education rather than a 
related service under State standards;
    (1) Travel training; and
    (2) Vocational education.
    Specially designed instruction means adapting, as appropriate, to 
the needs of an eligible child under this part, the content, 
methodology, or delivery or instruction:
    (1) To address the unique needs of the child that result from the 
child's disability; and
    (2) To ensure access of the child to the general curriculum, so that 
he or she can meet the educational standards within the jurisdiction of 
the public agency that apply to all children
    Three-year average means:
    (1) For academic programs, the average daily membership of the 3 
years before the current year of operation; and
    (2) For the residential programs, the count period membership of the 
3 years before the current year of operation.
    Travel training means providing instruction, as appropriate, to 
children with significant cognitive disabilities, and any other children 
with disabilities who require this instruction, to enable them to:
    (1) Develop an awareness of the environment in which they live; and
    (2) Learn the skills necessary to move efficiently and safely from 
place to place within that environment (e.g., in school, in the home, at 
work, and in the community).
    Tribally operated school means an elementary school, secondary 
school, or dormitory that receives financial assistance for its 
operation under a contract, grant, or agreement with the Bureau under 
section 102, 103(a), or 208 of 25 U.S.C. 450 et seq., or under the 
Tribally Controlled Schools Act of 1988.
    Vocational education means organized educational programs that are 
directly related to the preparation of individuals for paid or unpaid 
employment, or for additional preparation for a career requiring other 
than a baccalaureate or advanced degree.
    Unimproved roads means unengineered earth roads that do not have 
adequate gravel or other aggregate surface materials applied and do not 
have drainage ditches or shoulders.
    Weighted Student Unit means:
    (1) The measure of student membership adjusted by the weights or 
ratios used as factors in the Indian School Equalization Formula; and
    (2) The factor used to adjust the weighted student count at any 
school as the result of other adjustments made under this part.



Sec. 39.3  Information collection.

    Notwithstanding any other provision of law, no person is required to 
respond to, nor shall any person be subject to a penalty for failure to 
comply with a collection of information, subject to the requirements of 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), 
unless that collection of information displays a currently valid Office 
of Management and Budget (OMB) Control Number. This part contains in 
Sec. Sec. 39.410 and 39.502 collections of information subject to the 
PRA. These collections have been approved by OMB under control number 
1076-0163.



              Subpart B_Indian School Equalization Formula

    Source: 70 FR 22205, Apr. 28, 2005, unless otherwise noted.

[[Page 178]]



Sec. 39.100  What is the Indian School Equalization Formula?

    The Indian School Equalization Formula (ISEF) was established to 
allocate Indian School Equalization Program (ISEP) funds. OIEP applies 
ISEF to determine funding allocation for Bureau-funded schools as 
described in Sec. Sec. 39.204 through 39.206.



Sec. 39.101  Does ISEF assess the actual cost of school operations?

    No. ISEF does not attempt to assess the actual cost of school 
operations either at the local level or in the aggregate at the national 
level. ISEF provides a method of distribution of funds appropriated by 
Congress for all schools.

                      Base and Supplemental Funding



Sec. 39.102  What is academic base funding?

    Academic base funding is the ADM times the weighted student unit.



Sec. 39.103  What are the factors used to determine base funding?

    To determine base funding, schools must use the factors shown in the 
following table. The school must apply the appropriate factor to each 
student for funding purposes.

------------------------------------------------------------------------
                                                   Base          Base
                                                 academic    residential
                 Grade level                      funding      funding
                                                  factor        factor
------------------------------------------------------------------------
Kindergarten.................................          1.15      NA
Grades 1-3...................................          1.38    1.75
Grades 4-6...................................          1.15     1.6
Grades 7-8...................................          1.38     1.6
Grades 9-12..................................          1.5      1.6
------------------------------------------------------------------------



Sec. 39.104  How must a school's base funding provide for students with

disabilities?

    (a) Each school must provide for students with disabilities by:
    (1) Reserving 15 percent of academic base funding to support special 
education programs; and
    (2) Providing resources through residential base funding to meet the 
needs of students with disabilities under the National Criteria for 
Home-Living Situations.
    (b) A school may spend all or part of the 15 percent academic base 
funding reserved under paragraph (a)(1) of this section on school-wide 
programs to benefit all students (including those without disabilities) 
only if the school can document that it has met all needs of students 
with disabilities with such funds, and after having done so, there are 
unspent funds remaining from such funds.



Sec. 39.105  Are additional funds available for special education?

    (a) Schools may supplement the 15 percent base academic funding 
reserved under Sec. 39.104 for special education with funds available 
under part B of the Individuals with Disabilities Education Act (IDEA). 
To obtain part B funds, the school must submit an application to OIEP. 
IDEA funds are available only if the school demonstrates that funds 
reserved under Sec. 39.104(a) are inadequate to pay for services needed 
by all eligible ISEP students with disabilities.
    (b) The Bureau will facilitate the delivery of IDEA part B funding 
by:
    (1) Providing technical assistance to schools in completing the 
application for the funds; and
    (2) Providing training to Bureau staff to improve the delivery of 
part B funds.



Sec. 39.106  Who is eligible for special education funding?

    To receive ISEP special education funding, a student must be under 
22 years old and must not have received a high school diploma or its 
equivalent on the first day of eligible attendance. The following 
minimum age requirements also apply:
    (a) To be counted as a kindergarten student, a child must be at 
least 5 years old by December 31; and
    (b) To be counted as a first grade student; a child must be at least 
6 years old by December 31.



Sec. 39.107  Are schools allotted supplemental funds for special 

student and/or school costs?

    Yes, schools are allotted supplemental funds for special student 
and/or school costs. ISEF provides additional funds to schools through 
add-on weights (called special cost factors).

[[Page 179]]

ISEF adds special cost factors as shown in the following table.

------------------------------------------------------------------------
                Cost Factor                   For more information see
------------------------------------------------------------------------
Gifted and talented students..............  Sec. Sec.  39.110 through
                                             39.121
Students with language development needs..  Sec. Sec.  39.130 through
                                             39.137
Small school size.........................  Sec. Sec.  39.140 through
                                             39.156
Geographic isolation of the school........  Sec.  39.160
------------------------------------------------------------------------

                      Gifted and Talented Programs



Sec. 39.110  Can ISEF funds be distributed for the use of gifted and 

talented students?

    Yes, ISEF funds can be distributed for the provision of services for 
gifted and talented students.



Sec. 39.111  What does the term gifted and talented mean?

    The term gifted and talented means students, children, or youth who:
    (a) Give evidence of high achievement capability in areas such as 
intellectual, creative, artistic, or leadership capacity, or in specific 
academic fields; and
    (b) Need services or activities not ordinarily provided by the 
school in order to fully develop those capabilities.



Sec. 39.112  What is the limit on the number of students who are gifted

and talented?

    There is no limit on the number of students that a school can 
classify as gifted and talented.



Sec. 39.113  What are the special accountability requirements for the

gifted and talented program?

    If a school identifies more than 13 percent of its student 
population as gifted and talented the Bureau will immediately audit the 
school's gifted and talented program to ensure that all identified 
students:
    (a) Meet the gifted and talented requirement in the regulations; and
    (b) Are receiving gifted and talented services.



Sec. 39.114  What characteristics may qualify a student as gifted and 

talented for purposes of supplemental funding?

    To be funded as gifted and talented under this part, a student must 
be identified as gifted and talented in at least one of the following 
areas.
    (a) Intellectual Ability means scoring in the top 5 percent on a 
statistically valid and reliable measurement tool of intellectual 
ability.
    (b) Creativity/Divergent Thinking means scoring in the top 5 percent 
of performance on a statistically valid and reliable measurement tool of 
creativity/divergent thinking.
    (c) Academic Aptitude/Achievement means scoring in the top 15 
percent of academic performance in a total subject area score on a 
statistically valid and reliable measurement tool of academic 
achievement/aptitude, or a standardized assessment, such as an NRT or 
CRT.
    (d) Leadership means the student is recognized as possessing the 
ability to lead, guide, or influence the actions of others as measured 
by objective standards that a reasonable person of the community would 
believe demonstrates that the student possess leadership skills. These 
standards include evidence from surveys, supportive documentation 
portfolios, elected or appointed positions in school, community, clubs 
and organization, awards documenting leadership capabilities. No school 
can identify more than 15 percent of its student population as gifted 
and talented through the leadership category.
    (e) Visual and Performing Arts means outstanding ability to excel in 
any imaginative art form; including, but not limited to, drawing, 
printing, sculpture, jewelry making, music, dance, speech, debate, or 
drama as documented from surveys, supportive documentation portfolios, 
awards from judged or juried competitions. No school can identify more 
than 15 percent of its student population as gifted and talented through 
the visual and performing arts category.



Sec. 39.115  How are eligible gifted and talented students identified 

and nominated?

    (a) Screening can be completed annually to identify potentially 
eligible students. A student may be nominated for gifted and talented 
designation using the criteria in Sec. 39.114 by any of the following:

[[Page 180]]

    (1) A teacher or other school staff;
    (2) Another student;
    (3) A community member;
    (4) A parent or legal guardian; or
    (5) The student himself or herself.
    (b) Students can be nominated based on information regarding the 
student's abilities from any of the following sources:
    (1) Collections of work;
    (2) Audio/visual tapes;
    (3) School grades;
    (4) Judgment of work by qualified individuals knowledgeable about 
the student's performances (e.g., artists, musicians, poets, historians, 
etc.);
    (5) Interviews or observations; or
    (6) Information from other sources.
    (c) The school must have written parental consent to collect 
documentation of gifts and talents under paragraph (b) of this section.



Sec. 39.116  How does a school determine who receives gifted and 

talented services?

    (a) To determine who receives gifted and talented funding, the 
school must use qualified professionals to perform a multi-disciplinary 
assessment. The assessment may include the examination of work samples 
or performance appropriate to the area under consideration. The school 
must have the parent or guardian's written permission to conduct 
individual assessments or evaluations. Assessments under this section 
must meet the following standards:
    (1) The assessment must use assessment instruments specified in 
Sec. 39.114 for each of the five criteria for which the student is 
nominated;
    (2) If the assessment uses a multi-criteria evaluation, that 
evaluation must be an unbiased evaluation based on student needs and 
abilities;
    (3) Indicators for visual and performing arts and leadership may be 
determined based on national, regional, or local criteria; and
    (4) The assessment may use student portfolios.
    (b) A multi-disciplinary team will review the assessment results to 
determine eligibility for gifted and talented services. The purpose of 
the team is to determine eligibility and placement to receive gifted and 
talented services.
    (1) Team members may include nominator, classroom teacher, qualified 
professional who conducted the assessment, local experts as needed, and 
other appropriate personnel such as the principal and/or a counselor.
    (2) A minimum of three team members is required to determine 
eligibility.
    (3) The team will design a specific education plan to provide gifted 
and talented services related in the areas identified.



Sec. 39.117  How does a school provide gifted and talented services

for a student?

    Gifted and talented services are provided through or under the 
supervision of highly qualified professional teachers. To provide gifted 
and talented services for a student, a school must take the steps in 
this section.
    (a) The multi-disciplinary team formed under Sec. 39.116(b) will 
sign a statement of agreement for placement of services based on 
documentation reviewed.
    (b) The student's parent or guardian must give written permission 
for the student to participate.
    (c) The school must develop a specific education plan that contains:
    (1) The date of placement;
    (2) The date services will begin;
    (3) The criterion from Sec. 39.114 for which the student is 
receiving services and the student's performance level;
    (4) Measurable goals and objectives; and
    (5) A list of staff responsible for each service that the school is 
providing.



Sec. 39.118  How does a student receive gifted and talented services 

in subsequent years?

    For each student receiving gifted and talented services, the school 
must conduct a yearly evaluation of progress, file timely progress 
reports, and update the specific education plan.
    (a) If a school identifies a student as gifted and talented based on 
Sec. 39.114 (a), (b), or (c), then the student does not need to reapply 
for the gifted and talented program. However, the student must be 
reevaluated at least every 3 years through the 10th grade to verify 
eligibility for funding.

[[Page 181]]

    (b) If a school identifies a student as gifted and talented based on 
Sec. 39.114 (d) or (e), the student must be reevaluated annually for 
the gifted and talented program.



Sec. 39.119  When must a student leave a gifted and talented program?

    A student must leave the gifted and talented program when either:
    (a) The student has received all of the available services that can 
meet the student's needs;
    (b) The student no longer meets the criteria that have qualified him 
or her for the program; or
    (c) The parent or guardian removes the student from the program.



Sec. 39.120  How are gifted and talented services provided?

    In providing services under this section, the school must:
    (a) Provide a variety of programming services to meet the needs of 
the students;
    (b) Provide the type and duration of services identified in the 
Individual Education Plan established for each student; and
    (c) Maintain individual student files to provide documentation of 
process and services; and
    (d) Maintain confidentiality of student records under the Family 
Educational Rights and Privacy Act (FERPA).



Sec. 39.121  What is the WSU for gifted and talented students?

    The WSU for a gifted and talented student is the base academic 
weight (see Sec. 39.103) subtracted from 2.0. The following table shows 
the gifted and talented weights obtained using this procedure.

------------------------------------------------------------------------
                                                             Gifted and
                        Grade level                         talented WSU
------------------------------------------------------------------------
Kindergarten..............................................          0.85
Grades 1 to 3.............................................          0.62
Grades 4 to 6.............................................          0.85
Grades 7 to 8.............................................          0.62
Grades 9 to 12............................................          0.50
------------------------------------------------------------------------

                      Language Development Programs



Sec. 39.130  Can ISEF funds be used for Language Development Programs?

    Yes, schools can use ISEF funds to implement Language Development 
programs that demonstrate the positive effects of Native language 
programs on students' academic success and English proficiency. Funds 
can be distributed to a total aggregate instructional weight of 0.13 for 
each eligible student.



Sec. 39.131  What is a Language Development Program?

    A Language Development program is one that serves students who 
either:
    (a) Are not proficient in spoken or written English;
    (b) Are not proficient in any language;
    (c) Are learning their Native language for the purpose of 
maintenance or language restoration and enhancement;
    (d) Are being instructed in their Native language; or
    (e) Are learning non-language subjects in their Native language.



Sec. 39.132  Can a school integrate Language Development programs

into its regular instructional program?

    A school may offer Language Development programs to students as part 
of its regular academic program. Language Development does not have to 
be offered as a stand-alone program.



Sec. 39.133  Who decides how Language Development funds can be used?

    Tribal governing bodies or local school boards decide how their 
funds for Language Development programs will be used in the 
instructional program to meet the needs of their students.



Sec. 39.134  How does a school identify a Limited English Proficient

student?

    A student is identified as limited English proficient (LEP) by using 
a nationally recognized scientifically research-based test.



Sec. 39.135  What services must be provided to an LEP student?

    A school must provide services that assist each LEP student to:

[[Page 182]]

    (a) Become proficient in English and, to the extent possible, 
proficient in their Native language; and
    (b) Meet the same challenging academic content and student academic 
achievement standards that all students are expected to meet under 20 
U.S.C. 6311(b)(1).



Sec. 39.136  What is the WSU for Language Development programs?

    Language Development programs are funded at 0.13 WSUs per student.



Sec. 39.137  May schools operate a language development program 

without a specific appropriation from Congress?

    Yes, a school may operate a language development program without a 
specific appropriation from Congress, but any funds used for such a 
program must come from existing ISEP funds. When Congress specifically 
appropriates funds for Indian or Native languages, the factor to support 
the language development program will be no more than 0.25 WSU.

                         Small School Adjustment



Sec. 39.140  How does a school qualify for a Small School Adjustment?

    A school will receive a small school adjustment if either:
    (a) Its average daily membership (ADM) is less than 100 students; or
    (b) It serves lower grades and has a diploma-awarding high school 
component with an average instructional daily membership of less than 
100 students.



Sec. 39.141  What is the amount of the Small School Adjustment?

    (a) A school with a 3-year ADM of 50 or fewer students will receive 
an adjustment equivalent to an additional 12.5 base WSU; or
    (b) A school with a 3-year ADM of 51 to 99 students will use the 
following formula to determine the number of WSU for its adjustment. 
With X being the ADM, the formula is as follows:

WSU adjustment = ((100-X)/200)*X



Sec. 39.143  What is a small high school?

    For purposes of this part, a small high school:
    (a) Is accredited under 25 U.S.C. 2001(b);
    (b) Is staffed with highly qualified teachers;
    (c) Operates any combination of grades 9 through 12;
    (d) Offers high school diplomas; and
    (e) Has an ADM of fewer than 100 students.



Sec. 39.144  What is the small high school adjustment?

    (a) The small high school adjustment is a WSU adjustment given to a 
small high school that meets both of the following criteria:
    (1) It has a 3-year average daily membership (ADM) of less than 100 
students; and
    (2) It operates as part of a school that during the 2003-04 school 
year also included lower grades.
    (b) The following table shows the WSU adjustment given to small high 
schools. In the table, ``X'' stands for the ADM.

------------------------------------------------------------------------
                                                         School receives
                                                           a component
 ADM of high school  component   Amount of small high     small school
                                   school adjustment    adjustment under
                                                          Sec.  39.141
------------------------------------------------------------------------
50 or fewer students..........  6.25 base WSU.........  Yes.
51 to 99 students.............  determined using the    Yes.
                                 following formula:
                                 WSU = ((100-X)/200)*X/
                                 2.
50 or fewer students..........  12.5 base WSU.........  No.
51 to 99 students.............  determined using the    No.
                                 following formula:
                                 WSU = ((100-X)/200)*X.
------------------------------------------------------------------------



Sec. 39.145  Can a school receive both a small school adjustment and 

a small high school adjustment?

    A school that meets the criteria in Sec. 39.140 can receive both a 
small school adjustment and a small high school adjustment. The 
following table shows the total amount of adjustments for eligible 
schools by average daily membership (ADM) category.

[[Page 183]]



----------------------------------------------------------------------------------------------------------------
                                                     ADM--high                      Small high
               ADM--entire school                     school       Small school       school           Total
                                                     component      adjustment      adjustment      adjustment
----------------------------------------------------------------------------------------------------------------
1-50............................................              NA            12.5              NA            12.5
1-50............................................            1-50            12.5            6.25           18.75
51-99...........................................            1-50    \2\ 12.5-0.5            6.25      18.75-6.75
51-99...........................................           51-99    \1\ 12.5-0.5   \2\ 6.25-0.25       18.75-0.7
99..............................................            1-50             0.5            12.5            12.5
99..............................................           51-99             0.5    \2\ 12.5-0.5       12.5-0.5
----------------------------------------------------------------------------------------------------------------
\1\ The amount of the adjustment is within this range. The exact figure depends upon the results obtained using
  the formula in Sec.  39.141.
\2\ The amount of the adjustment is within this range. The exact figure depends upon the results obtained using
  the formula in Sec.  39.144.



Sec. 39.146  Is there an adjustment for small residential programs?

    In order to compensate for the additional costs of operating a small 
residential program, OIEP will add to the total WSUs of each qualifying 
school as shown in the following table:

------------------------------------------------------------------------
      Type of residential program              Number of WSUs added
------------------------------------------------------------------------
Residential student count of 50 or       12.5.
 fewer ISEP-eligible students.
Residential student count of between 51  Determined by the formula ((100-
 and 99 ISEP-eligible students.           X)/200))X, where X equals the
                                          residential student count.
------------------------------------------------------------------------

                     Geographic Isolation Adjustment



Sec. 39.160  Does ISEF provide supplemental funding for extraordinary

costs related to a school's geographic isolation?

    Yes. Havasupai Elementary School, for as long as it remains in its 
present location, will be awarded an additional cost factor of 12.5 WSU.



 Subpart C_Administrative Procedures, Student Counts, and Verifications

    Source: 70 FR 22205, Apr. 28, 2005, unless otherwise noted.



Sec. 39.200  What is the purpose of the Indian School Equalization

Formula?

    OIEP uses the Indian School Equalization Formula (ISEF) to 
distribute Indian School Equalization Program (ISEP) appropriations 
equitably to Bureau-funded schools.



Sec. 39.201  Does ISEF reflect the actual cost of school operations?

    ISEF does not attempt to assess the actual cost of school operations 
either at the local school level or in the aggregate nationally. ISEF is 
a relative distribution of available funds at the local school level by 
comparison with all other Bureau-funded schools.



Sec. 39.202  What are the definitions of terms used in this subpart?

    Homebound means a student who is educated outside the classroom.
    Home schooled means a student who is not enrolled in a school and is 
receiving educational services at home at the parent's or guardian's 
initiative.
    School day means a day as defined by the submitted school calendar, 
as long as annual instructional hours are as they are reflected in Sec. 
39.213, excluding passing time, lunch, recess, and breaks.
    Three-year average means:
    (1) For academic programs, the average daily membership of the 3 
years before the current year of operation; and
    (2) For the residential programs, the count period membership of the 
3 years before the current year of operation.



Sec. 39.203  When does OIEP calculate a school's allotment?

    OIEP calculates a school's allotment no later than July 1. Schools 
must submit final ADM enrollment figures no later than June 15.



Sec. 39.204  How does OIEP calculate ADM?

    OIEP calculates ADM by:
    (a) Adding the total enrollment figures from periodic reports 
received from each Bureau-funded school; and

[[Page 184]]

    (b) Dividing the total enrollment for each school by the number of 
days in the school's reporting period.



Sec. 39.205  How does OIEP calculate a school's total WSUs for the 

school year?

    (a) OIEP will add the weights obtained from the calculations in 
paragraphs (a)(1), (a)(2), and (a)(3) of this section to obtain the 
total weighted student units (WSUs) for each school.
    (1) Each year's ADM is multiplied by the applicable weighted student 
unit for each grade level;
    (2) Calculate any supplemental WSUs generated by the students; and
    (3) Calculate any supplemental WSUs generated by the schools.
    (b) The total WSU for the school year is the sum of paragraphs 
(a)(1), (a)(2), and (a)(3) of this section.



Sec. 39.206  How does OIEP calculate the value of one WSU?

    (a) To calculate the appropriated dollar value of one WSU, OIEP 
divides the systemwide average number of WSUs for the previous 3 years 
into the current year's appropriation.
    (b) To calculate the average WSU for a 3-year period:
    (1) Step 1. Add together each year's total WSU (calculated under 
paragraph (b) of this section); and
    (2) Step 2. Divide the sum obtained in step 1 by 3.



Sec. 39.207  How does OIEP determine a school's funding for the school

year?

    To determine a school's funding for the school year, OIEP uses the 
following seven-step process:
    (a) Step 1. Multiply the appropriate base academic and/or 
residential weight from Sec. 39.103 by the number of students in each 
grade level category.
    (b) Step 2. Multiply the number of students eligible for 
supplemental program funding under Sec. 39.107 by the weights for the 
program.
    (c) Step 3. Calculate the school-based supplemental weights under 
Sec. 639.107.
    (d) Step 4. Add together the sums obtained in steps 1 through 3 to 
obtain each school's total WSU.
    (e) Step 5. Add together the total WSUs for all Bureau-funded 
schools.
    (f) Step 6. Calculate the value of a WSU by dividing the current 
school year's funds by the average total WSUs as calculated under step 5 
for the previous 3 years.
    (g) Step 7. Multiply each school's WSU total by the base value of 
one WSU to determine funding for that school.



Sec. 39.208  How are ISEP funds distributed?

    (a) On July 1, schools will receive 80 percent of their funds as 
determined in Sec. 39.207.
    (b) On December 1, the balance will be distributed to all schools 
after verification of the school count and any adjustments made through 
the appeals process for the third year.



Sec. 39.209  When may a school count a student for membership purposes?

    If a student is enrolled, is in attendance during any of the first 
10 days of school, and receives at least 5 days' instruction, the 
student is deemed to be enrolled all 10 days and shall be counted for 
ADM purposes. The first 10 days of school, for purposes of this section, 
are determined by the calendar that the school submits to OIEP.
    (a) For ISEP purposes, a school can add a student to the membership 
when he or she has been enrolled and has received a full day of 
instruction from the school.
    (b) Except as provided in Sec. 39.210, to be counted for ADM, a 
student dropped under Sec. 39.209 must:
    (1) Be re-enrolled; and
    (2) Receive a full day of instruction from the school.



Sec. 39.210  When must a school drop a student from its membership?

    If a student is absent for 10 consecutive school days, the school 
must drop that student from the membership for ISEP purposes of that 
school on the 11th day.



Sec. 39.211  What other categories of students can a school count 

for membership purposes?

    A school can count other categories of students for membership 
purposes as shown in the following table.

[[Page 185]]



------------------------------------------------------------------------
                                            Circumstances under which
            Type of  student              student can be included in the
                                               school's membership
------------------------------------------------------------------------
(a) Homebound..........................  (1) The student is temporarily
                                          confined to the home for some
                                          or all of the school day for
                                          medical, family emergency, or
                                          other reasons required by law
                                          or regulation;
                                         (2) The student is being
                                          provided by the school with at
                                          least 5 documented contact
                                          hours each week of academic
                                          services by certified
                                          educational personnel; and
                                         (3) Appropriate documentations
                                          is on file at the school.
(b) Located in an institutional setting  The school is either:
 outside of the school.                  (1) Paying for the student to
                                          receive educational services
                                          from the facility; or
                                         (2) Providing educational
                                          services by certified school
                                          staff for at least 5
                                          documented contact hours each
                                          week.
(c) Taking college courses during the    The student is both:
 school day.                             (1) Concurrently enrolled in,
                                          and receiving credits for both
                                          the school's courses and
                                          college courses; and
                                         (2) In physical attendance at
                                          the school at least 3
                                          documented contact hours per
                                          day.
(d) Taking distance learning courses...  The student is both:
                                         (1) Receiving high school
                                          credit for grades; and
                                         (2) In physical attendance at
                                          the school at least 3
                                          documented contact hours per
                                          day.
(e) Taking internet courses............  The student is both:
                                         (1) Receiving high school
                                          credit for grades; and
                                         (2) Taking the courses at the
                                          school site under a teacher's
                                          supervision.
------------------------------------------------------------------------



Sec. 39.212  Can a student be counted as enrolled in more than one

school?

    Yes, if a student attends more than one school during an academic 
year, each school may count the student as enrolled once the student 
meets the criteria in 39.209.



Sec. 39.213  Will the Bureau fund children being home schooled?

    No, the Bureau will not fund any child that is being home schooled.



Sec. 39.214  What is the minimum number of instructional hours required

in order to be considered a full-time educational program?

    A full time program provides the following number of instructional/
student hours to the corresponding grade level:

------------------------------------------------------------------------
                           Grade                                Hours
------------------------------------------------------------------------
K..........................................................          720
1-3........................................................          810
4-8........................................................          900
9-12.......................................................          970
------------------------------------------------------------------------



Sec. 39.215  Can a school receive funding for any part-time students?

    (a) A school can receive funding for the following part-time 
students:
    (1) Kindergarten students enrolled in a 2-hour program; and
    (2) Grade 7-12 students enrolled in at least half but less than a 
full instructional day.
    (b) The school must count students classified as part-time at 50 
percent of their basic instructional WSU value.

                          Residential Programs



Sec. 39.216  How does ISEF fund residential programs?

    Residential programs are funded on a WSU basis using a formula that 
takes into account the number of nights of service per week. Funding for 
residential programs is based on the average of the 3 previous years' 
residential WSUs.



Sec. 39.217  How are students counted for the purpose of funding 

residential services?

    For a student to be considered in residence for purposes of this 
subpart, the school must be able to document that the student was:
    (a) In residence at least one night during the first full week of 
October;
    (b) In residence at least one night during the week preceding the 
first full week in October;
    (c) In residence at least one night during the week following the 
first full week in October; and
    (d) Present for both the after school count and the midnight count 
at least one night during each week specified in this section.



Sec. 39.218  Are there different formulas for different levels of

residential services?

    (a) Residential services are funded as shown in the following table:

------------------------------------------------------------------------
                                              Each student is funded at
  If a residential program operates . . .        the level of . . .
------------------------------------------------------------------------
(1) 4 nights per week or less.............  Total WSU x 4/7.
(2) 5, 6 or 7 nights per week.............  Total WSU x 7/7.
------------------------------------------------------------------------


[[Page 186]]

    (b) In order to qualify for residential services funding under 
paragraph (a)(2) of this section, a school must document that at least 
10 percent of residents are present on 3 of the 4 weekends during the 
count period.
    (c) At least 50 percent of the residency levels established during 
the count period must be maintained every month for the remainder of the 
school year.
    (d) A school may obtain waivers from the requirements of this 
section if there are health or safety justifications.



Sec. 39.219  What happens if a residential program does not maintain

residency levels required by this subpart?

    Each school must maintain its declared nights of service per week as 
certified in its submitted school calendar. For each month that a school 
does not maintain 25 percent of the residency shown in its submitted 
calendar, the school will lose one-tenth of its current year allocation.



Sec. 39.220  What reports must residential programs submit to comply 

with this subpart?

    Residential programs must report their monthly counts to the 
Director on the last school day of the month. To be counted, a student 
must have been in residence at least 10 nights during each full school 
month.



Sec. 39.221  What is a full school month?

    A full school month is each 30-day period following the first day 
that residential services are provided to students based on the school 
residential calendar.

                             Phase-in Period



Sec. 39.230  How will the provisions of this subpart be phased in?

    The calculation of the three-year rolling average of ADM for each 
school and for the entire Bureau-funded school system will be phased-in 
as shown in the following table.

------------------------------------------------------------------------
              Time period                  How OIEP must calculate ADM
------------------------------------------------------------------------
(a) First school year after May 31,      Use the prior 3 years' count
 2005.                                    period to create membership
                                          for funding purposes
(b) Second school year after May 31,     (1) The academic program will
 2005.                                    use the previous year's ADM
                                          school year and the 2 prior
                                          years' count periods; and
                                         (2) The residential program
                                          will use the previous year's
                                          count period and the 2 prior
                                          years' count weeks
(c) Each succeeding school year after    Add one year of ADM or count
 May 31, 2005.                            period and drop one year of
                                          prior count weeks until both
                                          systems are operating on a 3-
                                          year rolling average using the
                                          previous 3 years' count after
                                          period or ADM, respectively.
------------------------------------------------------------------------



                        Subpart D_Accountability

    Source: 70 FR 22205, Apr. 28, 2005, unless otherwise noted.



Sec. 39.401  What is the purpose of this subpart?

    The purpose of this subpart is to ensure accountability of 
administrative officials by creating procedures that are systematic and 
can be verified by a random independent outside auditing procedures. 
These procedures will ensure the equitable distribution of funds among 
schools.



Sec. 39.402  What definitions apply to terms used in this subpart?

    Administrative officials means any persons responsible for managing 
and operating a school, including the school supervisor, the chief 
school administrator, tribal officials, Education Line Officers, and the 
Director, OIEP.
    Director means the Director of the Office of Indian Education 
Programs of the Bureau of Indian Affairs.
    Education Line Officer means the Bureau official in charge of Bureau 
education programs and functions in an Agency who reports to the 
Director.

[[Page 187]]



Sec. 39.403  What certification is required?

    (a) Each school must maintain an individual file on each student 
receiving basic educational and supplemental services. The file must 
contain written documentation of the following:
    (1) Each student's eligibility and attendance records;
    (2) A complete listing of all supplemental services provided, 
including all necessary documentation required by statute and 
regulations (e.g., a current and complete Individual Education Plan for 
each student receiving supplemental services); and
    (3) Documentation of expenditures and program delivery for student 
transportation to and from school provided by commercial carriers.
    (b) The School must maintain the following files in a central 
location:
    (1) The school's ADM and supplemental program counts and residential 
count;
    (2) Transportation related documentation, such as school bus 
mileage, bus routes;
    (3) A list of students transported to and from school;
    (4) An electronic student count program or database;
    (5) Class record books;
    (6) Supplemental program class record books;
    (7) For residential programs, residential student attendance 
documentation;
    (8) Evidence of teacher certification; and
    (9) The school's accreditation certificate.
    (c) The Director must maintain a record of required certifications 
for ELOs, specialists, and school superintendents in a central location.



Sec. 39.404  What is the certification and verification process?

    (a) Each school must:
    (1) Certify that the files required by Sec. 39.403 are complete and 
accurate; and
    (2) Compile a student roster that includes a complete list of all 
students by grade, days of attendance, and supplemental services.
    (b) The chief school administrator and the president of the school 
board are responsible for certifying the school's ADM and residential 
count is true and accurate to the best of their knowledge or belief and 
is supported by appropriate documentation.
    (c) OIEP's education line officer (ELO) will annually review the 
following to verify that the information is true and accurate and is 
supported by program documentation:
    (1) The eligibility of every student;
    (2) The school's ADM and supplemental program counts and residential 
count;
    (3) Evidence of accreditation;
    (4) Documentation for all provided basic and supplemental services, 
including all necessary documentation required by statute and 
regulations (e.g., a current and complete Individual Education Plan for 
each student receiving supplemental services); and
    (5) Documentation required by subpart G of this part for student 
transportation to and from school provided by commercial carriers.



Sec. 39.405  How will verifications be conducted?

    The eligibility of every student shall be verified. The ELO will 
take a random sampling of five days with a minimum of one day per 
grading period to verify the information in Sec. 39.404(c). The ELO 
will verify the count for the count period and verify residency during 
the remainder of the year.



Sec. 39.406  What documentation must the school maintain for additional

services it provides?

    Every school must maintain a file on each student receiving 
additional services. (Additional services include homebound services, 
institutional services, distance courses, Internet courses or college 
services.) The school must certify, and its records must show, that:
    (a) Each homebound or institutionalized student is receiving 5 
contact hours each week by certified educational personnel;
    (b) Each student taking college, distance or internet courses is in 
physical attendance at the school for at least 3 certified contact hours 
per day.

[[Page 188]]



Sec. 39.407  How long must a school maintain records?

    The responsible administrative official for each school must 
maintain records relating to ISEP, supplemental services, and 
transportation-related expenditures. The official must maintain these 
records in appropriate retrievable storage for at least the four years 
prior to the current school year, unless Federal records retention 
schedules require a longer period.



Sec. 39.408  What are the responsibilities of administrative officials?

    Administrative officials have the following responsibilities:
    (a) Applying the appropriate standards in this part for classifying 
and counting ISEP eligible Indian students at the school for formula 
funding purposes;
    (b) Accounting for and reporting student transportation 
expenditures;
    (c) Providing training and supervision to ensure that appropriate 
standards are adhered to in counting students and accounting for student 
transportation expenditures;
    (d) Submitting all reports and data on a timely basis; and
    (e) Taking appropriate disciplinary action for failure to comply 
with requirements of this part.



Sec. 39.409  How does the OIEP Director ensure accountability?

    (a) The Director of OIEP must ensure accountability in student 
counts and student transportation by doing all of the following:
    (1) Conducting annual independent and random field audits of the 
processes and reports of at least one school per OIEP line office to 
ascertain the accuracy of Bureau line officers' reviews;
    (2) Hearing and making decisions on appeals from school officials;
    (3) Reviewing reports to ensure that standards and policies are 
applied consistently, education line officers treat schools fairly and 
equitably, and the Bureau takes appropriate administrative action for 
failure to follow this part; and
    (4) Reporting the results of the findings and determinations under 
this section to the appropriate tribal governing body.
    (b) The purpose of the audit required by paragraph (a)(1) of this 
section is to ensure that the procedures outlined in these regulations 
are implemented. To conduct the audit required by paragraph (a)(1) of 
this section, OIEP will select an independent audit firm that will:
    (1) Select a statistically valid audit sample of recent student 
counts and student transportation reports; and
    (2) Analyze these reports to determine adherence to the requirements 
of this part and accuracy in reporting.



Sec. 39.410  What qualifications must an audit firm meet to be 

considered for auditing ISEP administration?

    To be considered for auditing ISEP administration under this 
subpart, an independent audit firm must:
    (a) Be a licensed Certified Public Accountant Firm that meets all 
requirements for conducting audits under the Federal Single Audit Act;
    (b) Not be under investigation or sanction for violation of 
professional audit standards or ethics;
    (c) Certify that it has conducted a conflict of interests check and 
that no conflict exists; and
    (d) Be selected through a competitive bidding process.



Sec. 39.411  How will the auditor report its findings?

    (a) The auditor selected under Sec. 39.410 must:
    (1) Provide an initial draft report of its findings to the governing 
board or responsible Federal official for the school(s) involved; and
    (2) Solicit, consider, and incorporate a response to the findings, 
where submitted, in the final audit report.
    (b) The auditor must submit a final report to the Assistant 
Secretary--Indian Affairs and all tribes served by each school involved. 
The report must include all documented exceptions to the requirements of 
this part, including those exceptions that:
    (1) The auditor regards as negligible;
    (2) The auditor regards as significant, or as evidence of 
incompetence on the part of responsible officials, and that must be 
resolved in a manner similar

[[Page 189]]

to significant audit exceptions in a fiscal audit; or
    (3) Involve fraud and abuse.
    (c) The auditor must immediately report exceptions involving fraud 
and abuse directly to the Department of the Interior Inspector General's 
office.



Sec. 39.412  What sanctions apply for failure to comply with this

subpart?

    (a) The employer of a responsible administrative official must take 
appropriate personnel action if the official:
    (1) Submits false or fraudulent ISEP-related counts;
    (2) Submits willfully inaccurate counts of student participation in 
weighted program areas; or
    (3) Certifies or verifies submissions described in paragraphs (a)(1) 
or (a)(2) of this section.
    (b) Unless prohibited by law, the employer must report:
    (1) Notice of final Federal personnel action to the tribal governing 
body and tribal school board; and
    (2) Notice of final tribal or school board personnel action to the 
Director of OIEP.



Sec. 39.413  Can a school appeal the verification of the count?

    Yes, a school may appeal to the Director any administrative action 
disallowing any academic, transportation, supplemental program or 
residential count. In this appeal, the school may provide evidence to 
indicate the student's eligibility, membership or residency or adequacy 
of a program for all or a portion of school year. The school must follow 
the applicable appeals process in 25 CFR part 2 or 25 CFR part 900, 
subpart L.



                       Subpart E_Contingency Fund

    Source: 70 FR 22205, Apr. 28, 2005, unless otherwise noted.



Sec. 39.500  What emergency and contingency funds are available?

    The Secretary:
    (a) Must reserve 1 percent of funds from the allotment formula to 
meet emergencies and unforeseen contingencies affecting educational 
programs;
    (b) Can carry over to the next fiscal year a maximum of 1 percent 
the current year funds; and
    (c) May distribute all funds in excess of 1 percent equally to all 
schools or distribute excess as a part of ISEP.



Sec. 39.501  What is an emergency or unforeseen contingency?

    An emergency or unforeseen contingency is an event that meets all of 
the following criteria:
    (a) It could not be planned for;
    (b) It is not the result of mismanagement, malfeasance, or willful 
neglect;
    (c) It is not covered by an insurance policy in force at the time of 
the event;
    (d) The Assistant Secretary determines that Bureau cannot reimburse 
the emergency from the facilities emergency repair fund; and
    (e) It could not have been prevented by prudent action by officials 
responsible for the educational program.



Sec. 39.502  How does a school apply for contingency funds?

    To apply for contingency funds, a school must send a request to the 
ELO. The ELO must send the request to the Director for consideration 
within 48 hours of receipt. The Director will consider the severity of 
the event and will attempt to respond to the request as soon as 
possible, but in any event within 30 days.



Sec. 39.503  How can a school use contingency funds?

    Contingency funds can be used only for education services and 
programs, including repair of educational facilities.



Sec. 39.504  May schools carry over contingency funds to a subsequent

fiscal year?

    Bureau-operated schools may carry over funds to the next fiscal 
year.



Sec. 39.505  What are the reporting requirements for the use of the

contingency fund?

    (a) At the end of each fiscal year, Bureau/OIEP shall send an annual 
report to Congress detailing how the Contingency Funds were used during 
the previous fiscal year.
    (b) By October 1 of each year, the Bureau must send a letter to each 
school

[[Page 190]]

and each tribe operating a school listing the allotments from the 
Contingency Fund.



                Subpart F_School Board Training Expenses

    Source: 70 FR 22205, Apr. 28, 2005, unless otherwise noted.



Sec. 39.600  Are Bureau-operated school board expenses funded by

ISEP limited?

    Yes. Bureau-operated schools are limited to $8,000 or one percent 
(1%) of ISEP allotted funds (not to exceed $15,000).



Sec. 39.601  Is school board training for Bureau-operated schools 

considered a school board expense subject to the limitation?

    No, school board training for Bureau-operated schools is not 
considered a school board expense subject to the limitation in Sec. 
39.600.



Sec. 39.603  Is school board training required for all Bureau-funded

schools?

    Yes. Any new member of a local school board or an agency school 
board must complete 40 hours of training within one year of appointment, 
provided that such training is recommended, but is not required, for a 
tribal governing body that serves in the capacity of a school board.



Sec. 39.604  Is there a separate weight for school board training at

Bureau-operated schools?

    Yes. There is an ISEP weight not to exceed 1.2 WSUs to cover school 
board training and expenses at Bureau-operated schools.



                    Subpart G_Student Transportation

    Source: 70 FR 22205, Apr. 28, 2005, unless otherwise noted.



Sec. 39.700  What is the purpose of this subpart?

    (a) This subpart covers how transportation mileage and funds for 
schools are calculated under the ISEP transportation program. The 
program funds transportation of students from home to school and return.
    (b) To use this part effectively, a school should:
    (1) Determine its eligibility for funds using the provisions of 
Sec. Sec. 39.702 through 39.708;
    (2) Calculate its transportation miles using the provisions of 
Sec. Sec. 39.710 and 39.711; and
    (3) Submit the required reports as required by Sec. Sec. 39.721 and 
39.722.



Sec. 39.701  What definitions apply to terms used in this subpart?

    ISEP means the Indian School Equalization Program.
    Transportation mileage count week means the last full week in 
September.
    Unimproved roads means unengineered earth roads that do not have 
adequate gravel or other aggregate surface materials applied and do not 
have drainage ditches or shoulders.

                          Eligibility for Funds



Sec. 39.702  Can a school receive funds to transport residential 

students using commercial transportation?

    A school transporting students by commercial bus, train, airplane, 
or other commercial modes of transportation will be funded at the cost 
of the commercial ticket for:
    (a) The trip from home to school in the Fall;
    (b) The round-trip return home at Christmas; and
    (c) The return trip home at the end of the school year.



Sec. 39.703  What ground transportation costs are covered for 

students traveling by commercial transportation?

    This section applies only if a school transports residential 
students by commercial bus, train or airplane from home to school. The 
school may receive funds for the ground miles that the school has to 
drive to deliver the students or their luggage from the bus, train, or 
plane terminal to the school.



Sec. 39.704  Are schools eligible to receive chaperone expenses to 

transport residential students?

    Yes. Schools may receive funds for actual chaperone expenses, 
excluding

[[Page 191]]

salaries, during the transportation of students to and from home at the 
beginning and end of the school year and at Christmas.



Sec. 39.705  Are schools eligible for transportation funds to 

transport special education students?

    Yes. A school that transports a special education student from home 
to a treatment center and back to home on a daily basis as required by 
the student's Individual Education Plan may count those miles for day 
student funding.



Sec. 39.706  Are peripheral dormitories eligible for day transportation

funds?

    Yes. If the peripheral dormitory is required to transport dormitory 
students to the public school, the dormitory may count those miles 
driven transporting students to the public school for day transportation 
funding.



Sec. 39.707  Which student transportation expenses are currently not 

eligible for Student Transportation Funding?

    (a) The following transportation expenses are currently not eligible 
for transportation funding, however the data will be collected under the 
provisions in this subpart:
    (1) Fuel and maintenance runs;
    (2) Transportation home for medical or other emergencies;
    (3) Transportation from school to treatment or special services 
programs;
    (4) Transportation to after-school programs; and
    (5) Transportation for day and boarding school students to attend 
instructional programs less than full-time at locations other than the 
school reporting the mileage.
    (b) Examples of after-school programs covered by paragraph (a)(4) of 
this section include:
    (1) Athletics;
    (2) Band;
    (3) Detention;
    (4) Tutoring, study hall and special classes; and
    (5) Extra-curricular activities such as arts and crafts.



Sec. 39.708  Are miles generated by non-ISEP eligible students eligible

for transportation funding?

    No. Only miles generated by ISEP-eligible students enrolled in and 
attending a school are eligible for student transportation funding.

                    Calculating Transportation Miles



Sec. 39.710  How does a school calculate annual bus transportation 

miles for day students?

    To calculate the total annual bus transportation miles for day 
students, a school must use the appropriate formula from this section. 
In the formulas, Tu = Miles driven on Tuesday of the transportation 
mileage count week, W = Miles driven on Wednesday of the transportation 
mileage count week, and Th = Miles driven on Thursday of the 
transportation mileage count week.
    (a) For ISEP-eligible day students whose route is entirely over 
improved roads, calculate miles using the following formula:
[GRAPHIC] [TIFF OMITTED] TR28AP05.087

    (b) For ISEP-eligible day students whose route is partly over 
unimproved roads, calculate miles using the following three steps.
    (1) Step 1. Apply the following formula to miles driven over 
improved roads only:
[GRAPHIC] [TIFF OMITTED] TR28AP05.088

    (2) Step 2. Apply the following formula to miles driven over 
unimproved roads only:
[GRAPHIC] [TIFF OMITTED] TR28AP05.089

    (3) Step 3. Add together the sums from steps 1 and 2 to obtain the 
total annual transportation miles.

[[Page 192]]



Sec. 39.711  How does a school calculate annual bus transportation 

miles for residential students?

    To calculate the total annual transportation miles for residential 
students, a school must use the procedures in paragraph (b) of this 
section.
    (a) The school can receive funds for the following trips:
    (1) Transportation to the school at the start of the school year;
    (2) Round trip home at Christmas; and
    (3) Return trip to home at the end of the school year.
    (b) To calculate the actual miles driven to transport students from 
home to school at the start of the school year, add together the miles 
driven for all buses used to transport students from their homes to the 
school. If a school transports students over unimproved roads, the 
school must separate the number of miles driven for each bus into 
improved miles and unimproved miles. The number of miles driven is the 
sum of:
    (1) The number of miles driven on improved roads; and
    (2) The number of miles driven on unimproved roads multiplied by 
1.2.
    (c) The annual miles driven for each school is the sum of the 
mileage from paragraphs (b)(1) and (b)(2) of this section multiplied by 
4.

                         Reporting Requirements



Sec. 39.720  Why are there different reporting requirements for 

transportation data?

    In order to construct an actual cost data base, residential and day 
schools must report data required by Sec. Sec. 39.721 and 39.722.



Sec. 39.721  What transportation information must off-reservation

boarding schools report?

    (a) Each off-reservation boarding school that provides 
transportation must report annually the information required by this 
section. The report must:
    (1) Be submitted to OIEP by August 1 and cover the preceding school 
year;
    (2) Include a Charter/Commercial and Air Transportation Form signed 
and certified as complete and accurate by the School Principal and the 
appropriate ELO; and
    (3) Include the information required by paragraph (b) of this 
section.
    (b) Each annual transportation report must include the following 
information:
    (1) Fixed vehicle costs, including: the number and type of buses, 
passenger size, and local GSA rental rate and duration of GSA contract;
    (2) Variable vehicle costs;
    (3) Mileage traveled to transport students to and from school on 
school days, to sites of special services, and to extra-curricular 
activities;
    (4) Medical trips;
    (5) Maintenance and Service costs; and
    (6) Driver costs;
    (7) All expenses referred to in Sec. 39.707.



Sec. 39.722  What transportation information must day schools,

on-reservation boarding schools and peripheral dormitory schools 
report?

    (a) By August 1 of each year, all schools and peripheral dorms that 
provide transportation must submit a report that covers the preceding 
year. This report must include:
    (1) Fixed vehicle costs and other costs, including: the number and 
type of buses, passenger size, and local GSA rental rate and duration of 
GSA contract;
    (2) Variable vehicle costs;
    (3) Mileage traveled to transport students to and from school on 
school days, to sites of special services, and to extra-curricular 
activities;
    (4) Mileage driven for student medical trips;
    (5) Costs of vehicle maintenance and service cost, including cost of 
miles driven to obtain maintenance and service;
    (6) Driver costs; and
    (7) All expenses referred to in Sec. 39.707.
    (b) In addition, all day schools and on-reservation boarding schools 
must include in their report a Day Student Transportation Form signed 
and certified as complete and accurate by the School Principal and the 
appropriate ELO.

[[Page 193]]

                        Miscellaneous Provisions



Sec. 39.730  Which standards must student transportation vehicles meet?

    All vehicles used by schools to transport students must meet or 
exceed all appropriate Federal motor vehicle safety standards and State 
or Tribal motor vehicle safety standards. The Bureau will not fund 
transportation mileage and costs incurred transporting students in 
vehicles that do not meet these standards.



Sec. 39.731  Can transportation time be used as instruction time for 

day school students?

    No. Transportation time cannot be used as instruction time for day 
school students in meeting the minimum required hours for academic 
funding.



Sec. 39.732  How does OIEP allocate transportation funds to schools?

    OIEP allocates transportation funds based on the types of 
transportation programs that the school provides. To allocate 
transportation funds OIEP:
    (a) Multiplies the one-way commercial costs for all schools by four 
to identify the total commercial costs for all schools;
    (b) Subtracts the commercial cost total from the appropriated 
transportation funds and allocates the balance of the transportation 
funds to each school with a per-mile rate;
    (c) Divides the balance of funds by the sum of the annual day miles 
and the annual residential miles to identify a per-mile rate;
    (d) For day transportation, multiplies the per-mile rate times the 
annual day miles for each school; and
    (e) For residential transportation, multiplies the per mile rate 
times the annual transportation miles for each school.



  Subpart H_Determining the Amount Necessary To Sustain an Academic or 
                           Residential Program

    Source: 70 FR 22205, Apr. 28, 2005, unless otherwise noted.



Sec. 39.801  What is the formula to determine the amount necessary 

to sustain a school's academic or residential program?

    (a) The Secretary's formula to determine the minimum annual amount 
necessary to sustain a Bureau-funded school's academic or residential 
program is as follows:

Student Unit Value x Weighted Student Unit = Annual Minimum Amount per 
student.

    (b) Sections 39.802 through 39.807 explain the derivation of the 
formula in paragraph (a) of this section.
    (c) If the annual minimum amount calculated under this section and 
Sec. Sec. 39.802 through 39.807 is not fully funded, OIEP will pro rate 
funds distributed to schools using the Indian School Equalization 
Formula.



Sec. 39.802  What is the student unit value in the formula?

    The student unit value is the dollar value applied to each student 
in an academic or residential program. There are two types of student 
unit values: the student unit instructional value (SUIV) and the student 
unit residential value (SURV).
    (a) The student unit instructional value (SUIV) applies to a student 
enrolled in an instructional program. It is an annually established 
ratio of 1.0 that represents a student in grades 4 through 6 of a 
typical non-residential program.
    (b) The student unit residential value (SURV) applies to a 
residential student. It is an annually established ratio of 1.0 that 
represents a student in grades 4 through 6 of a typical residential 
program.



Sec. 39.803  What is a weighted student unit in the formula?

    A weighted student unit is an adjusted ratio using factors in the 
Indian School Equalization Formula to establish educational priorities 
and to provide for the unique needs of specific students, such as:
    (a) Students in grades kindergarten through 3 or grades 7 through 
12;
    (b) Special education students;
    (c) Gifted and talented students;
    (d) Distance education students;

[[Page 194]]

    (e) Vocational and industrial education students;
    (f) Native Language Instruction students;
    (g) Small schools;
    (h) Personnel costs;
    (i) Alternative schooling; and
    (j) Early Childhood Education programs.



Sec. 39.804  How is the SUIV calculated?

    The SUIV is calculated by the following 5-step process:
    (a) Step 1. Use the adjusted national average current expenditures 
(ANACE) of public and private schools determined by data from the U.S. 
Department of Education-National Center of Education Statistics (NCES) 
for the last school year for which data is available.
    (b) Step 2. Subtract the average specific Federal share per student 
(title I part A and IDEA part B) of the total revenue for Bureau-funded 
elementary and secondary schools for the last school year for which data 
is available as reported by NCES (15%).
    (c) Step 3. Subtract the administrative cost grant/agency area 
technical services revenue per student as a percentage of the total 
revenue (current expenditures) of Bureau-funded schools from the last 
year data is available.
    (d) Step 4. Subtract the day transportation revenue per student as a 
percentage of the total revenue (current revenue) Bureau-funded schools 
for the last school year for which data is available.
    (e) Step 5. Add Johnson O'Malley funding. (See the table, in Sec. 
39.805)



Sec. 39.805  What was the student unit for instruction value (SUIV) for

the school year 1999-2000?

    The process described in Sec. 39.804 is illustrated in the table 
below, using figures for the 1999-2000 school year:

Step 1..........................................       $8,030  ANACE.
Step 2..........................................        -1205  Average specific Federal share of total revenue
                                                                for Bureau-funded schools.
Step 3..........................................         -993  Cost grant/technical services revenue as a
                                                                percentage total revenue.
Step 4..........................................         -658  Transportation revenue as a percentage of the
                                                                total revenue.
Step 5..........................................           85  Johnson O'Malley funding.
�������������������������������������������������
 



Sec. 39.806  How is the SURV calculated?

    (a) The SURV is the adjusted national average current expenditures 
for residential schools (ANACER) of public and private residential 
schools. This average is determined using data from the Association of 
Boarding Schools.
    (b) Applying the procedure in paragraph (a) of this section, the 
SURV for school year 1999-2000 was $11,000.



Sec. 39.807  How will the Student Unit Value be adjusted annually?

    (a) The student unit instructional value (SUIV) and the student unit 
residential value (SURV) will be adjusted annually to derive the current 
year Student Unit Value (SUV) by dividing the calculated SUIV and the 
SURV into two parts and adjusting each one as shown in this section.
    (1) The first part consists of 85 percent of the calculated SUIV and 
the SURV. OIEP will adjust this portion using the personnel cost of 
living increase of the Department of Defense schools for each year.
    (2) The second part consists of 15 percent the calculated SUIV and 
the SURV. OIEP will adjust this portion using the Consumer Price Index-
Urban of the Department of Labor.
    (b) If the student unit value amount is not fully funded, the 
schools will receive their pro rata share using the Indian School 
Equalization Formula.

[[Page 195]]



Sec. 39.808  What definitions apply to this subpart?

    Adjusted National Average Current Expenditure [ANACE] means the 
actual current expenditures for pupils in fall enrollment in public 
elementary and secondary schools for the last school year for which data 
is available. These expenditures are adjusted annually to reflect 
current year expenditures of federally financed schools' cost of day and 
residential programs.
    Current expenditures means expenses related to classroom 
instruction, classroom supplies, administration, support services-
students and other support services and operations. Current expenditures 
do not include facility operations and maintenance, buildings and 
improvements, furniture, equipment, vehicles, student activities and 
debt retirement.



Sec. 39.809  Information collection.

    Notwithstanding any other provision of law, no person is required to 
respond to, nor shall any person be subject to a penalty for failure to 
comply with, a collection of information subject to the requirements of 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), 
unless that collection of information displays a currently valid Office 
of Management and Budget (OMB) Control Number. This part involves 
collections of information subject to the PRA in Sec. Sec. 39.410 and 
39.502. These collections have been approved by OMB under control 
numbers 1076-0122, 1076-0134, and 1076-0163.



           Subpart I_Interim Maintenance and Minor Repair Fund

    Source: 44 FR 61864, Oct. 26, 1979, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982. Redesignated at 70 FR 33702, 
June 9, 2005.



Sec. 39.900  Establishment and funding of an Interim Maintenance and

Minor Repair Fund.

    There is established in the Division of Facilities Management a 
separate temporary fund entitled the Interim Maintenance and Minor 
Repair Fund. The Assistant Secretary shall cause the distribution of an 
amount of $1 million, under the FY 1980 Appropriation for the Bureau, 
from budget activity 3500, ``General Management and Facilities 
Operation'', to the direct use of schools, and shall create an 
appropriate account or subaccount for the Interim Maintenance and Minor 
Repair Fund and credit these funds thereto.



Sec. 39.901  Conditions for distribution.

    Funds from the Interim Maintenance and Minor Repair Fund shall be 
distributed to Bureau operated and funded schools and shall be 
separately earmarked in local school financial plans solely for 
expenditure at the discretion of the school supervisor for cost of 
school facility maintenance and minor repair. These funds shall be used 
to meet immediate minor repair and maintenance needs.



Sec. 39.902  Allocation.

    (a) Interim Maintenance and Minor Repair funds shall be allocated to 
all Bureau operated and contract schools based on the number of square 
feet of floor space used for that school's educational program, for 
student residence and for support facilities. Staff quarters shall be 
specifically excluded from the computation.
    (b) Square footage figures used in determining school allocations 
shall be taken from the facilities inventory maintained by the Division 
of Facilities Engineering.
    (c) In those cases, such as contract schools, where square footage 
figures are not now available, it shall be the responsibility of the 
Bureau's Division of Facilities Engineering to correct the information.
    (d) Schools in Alaska shall receive a 25% cost adjustment increase 
in the computation of their allocation.



Sec. 39.903  Use of funds.

    Funds allocated under this provision for maintenance and minor 
repair shall be used for no other purpose.



Sec. 39.904  Limitations.

    Nothing in this provision shall be interpreted as relieving the 
Bureau branch of Facilities Management or its field offices of any 
responsibility for continuing to provide maintenance and repair service 
to schools through existing procedures.

[[Page 196]]



                  Subpart J_Administrative Cost Formula

    Source: 56 FR 35795, July 26, 1991, unless otherwise noted. 
Redesignated at 70 FR 33702, June 9, 2005.



Sec. 39.1000  Purpose and scope.

    The purpose of this subpart is to provide funds at the agency and 
area education offices for FY 1991 and future years for administration 
of all Bureau of Indian Affairs education functions, including but not 
limited to school operations, continuing education, early childhood 
education, post-secondary education and Johnson-O'Malley Programs.



Sec. 39.1001  Definitions.

    (a) Agency Education Office means a field office of the Office of 
Indian Education Programs providing administrative direction and 
supervision to one or more Bureau-operated schools as well as being 
responsible for all other education functions serving tribes within that 
agency's jurisdiction.
    (b) Area Education Office means a field office of the Office of 
Indian Education Programs responsible for all education functions 
serving tribes not serviced by an agency education office an in some 
cases providing administrative direction to one or more off-reservation 
boarding schools not under an agency education office.



Sec. 39.1002  Allotment of education administrative funds.

    The total annual budget for agencies/areas shall be allotted to the 
Director and through him/her to agency and area education offices. This 
total budget shall be distributed to the various agency and area 
education offices as follows:
    (a) Each agency or area education office as defined above shall 
receive a base amount of $50,000 for basic administrative costs; and
    (b) Each agency or area education office as defined above shall 
receive an amount under these funds equal to two percent of the total 
higher education, Johnson-O'Malley and adult education funds 
administered by each office, except that the Navajo Agencies are 
restricted to a maximum of $50,000 for administering the Johnson-
O'Malley and higher education programs; and
    (c) Eighty percent of the remaining funds shall be distributed 
proportionately based on the number of schools operated under the 
jurisdiction of each agency or area education office, with Bureau-
operated schools counting as 1 and contract/grant schools counting as 
0.6; and
    (d) The remaining twenty percent shall be distributed 
proportionately based on the total weighted student units generated by 
all schools under the jurisdiction of each agency or area education 
office.



Sec. 39.1003  Allotment exception for FY 1991.

    For FY 1991 only, the Director may reserve an amount equal to no 
more than one half of the funds received in FY 1990 by those offices to 
be closed in FY 1991 to cover severance pay costs, lump sum leave 
payments and relocation costs for those individuals affected by the 
closures. Any balance uncommitted by March 31, 1991, shall be 
distributed in accordance with the formula in Sec. 39.122.



                   Subpart K_Pre-kindergarten Programs

    Source: 44 FR 61864, Oct. 26, 1979, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982. Redesignated at 70 FR 33702, 
June 9, 2005.



Sec. 39.1100  Interim fiscal year 1980 and fiscal year 1981 funding 

for pre-kindergarten programs previously funded by the Bureau.

    Those schools having pre-kindergarten programs funded fully or in 
part from Bureau education funds in fiscal year 1979 shall be funded 
from Bureau education funds by the Director in fiscal year 1980 and 
fiscal year 1981 at their fiscal year 1979 Bureau education funding 
levels. The fiscal year 1979 pre-kindergarten Bureau funding amount for 
each Bureau funded school shall be deducted from the school's fiscal 
year 1979 Bureau Education Budget amount

[[Page 197]]

prior to application of the phase-in provision.

[44 FR 61864, Oct. 26, 1979. Redesignated at 47 FR 13327, Mar. 30, 1982. 
Redesignated and amended at 70 FR 33702, June 9, 2005]



Sec. 39.1101  Addition of pre-kindergarten as a weight factor to the 

Indian School Equalization Formula in fiscal year 1982.

    The Director, in consultation with the tribes and school boards, 
shall determine appropriate weight factors needed to include pre-
kindergarten programs in the Indian School Equalization Formula in 
fiscal year 1982. Based on a needs assessment, to be completed by 
January 1, 1980, pre-kindergarten programs shall be included in the 
Bureau's education request for fiscal year 1982.



        Subpart L_Contract School Operation and Maintenance Fund

    Source: 44 FR 61864, Oct. 26, 1979, unless otherwise noted. 
Redesignated at 70 FR 33702, June 9, 2005.



Sec. 39.1200  Definitions.

    Contract school operation and maintenance costs for fiscal year 1979 
means the sum of costs for custodial salaries and fringe benefits, 
related supplies and equipment and equipment repair, insurance, and 
school operation utilities costs, where such costs are not paid by the 
Division of Facilities Management or other noneducation Bureau sources.



Sec. 39.1201  Establishment of an interim fiscal year 1980 operation 

and maintenance fund for contract schools.

    There is established in the Division of Facilities Management a 
separate fund entitled the Contract School Operation and Maintenance 
Fund. The Secretary shall cause the distribution of an amount of $2.5 
million, under the fiscal year 1980 appropriation for the Bureau, from 
budget activity 3500. ``General Management and Facilities Operations'', 
to the schools through this fund and shall create an appropriate account 
or subaccount for the Contract School Operation and Maintenance Fund.



Sec. 39.1202  Distribution of funds.

    (a) Each contract school shall receive in fiscal year 1980 a portion 
of the Contract School Operation and Maintenance Fund determined by the 
percentage share which that school's fiscal year 1979 operation and 
maintenance cost represents in the total fiscal year 1979 operation and 
maintenance cost for all such schools.
    (b) To be eligible for these funds, a contract school shall submit a 
detailed report of actual operation and maintenance costs for fiscal 
year 1979 to the Director by November 23, 1979. These cost figures will 
be subject to verification by the Director to assure their accuracy 
prior to the allotment of any funds under this subpart.
    (c) Any funds generated under this subpart shall be included in the 
computation of the phase-in amount if supplemental operation and 
maintenance funds were included in a school's fiscal year 1979 3100 
contract funds.

[44 FR 61864, Oct. 26, 1979, unless otherwise noted. Redesignated at 47 
FR 13327, Mar. 30, 1982. Redesignated and amended at 70 FR 33702, June 
9, 2005]



Sec. 39.1203  Future consideration of contract school operation and

maintenance funding.

    The Assistant Secretary shall arrange for full funding for operation 
and maintenance of contract schools by fiscal year 1981.



PART 40_ADMINISTRATION OF EDUCATIONAL LOANS, GRANTS AND OTHER 

ASSISTANCE FOR HIGHER EDUCATION--Table of Contents




Sec.
40.1 Appropriations for loans or grants.
40.2 Working scholarships.
40.3 Applications.
40.4 Security.
40.5 Repayments.

    Authority: Sec. 11, 48 Stat. 986; 25 U.S.C. 471.

    Source: 22 FR 10533, Dec. 24, 1957, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 40.1  Appropriations for loans or grants.

    Funds appropriated by Congress for the education of Indians may be 
used

[[Page 198]]

for making educational loans and grants to aid students of one-fourth or 
more degree of Indian blood attending accredited institutions of higher 
education or other accredited schools offering vocational and technical 
training who reside within the exterior boundaries of Indian 
reservations under the jurisdiction of the Bureau of Indian Affairs or 
on trust or restricted lands under the jurisdiction of the Bureau of 
Indian Affairs. Such educational loans and grants may be made also to 
students of one-fourth or more degree of Indian blood who reside near 
the reservation when a denial of such loans or grants would have a 
direct effect upon Bureau programs within the reservation. After 
students meeting these eligibility requirements are taken care of, 
Indian students who do not meet the residency requirements but are 
otherwise eligible may be considered.

[33 FR 9708, July 4, 1968. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 40.2  Working scholarships.

    Working scholarships may be granted to Indians who wish to earn 
their board and room by part-time work at Federal boarding schools that 
are located near a college, trade, or vocational school.



Sec. 40.3  Applications.

    Applications for educational loans, grants, and working scholarships 
shall be submitted through the superintendent or officer in charge of 
the agency at which the applicant is enrolled in the manner prescribed 
by the Commissioner.



Sec. 40.4  Security.

    If a borrower or cosigner has security to offer for an educational 
loan it must be given in an amount adequate to protect the loan.



Sec. 40.5  Repayments.

    Repayment schedules for educational loans may provide not to exceed 
two years for repayment for each year in school.



PART 41_GRANTS TO TRIBALLY CONTROLLED COMMUNITY COLLEGES AND NAVAJO

COMMUNITY COLLEGE--Table of Contents




            Subpart A_Tribally Controlled Community Colleges

Sec.
41.1 Purpose.
41.2 Scope.
41.3 Definitions.
41.4 Eligible recipients.
41.5 Eligible activities.
41.6 HHS participation.
41.7 Feasibility studies.
41.8 Grants.
41.9 Reports.
41.10 Technical assistance.
41.11 General provisions.
41.12 Annual budget.
41.13 Criminal penalities.

                   Subpart B_Navajo Community College

41.20 Policy.
41.21 Scope.
41.22 Definitions.
41.23 Eligible activities.
41.24 Grants.
41.25 Reports.
41.26 Technical assistance.
41.27 General provisions.
41.28 Criminal penalties.

    Authority: Secs. 114 and 203(a), Pub. L. 95-471, 25 U.S.C. 1815, 25 
U.S.C. 640c-1(c).

    Source: 44 FR 67042, Nov. 21, 1979, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



            Subpart A_Tribally Controlled Community Colleges



Sec. 41.1  Purpose.

    The policy of the Department of the Interior is to support and 
encourage the establishment, operation, and improvement of tribally 
controlled community colleges to ensure continued and expanded 
educational opportunities for Indian students. The regulations in this 
subpart prescribe procedures for providing financial and technical 
assistance to this end under the Tribally Controlled Community College 
Assistance Act of 1978 (Pub. L. 95-471, 92 Stat. 1325, 25 U.S.C. 1801 et 
seq.).



Sec. 41.2  Scope.

    The regulations in this subpart are applicable to the provision of 
financial

[[Page 199]]

and technical assistance to Community Colleges under title I of the Act. 
They do not apply to the provision of assistance to Navajo Community 
College. Subpart B of this part applies to assistance to Navajo 
Community College under title II of the Act.



Sec. 41.3  Definitions.

    As used in this subpart A:
    (a) Academic term means a semester, trimester, or other such period 
(not less than six (6) weeks in duration) into which a community college 
normally subdivides its academic year, but does not include a summer 
term.
    (b) Academic year means a twelve month period established by a 
community college and approved by the Director of Education as the 
annual period for the operation of the college's education programs.
    (c) The Act means the Tribally Controlled Community College 
Assistance Act of 1978 (Pub. L. 95-471, 92 Stat. 1325, 25 U.S.C. 1801 et 
seq.).
    (d) Assistant Secretary means the Assistant Secretary for Indian 
Affairs of the Department of the Interior, or his/her duly authorized 
representative.
    (e) Community College means an institution of higher education which 
(1) is formally controlled or operated and managed by the governing body 
of an Indian Tribe or by the governing bodies of two or more Indian 
Tribes, or (2) is established or is otherwise sanctioned or chartered by 
resolution, ordinance, or other official action (which is still in full 
force and effect) of such governing body or bodies. However, for 
purposes of this definition, only one such institution shall be 
recognized with respect to any one Tribe. A Community College that meets 
the requirements of this definition with respect to more than one Tribe 
must meet such requirements with respect to at least one Tribe that has 
no other currently formally controlled, operated and managed, 
established, sanctioned, or chartered Community College.
    (f) Director of Education means the Director of the Office of Indian 
Education Programs of the Bureau of Indian Affairs, or his/her duly 
authorized representative.
    (g) Full time equivalent or FTE, means the number of Indian students 
(1) enrolled full-time for an entire academic term at a community 
college, calculated on the basis of registrations as in effect at the 
conclusion of the sixth week of an academic term, plus (2) the full-time 
equivalent of the number of other Indian students who are enrolled part-
time for an entire academic term at a community college (determined on 
the basis of the quotient of the sum of credit hours for which all such 
part-time students are registered during such academic term, divided by 
twelve (12)), calculated on the basis of registrations as in effect at 
the conclusion of the sixth week of an academic term. The formula for 
calculating the Indian FTE for an academic term is expressed 
mathematically as FTE=FT+PTCR/12 where FT is the number of full time 
Indian students (those carrying 12 or more credit hours at the end of 
the sixth week of the academic term) and PTCR is the number of credit 
hours for which part-time Indian students are registered at the end of 
the sixth week of an academic term.
    (h) Indian means a person who is a member of an Indian Tribe and is 
eligible to receive services from the Secretary of the Interior because 
of his/her status as an Indian.
    (i) Indian Tribe means an Indian tribe, band, nation, pueblo, 
rancheria, or other organized group or community, including any Alaskan 
Native Village or regional or village corporation as defined in or 
established under the Alaska Native Claims Settlement Act, which is 
recognized as eligible for the special programs and services provided by 
the United States to Indians because of their status as Indians.
    (j) Institution of higher education as defined in Pub. L. 95-471 
(incorporating in part 1201 of the Higher Education Act of 1965), means 
an educational institution in any State which
    (1) Admits as regular students only persons having a certificate of 
graduation from a school providing secondary education, or the 
recognized equivalent of such a certificate,
    (2) Provides an educational program for which it awards a bachelor's 
degree or provides not less than a two-year program which is acceptable 
for full credit toward such a degree,

[[Page 200]]

    (3) Is a public or other nonprofit institution, and
    (4) Is accredited by a nationally recognized accrediting agency or 
association or, if not so accredited,
    (A) Is an institution with respect to which the Commissioner of 
Education has determined that there is satisfactory assurance, 
considering the resources available to the institution, the period of 
time, if any, during which it has operated, the effort it is making to 
meet accreditation standards and the purpose for which this 
determination is being made, that the institution will meet the 
accreditation standards of such an agency or association within a 
reasonable time, or
    (B) Is an institution whose credits are accepted, on transfer, by 
not less than three institutions which are so accredited, for credit on 
the same basis as if transferred from an institution so accredited.

Such term also includes any school which provides not less than a one-
year program of training to prepare students for gainful employment in a 
recognized occupation and which meets the provisions of clauses (1), 
(2), (3), and (4). Such term also includes a public or nonprofit private 
educational institution in any State which, in lieu of the requirement 
in clause (1), admits as regular students persons who are beyond the age 
of compulsory school attendance in the State in which the institution is 
located and who have the ability to benefit from the training offered by 
the institution.
    (k) National Indian Organization means any organization of Indians, 
found by the Director of Education to be nationally based, representing 
a substantial Indian constituency, and expert in the field of Indian 
education. Notice of such findings shall be published in the Federal 
Register with an opportunity for comment from the public and no such 
finding shall be effective earlier than 30 days after publication.
    (l) Operating expenses of education programs means the obligations 
and expenditures of a community college for post-secondary activities, 
including administration, instruction, attendance, health and other 
student services, operation, maintenance and repair of plant, fixed 
charges, and other related expenses, but not including expenditures for 
the acquisition or construction of academic facilities. (The term 
academic facilities means structures suitable for use as classrooms, 
laboratories, libraries, and related facilities necessary or appropriate 
for instruction of students, or for research, or for administration of 
the educational or research programs of an institution of higher 
education or as dormitories or student services buildings, and 
maintenance, storage, support, or utility facilities essential to 
operation of the foregoing facilities.)
    (m) Part-time means registered for less than twelve (12) credit 
hours for an academic term; full-time means registered for twelve (12) 
or more credit hours for an academic term.
    (n) Unused portion of received funds means the amount of financial 
assistance provided under this subpart to a Community College for an 
academic year which has not been obligated or expended by the Community 
College by July 1 of that academic year.



Sec. 41.4  Eligible recipients.

    Financial assistance under this subpart shall be available only to a 
Community College which:
    (a) Is governed by a board of directors, regents, or trustees, a 
majority of whom are Indians;
    (b) Demonstrates its adherence to stated goals, a philosophy, or a 
plan of operation which is directed to meet the needs of Indians, and 
has formally adopted, in writing, such goals, philosophy, or plan of 
operation, which may be in the form of a constitution, by-laws, or 
policy statement of the Community College;
    (c) If in operation for more than one year, has students a majority 
of whom are Indian; and
    (d) Upon completion of a feasibility study, receives a positive 
determination, and;
    (e) Is not in violation of Sec. 41.11 of this subpart.



Sec. 41.5  Eligible activities.

    Financial assistance under this subpart shall be available to defray 
only the operating expenses of education

[[Page 201]]

programs of Community Colleges. Financial assistance under this subpart 
shall not be used for religious worship or sectarian instruction, but 
nothing in this subpart shall be construed as barring instruction in 
comparative religions or cultures or in languages of Indian tribes.



Sec. 41.6  HHS participation.

    The Assistant Secretary for Indian Affairs is authorized to enter 
into an agreement with the Assistant Secretary for Education, Department 
of Health and Human Services, and to revise such agreement as necessary, 
to assist the Director of Education in the development of plans, 
procedures, and criteria for feasibility studies under this subpart, and 
to provide the Director with technical assistance in conducting such 
feasibility studies, including determinations as to the reasonable 
number of students required to support a Community College.

[44 FR 67042, Nov. 21, 1979. Redesignated at 47 FR 13327, Mar. 30, 1982; 
48 FR 13414, Mar. 31, 1983]



Sec. 41.7  Feasibility studies.

    (a) Grants under Sec. 41.8 of this subpart may be made to a 
Community College only after a positive determination of feasibility as 
provided in this section.
    (b) Within thirty (30) days of receiving a resolution or other duly 
authorized request from the governing body of one or more Indian Tribes, 
the Director of Education shall initiate a feasibility study to 
determine whether there is justification to encourage and maintain a 
Community College for such tribe or tribes. The feasibility study shall 
give consideration to the following factors:
    (1) Financial feasibility based upon potential enrollment;
    (2) Evidence of low tribal levels of tribal matriculation in and 
graduation from postsecondary educational institutions;
    (3) Tribal, linguistics, or cultural differences;
    (4) Isolation;
    (5) Presence of alternate education sources;
    (6) Proposed curriculum;
    (7) The benefits of continued and expanded educational opportunities 
for Indian students.
    (c) The Director of Education will issue detailed guidelines for 
conducting and analyzing the feasibility studies.
    (d) Feasibility studies under this section shall be conducted in 
consultation with the tribal governing body or bodies involved or their 
designated representatives. Each feasibility study shall be completed 
and filed by the Director of Education within sixty (60) days after the 
feasibility study has been initiated. The study shall be filed with (1) 
the Assistant Secretary, (2) the tribal governing body or bodies 
requesting the studies, and (3) with the board of directors, regents, or 
trustees of the Community College, if already established.
    (e) In the case of any feasibility study which results in a negative 
determination by the Director of Education, a Tribe requesting the study 
may within thirty (30) days of receipt of the study or of notice of such 
determination file a notice of appeal with the Assistant Secretary. 
Following the timely filing of a Tribe's notice of appeal, the Tribe and 
Community College shall have a right to a formal review of the 
feasibility study, including a hearing upon reasonable notice within 
sixty (60) days before the Assistant Secretary (or his/her designee, 
other than the Director of Education or any federal employee under the 
Director's supervision). At the hearing, the appealing Tribe or the 
Community College (or both) may present additional evidence or arguments 
to justify feasibility. Within thirty (30) days of the hearing, the 
Assistant Secretary shall issue a written ruling either confirming, 
modifying, or reversing the original determination. The ruling, which 
shall be final for the Department, shall be mailed or otherwise 
delivered to the appealing Tribe and the Community College within one 
week of its issuance. In any case where the original negative 
determination is not reversed, the Assistant Secretary's ruling shall 
specify the grounds for the decision and state the manner in which the 
determination related to each of the factors specified.

[[Page 202]]

    (f) A negative determination shall not prevent a Tribe from 
requesting another feasibility study, but no more than one feasibility 
study shall be requested for any given Community College per year.



Sec. 41.8  Grants.

    (a) Each Community College which has received a positive feasibility 
study determination under Sec. 41.7 of this subpart shall be entitled 
to apply for financial assistance under this subpart.
    (b) Except with respect to applications for grants for the 1979-1980 
academic year, each Community College shall make an application to the 
Director of Education before January 31, of the year preceding the 
academic year for which financial assistance is requested. Each 
application must contain the following information:
    (1) The name and address of the Community College and the names of 
the members of the governing board and the number of its members who are 
Indian;
    (2) A statement that the Community College has received a positive 
feasibility determination and the date thereof;
    (3) A written statement of the goals, philosophy, or proposed plan 
of operation sufficient to demonstrate that its education program or 
proposed program is designed to meet the needs of Indians;
    (4) In the case of a Community College which has been in operation 
for more than one year, a statement of the total number of FTE Indian 
students and the total number of all FTE students;
    (5) If the Community College has not yet begun operations, a 
statement of expected enrollment, including the total number of FTE 
students and the number of FTE Indian students;
    (6) The name and address of the Indian Tribe or Tribes which control 
or operate and manage, or have established, sanctioned, or chartered the 
Community College, and a statement as to which of those Tribes have not 
done so with respect to any other Community College;
    (7) A curriculum, which may be in the form of a college catalog or 
like publication;
    (8) A proposed budget, showing total expected operating expenses of 
education programs and expected revenues from all sources for the 
academic year to which the information applies;
    (9) An assurance that the Community College will not deny admission 
to any Indian student because that student is not a member of a specific 
tribe or because such student is a member of a specific tribe, and will 
comply with the requirements set forth in Sec. 41.11 of this subpart 
together with any request and justification for a specific waiver of any 
requirement of 25 CFR part 276 which the Community College believes to 
be inappropriate;
    (10) Certification by the chief executive officer of the Community 
College that the information on the application is complete and correct 
and that the application has been filed with the governing body or 
bodies of the Tribe or Tribes which control or have sanctioned or 
chartered it.
    (c)(1) Within thirty (30) days of receiving an application required 
under paragraph (b) of this section, the Director of Education shall 
review the application submitted by the Community College and any 
comments with respect thereto filed by the Tribe(s) or by any national 
Indian organization(s) whose assistance has been requested by the 
Community College, and make a grant award in an amount determined under 
paragraph (d) of this section to the Community College if the 
application qualifies the Community College to receive a grant.
    (2) In the case of any Community College whose application is not 
approved, the Director shall promptly send a notice of such action to 
the Community College. Such notice shall include a statement of the 
specific reasons for not approving the application and a statement 
advising the College of its right within thirty (30) days to amend or 
supplement the application on file to rectify the defect.
    (3) Final disapproval of a grant application by the Director after 
the thirty day period referred to in paragraph (c)(2) of this section, 
or a failure of the Director of Education to approve an application 
within thirty (30) days of its receipt may be appealed by a Community 
College in the same manner as

[[Page 203]]

provided in paragraphs (d) and (f) of Sec. 41.7.
    (4) A Grant award under an approved application shall be evidenced 
by a grant agreement, signed by the Director of Education, incorporating 
the application and the provisions required by Sec. 41.11.
    (d)(1) In fiscal year 1980, each Community College which qualifies 
for a grant will receive a grant for academic year 1979-80; thereafter 
each Community College which qualifies for a grant shall receive a grant 
for the academic year commencing after the date of approval of its 
application. Except as provided in paragraph (d)(3) of this section 
grants shall be in an amount equal to $4,000 multiplied by the number of 
FTE Indian students in attendance at such college during each academic 
term divided by the number of academic terms in the academic year, 
except that no such grant shall exceed the annual operating expenses of 
the education programs provided by the Community College. The 
mathematical formula for calculating the base grant is BG (Base Grant)=
[GRAPHIC] [TIFF OMITTED] TC14NO91.120


where FTE is the Indian FTE for each of the academic terms during the 
academic year calculated in conformity with Sec. 41.3(g) of this 
subpart and N is the number of academic terms in the academic year.
    (2) For the first Federal fiscal year for which funds are 
appropriated for grants under this subpart, not less than eight (8) nor 
more than fifteen (15) grants shall be approved; priority in awarding 
such grants shall be given to Community Colleges which are operating on 
October 17, 1978, and which have a history of service to the Indian 
people. (If more than fifteen (15) Community Colleges meeting these two 
(2) conditions submit applications for the first fiscal year, a further 
priority for awarding grants among them shall be given to those who 
appear to be in the best position to fulfill the purpose of the Act and 
to those whose continued existence would be threatened if they did not 
receive such a grant).
    (3) All grants under this section shall be subject to the 
availability of appropriations and the amount thereof shall be ratably 
reduced for all Community Colleges if the sums appropriated for any 
fiscal year for financial assistance under this subpart are not 
sufficient to pay the full amounts to which the eligible Community 
Colleges are otherwise entitled under paragraph (d)(1) of this section.
    (e) The Director of Education shall authorize payments to each such 
Community College in advance installments by letter of credit or 
Treasury check in an amount equal to fifty percent (50%) of the grant 
amount available for allotment to such Community College for such 
academic year under paragraph (d) of this section on or before October 
1st of such College's academic year (except for 1979-80) or the first 
day on which appropriations for the fiscal year beginning on such date 
are available for obligation by BIA whichever occurs later, based on the 
number of FTE Indian students calculated on the basis of registrations 
as in effect at the conclusion of the sixth week of the final academic 
term of the preceding academic year. On or before January 1st (or such 
other date that is the first day of the fifth month) of such College's 
academic year, payments shall be made in the form of advance 
installments to each Community College in an amount equal to seventy-
five percent (75%) of the grant amount available for allotment to such 
Community College for such academic year under paragraph (d) of this 
section, calculated on the basis of registrations at the conclusion of 
sixth week of the academic year, less the amount previously advanced for 
such academic year. On or before July 1st (or such other date that is 
the first day of the eleventh month) of each such academic year the 
balance

[[Page 204]]

of the grant amount to which each College is entitled under paragraph 
(d) of this section shall be paid to such College. In the event that 
additional sums are appropriated to which such Community Colleges are 
entitled under section 110(a) of the Act and paragraph (d) of this 
section, these amounts shall be included in such final payments.
    (f) If with respect to any academic year the amounts of financial 
assistance hereunder have been ratably reduced as provided in paragraph 
(d)(3) of this section and additional funds have not been appropriated 
to pay the full amount of such reductions on or before June 1st of such 
year, the Director of Education shall notify each Community College of 
such fact in writing, and each Community College shall report in writing 
to the Director of Education on or before July 1st of such year the 
amount of unused portion of received funds. The total of such reported 
unused portions of received funds shall be reallocated by the Director 
of Education in proportion to the amount of financial assistance to 
which each Community College is entitled under paragraph (d) but which 
has not been provided due to the ratable reductions provided for 
therein, (except that no Community College shall receive more than the 
total annual cost of the education programs provided by such College) 
and payments shall be made reflecting such reallocations on or before 
August 1st of such academic year.
    (g) If the Director of Education determines that a Community College 
has received, through mistake or fraud, payments of financial assistance 
under this subpart to which it was not entitled, the Director shall 
promptly notify the college, which may appeal the Director's 
determination under the procedures set forth in Sec. 41.7, and adjust 
the amount of payments to the college under this subpart for the same or 
subsequent academic years to compensate for such overpayments or 
otherwise attempt to recover such overpayments.
    (h) Eligibility for grants under this subpart shall not, by itself, 
bar a Community College from qualifying for or receiving financial 
assistance under any other Federal program for which it may qualify.



Sec. 41.9  Reports.

    Each Community College receiving financial assistance under this 
subpart shall provide to the Director of Education on or before December 
1st of each year a report which shall include an accounting of the 
amounts and purposes for which such financial assistance was expended 
during the preceding academic year; the annual cost of education 
programs of the Community College from all sources for such academic 
year; and a final report of the performance based upon the criteria set 
forth in the Community College's stated goals, philosophy or plan of 
operation. Upon reasonable cause, the Director of Education may extend 
the period for submitting the annual report. Each Community College 
shall in addition report to the Director of Education its FTE Indian 
student enrollment for each academic term of the academic year within 
three weeks of the date such FTE calculation is made.



Sec. 41.10  Technical assistance.

    The Director of Education shall furnish technical assistance either 
directly or through contract to any Community College requesting it. 
Such assistance shall be initiated within thirty (30) days of a 
Community College's request in writing. In any case, where the type and 
source of technical assistance is specified in the request, the 
Director, to the extent possible or feasible, shall provide the type of 
technical assistance through the source so specified. Technical 
assistance may include, but is not limited to, consulting services for 
the development of programs, plans, and feasibility studies and 
accounting, and other technical advice. In awarding of contracts for 
technical assistance, preference shall be given to an organization 
designated by the Community College to be assisted. Denials of requests 
for technical assistance under this section shall be made in writing and 
sent to the applicant within thirty (30) days of the request, together 
with a statement of the reason for denial. An appeal under this section 
may be undertaken in the same manner as in the case of negative 
determinations of feasibility under Sec. 41.7 of his subpart.

[[Page 205]]



Sec. 41.11  General provisions.

    The general requirements for grant administration in this section 
are applicable to all grants provided under this subpart to Community 
Colleges:
    (a) Services or assistance provided to Indians by Community Colleges 
aided under this subpart shall be provided in a fair and uniform manner, 
and admission to any such Community College shall not be denied to any 
Indian student because such individual is not a member of a specific 
Indian tribe or because such individual is a member of a specific Indian 
tribe.
    (b) Except as may be otherwise provided in this subpart, any 
Community College receiving financial assistance under this subpart 
shall comply with part 276 of this title, subject to any express waiver 
of specific inappropriate provisions of part 276 that may be granted by 
the Assistant Secretary after request and justification by the Community 
College.
    (c) A Community College shall have the right to appeal any adverse 
decision of the Director of Education under a grant agreement to the 
Assistant Secretary by filing written notice of appeal with the 
Assistant Secretary within thirty (30) days after the adverse decision. 
Within thirty (30) days after receiving notice of appeal, the Assistant 
Secretary shall conduct a formal hearing at which time the College may 
present evidence and argument to support its appeal. Within thirty (30) 
days of the hearing, the Assistant Secretary shall issue a written 
ruling on the appeal confirming, modifying, or reversing the Director of 
Education's decision, the Assistant Secretary shall state in detail the 
basis for his/her ruling. The ruling of the Assistant Secretary on an 
appeal shall be final for the Department of the Interior.



Sec. 41.12  Annual budget.

    Appropriations under title I of the Tribally Controlled Community 
College Assistance Act of 1978 shall be separately identified in the 
Bureau of Indian Affairs Budget Justification. Funds appropriated for 
grants under this subpart shall not be commingled with other funds 
expended by the Bureau of Indian Affairs.



Sec. 41.13  Criminal penalties.

    Persons submitting or causing to be submitted to the Bureau any 
false information in connection with any application, report, or other 
document, upon which the provision of Federal financial assistance or 
any other payment of Federal funds is based, may be subject to criminal 
prosecution under provisions such as sections 287, 371, or 1001 of title 
18, U.S. Code.



                   Subpart B_Navajo Community College



Sec. 41.20  Policy.

    It is the policy of this Department to support and encourage the 
establishment, operation, and improvement of tribally controlled 
community colleges in order to ensure continued and expanded educational 
opportunities for Indian students. The regulations in this subpart 
prescribe procedures for providing financial and technical assistance to 
this end for the Navajo Community College under the Navajo Community 
College Act, as amended (25 U.S.C. 640a-c).



Sec. 41.21  Scope.

    The regulations in this subpart are applicable to the provision of 
financial and technical assistance to Navajo Community College pursuant 
to the Navajo Community College Act of December 15, 1971 (Pub. L. 92-
189, 85 Stat. 646, 25 U.S.C. 640a-c) as amended by the Navajo Community 
College Assistance Act of 1978, title II of the Tribally Controlled 
Community College Assistance Act of 1978 (Pub. L. 95-471, 92 Stat. 1325, 
1329, 25 U.S.C. 640c). Regulations applicable to Tribally Controlled 
Community Colleges other than Navajo Community College are found in 
subpart A of this part 41.



Sec. 41.22  Definitions.

    As used in this subpart:
    (a) Academic term means a semester, trimester, or other such period 
(not less than six (6) weeks in duration) into which the college 
normally subdivides its academic year, but does not include a summer 
term.

[[Page 206]]

    (b) Academic year means a twelve month period established by the 
college and approved by the Director of Education as the annual period 
for the operation of the college's education programs.
    (c) The Act means the Navajo Community College Act of December 15, 
1971 (Pub. L. 92-189, 85 Stat. 646) as amended by the Navajo Community 
College Assistance Act of 1978, (Pub. L. 95-471, title II, 92 Stat. 
1329, 25 U.S.C. 640a et seq.).
    (d) Assistant Secretary means the Assistant Secretary for Indian 
Affairs of the Department of the Interior or his/her duly authorized 
representative.
    (e) College means the institution known as Navajo Community College 
established by the Navajo Tribe.
    (f) Director of Education means the Director of the Office of Indian 
Education Programs of the Bureau of Indian Affairs, or his/her duly 
authorized representative.
    (g) Full time equivalent or FTE means the number of Indian students 
(1) enrolled full-time for an entire academic term at the College, 
calculated on the basis of registrations as in effect at the conclusion 
of the sixth week of an academic term, plus (2) the full-time equivalent 
of the number of other Indian students who are enrolled part-time for an 
entire academic term at the College (determined on the basis of the 
quotient of the sum of credit hours for which all such part-time 
students are registered during such academic term divided by (12)), 
calculated on the basis of registrations as in effect at the conclusion 
of the sixth week of an academic term. The formula for calculating the 
Indian FTE for an academic term is expressed mathematically as 
FTE=FT+PTCR/12 where FT is the number of full time Indian students 
(those carrying 12 or more credit hours at the end of the sixth week of 
the academic term) and PTCR is the number of credit hours for which 
part-time Indian students are registered at the end of the sixth week of 
an academic term.
    (h) Indian means a person who is a member of an Indian tribe and is 
eligible to receive services from the Secretary of the Interior because 
of his/her status as an Indian.
    (i) Indian Tribe means an Indian tribe, band, nation, pueblo, 
rancheria, or other organized group or community, including any Alaskan 
Native Village or Regional or Village Corporation as defined in or 
established under the Alaska Native Claims Settlement Act, which is 
recognized as eligible for the special programs and services provided by 
the United States to Indians because of their status as Indians.
    (j) Operating and Maintenance Expenses of Education Programs means 
the obligation and expenditures by the College for post-secondary 
education activities including administration, instruction, attendance, 
health and other student services, operation, maintenance and repair of 
plant, and fixed charges, and other related expenses, but not including 
obligations or expenditures for the acquisition or construction of 
academic facilities (as defined in Sec. 41.3(l) of subpart A).



Sec. 41.23  Eligible activities.

    Financial assistance under this subpart shall be available to defray 
only the operating and maintenance expenses of education programs of the 
College. Financial assistance under this subpart shall not be used for 
religious worship or sectarian instruction, but nothing in this subpart 
shall be construed as barring instruction in comparative religions or 
cultures or in languages of Indian tribes.



Sec. 41.24  Grants.

    (a) Navajo Community College is entitled to annual grants for 
operation and maintenance of the College in amounts based upon the 
number of Full-Time Equivalent Indian students in attendance.
    (b) Annually, in the manner and within the deadline established by 
the Director of Education, the Navajo Community College shall submit an 
application in the form of a statement of its FTE enrollment (total and 
Indian) for the next academic year. The statement shall include a 
description of the College's curriculum, which may be in the form of a 
College catalog or like publication, and a proposed budget showing total 
expected operating expenses of educational programs and expected revenue 
from all sources for the

[[Page 207]]

academic year for which the information applies. The statement shall be 
certified by the chief executive officer of the College and shall 
certify that a copy of that statement has been submitted to the Navajo 
Tribe.
    (c) Annual budget request for the College shall be sparately 
identified in the Bureau of Indian Affairs Budget Justifications. Funds 
appropriated for grants under this subpart shall not be commingled with 
other funds appropriations historically expended by the Bureau of Indian 
Affairs for programs and projects normally provided on the Navajo 
Reservation for Navajo beneficiaries.
    (d) Within thirty (30) days of submission of the statement required 
under paragraph (b) of this section, the Director of Education shall 
make a grant award to the College in an amount determined under 
paragraph (e) of this section. The grant award shall be evidenced by a 
grant agreement signed by the Director of Education, incorporating the 
grant application and including the provisions required by Sec. 41.27 
of this subpart.
    (e) The College shall be eligible to receive a grant for the fiscal 
year beginning October 1, 1979, and for each succeeding year, in an 
amount equal to $4,000 multiplied by the number of FTE Indian students 
in attendance at the College during each academic term divided by the 
number of academic terms in the academic year, except that no such grant 
shall exceed the annual operating expenses of the education programs 
provided by the College. The mathematical formula for calculating the 
base grant is BG (Base Grant)=
[GRAPHIC] [TIFF OMITTED] TC14NO91.121


where FTE is the Indian FTE for each of the academic terms during the 
academic year calculated in conformity with Sec. 41.22(g) of this 
subpart and N is the number of academic terms in the academic year. The 
amount and payment of such grants shall be subject to the availability 
of annual appropriations.
    (f) The Director of Education shall authorize payments to the 
College in advance installments by letter of credit or Treasury check in 
an amount equal to fifty percent (50%) of the grant amount available for 
allotment to the College for such academic year under paragraph (e) of 
this section on or before October 1st of such academic year (except 
1979-80) or the first day on which appropriations for the fiscal year 
beginning on such date are available for obligation by BIA, whichever 
occurs later, based on the number of FTE Indian students calculated on 
the basis of registrations as in effect at the conclusion of the sixth 
week of the final academic term of the preceding year. On or before 
January 1st (or such other date that is the first day of the fifth 
month) of such academic year, payment shall be made in the form of such 
advance installments to the College in an amount equal to seventy-five 
percent (75%) of the grant amount available for allotment to the College 
for such academic year under paragraph (e) of this section, calculated 
on the basis of registrations as in effect at the conclusion of the 
sixth week of the academic year, less the amount previously advanced for 
such academic year. On or before July 1st (or such other date that is 
the first day of the eleventh month) of such academic year, the balance 
of the grant amount to which the College is entitled under paragraph (e) 
of this section shall be paid to the College. In the event that 
additional sums are appropriated for the benefit of the College, these 
sums shall be included in the final payment.
    (g) Overpayments of grants under this subpart may be recovered in 
the manner provided by Sec. 41.8(g) of subpart A.
    (h) Payments to the Navajo Community College under this subpart 
shall not disqualify the College from applying for or receiving grants 
or contracts

[[Page 208]]

under any other Federal programs for which it may qualify.



Sec. 41.25  Reports.

    The Navajo Community College shall provide the Director of Education 
on or before September 1st of each year a report which shall include an 
accounting of the amounts and purposes for which financial assistance 
under this subpart was expended during the preceding academic year, the 
annual cost of the education programs of the College from all sources 
for such academic year, and a final report of the performance based upon 
the criteria set forth in the College's stated goals, philosophy or plan 
of operation. Upon reasonable cause, the Director of Education may 
extend the period for submitting the annual report. The college shall in 
addition report to the Director of Education its FTE Indian Student 
enrollment for each academic term of the academic year within three 
weeks of the date such FTE calculation is made.



Sec. 41.26  Technical assistance.

    The Director of Education shall furnish technical assistance, either 
directly or through contract, to the College when requested in writing. 
Such assistance shall be initiated within thirty (30) days of the 
College's request. In any case in which the form and source of technical 
assistance is specified in the request, the Director of Education shall 
to the extent possible or feasible provide technical assistance in the 
form requested and through the source so specified. Technical assistance 
may include, but is not limited to, consulting services in the 
development of annual statements and reports required under this subpart 
and accounting, and other technical advice and assistance.



Sec. 41.27  General provisions.

    The general requirements for grant administration in this section 
are applicable to all grants provided under this subpart to the Navajo 
Community College.
    (a) Services or assistance provided to Indians by the College with 
the financial assistance provided under this subpart shall be provided 
in a fair and uniform manner, and admission to the College shall not be 
denied any Indian student because such individual is not a member of a 
specific Indian tribe or because such individual is a member of a 
specific Indian tribe.
    (b) Except as may be otherwise provided in this subpart, the College 
shall comply with part 276 of this title, subject to express waiver of 
specific inappropriate provisions of part 276 that may be granted, after 
request and justification by the College by the Assistant Secretary.
    (c) In addition to any other right the college may have under this 
subpart, the College shall have the right to appeal any adverse decision 
of the Director of Education under a grant agreement to the Assistant 
Secretary by filing written notice of appeal with the Assistant 
Secretary within thirty (30) days of the adverse decision. Within thirty 
(30) days after receiving notice of appeal, the Assistant Secretary 
shall conduct a formal hearing at which time the College may present 
evidence and argument to support its appeal. Within thirty (30) days of 
the hearing, the Assistant Secretary shall issue a written ruling on the 
appeal confirming, modifying or reversing the decision of the Director 
of Education. In the case of a ruling not reversing the Director of 
Education's decision, the Assistant Secretary shall state in detail the 
basis for his/her ruling. The ruling of the Assistant Secretary on an 
appeal shall be final for the Department of the Interior.



Sec. 41.28  Criminal penalties.

    Persons submitting or causing to be submitted to the Bureau any 
false information in connection with any application, report, or other 
document, upon which the provision of the Federal financial assistance, 
or any other payment of Federal funds, is based, may be subject to 
criminal prosecution under provisions such as sections 287, 371, or 1001 
of title 18, U.S. Code.



PART 42_STUDENT RIGHTS--Table of Contents




Sec.
42.1 What general principles apply to this part?
42.2 What rights do individual students have?

[[Page 209]]

42.3 How should a school address alleged violations of school policies?
42.4 What are alternative dispute resolution processes?
42.5 When can a school use ADR processes to address an alleged 
          violation?
42.6 When does due process require a formal disciplinary hearing?
42.7 What does due process in a formal disciplinary proceeding include?
42.8 What are a student's due process rights in a formal disciplinary 
          proceeding?
42.9 What are victims' rights in formal disciplinary proceedings?
42.10 How must the school communicate individual student rights to 
          students, parents or guardians, and staff?
42.11 Information collection.

    Authority: 5 U.S.C. 301, Pub. L. 107-110, 115 Stat. 1425.

    Source: 70 FR 22218, Apr. 28, 2005, unless otherwise noted.



Sec. 42.1  What general principles apply to this part?

    (a) This part applies to every Bureau-funded school. The regulations 
in this part govern student rights and due process procedures in 
disciplinary proceedings in all Bureau-funded schools. To comply with 
this part, each school must:
    (1) Respect the constitutional, statutory, civil and human rights of 
individual students; and
    (2) Respect the role of Tribal judicial systems where appropriate.
    (b) All student rights, due process procedures, and educational 
practices should, where appropriate or possible, afford students 
consideration of and rights equal to the student's traditional Native 
customs and practices.



Sec. 42.2  What rights do individual students have?

    Individual students at Bureau-funded schools have, and must be 
accorded, at least the following rights:
    (a) The right to an education that may take into consideration 
Native American or Alaska Native values;
    (b) The right to an education that incorporates applicable Federal 
and Tribal constitutional and statutory protections for individuals; and
    (c) The right to due process in instances of disciplinary actions.



Sec. 42.3  How should a school address alleged violations of school 

policies?

    (a) In addressing alleged violations of school policies, each school 
must consider, to the extent appropriate, the reintegration of the 
student into the school community.
    (b) The school may address a student violation using alternative 
dispute resolution (ADR) processes or the formal disciplinary process.
    (1) When appropriate, the school should first attempt to use the ADR 
processes described in Sec. 42.4 that may allow resolution of the 
alleged violation without recourse to punitive action.
    (2) Where ADR processes do not resolve matters or cannot be used, 
the school must address the alleged violation through a formal 
disciplinary proceeding under Sec. 42.7 consistent with the due process 
rights described in Sec. 42.7.



Sec. 42.4  What are alternative dispute resolution processes?

    Alternative dispute resolution (ADR) processes are formal or 
informal processes that may allow resolution of the violation without 
recourse to punitive action.
    (a) ADR processes may:
    (1) Include peer adjudication, mediation, and conciliation; and
    (2) Involve appropriate customs and practices of the Indian Tribes 
or Alaska Native Villages to the extent that these practices are readily 
identifiable.
    (b) For further information on ADR processes and how to use them, 
contact the Office of Collaborative Action and Dispute Resolution by:
    (1) Sending an e-mail to: cadr@ios.doi.gov; or
    (2) Writing to: Office of Collaborative Action and Dispute 
Resolution, Department of the Interior, 1849 C Street NW., MS 5258, 
Washington, DC 20240.



Sec. 42.5  When can a school use ADR processes to address an alleged 

violation?

    (a) The school may address an alleged violation through the ADR 
processes described in Sec. 42.4, unless one of the conditions in 
paragraph (b) of this section applies.

[[Page 210]]

    (b) The school must not use ADR processes in any of the following 
circumstances:
    (1) Where the Act requires immediate expulsion (``zero tolerance'' 
laws);
    (2) For a special education disciplinary proceeding where use of ADR 
would not be compatible with the Individuals with Disabilities Education 
Act (Pub. L. 105-17); or
    (3) When all parties do not agree to using alternative dispute 
resolution processes.
    (c) If ADR processes do not resolve matters or cannot be used, the 
school must address alleged violations through the formal disciplinary 
proceeding described in Sec. 42.8.



Sec. 42.6  When does due process require a formal disciplinary hearing?

    Unless local school policies and procedures provide for less, a 
formal disciplinary hearing is required before a suspension in excess of 
10 days or expulsion.



Sec. 42.7  What does due process in a formal disciplinary proceeding 

include?

    Due process must include written notice of the charges and a fair 
and impartial hearing as required by this section.
    (a) The school must give the student written notice of charges 
within a reasonable time before the hearing required by paragraph (b) of 
this section. Notice of the charges includes:
    (1) A copy of the school policy allegedly violated;
    (2) The facts related to the alleged violation;
    (3) Information about any statements that the school has received 
relating to the charge and instructions on how to obtain copies of those 
statements; and
    (4) Information regarding those parts of the student's record that 
the school will consider in rendering a disciplinary decision.
    (b) The school must hold a fair and impartial hearing before 
imposing disciplinary action, except under the following circumstances:
    (1) If the Act requires immediate removal (such as, if the student 
brought a firearm to school) or if there is some other statutory basis 
for removal;
    (2) In an emergency situation that seriously and immediately 
endangers the health or safety of the student or others; or
    (3) If the student (or the student's parent or guardian if the 
student is less than 18 years old) chooses to waive entitlement to a 
hearing.
    (c) In an emergency situation under paragraph (b)(2) of this 
section, the school:
    (1) May temporarily remove the student;
    (2) Must immediately document for the record the facts giving rise 
to the emergency; and
    (3) Must afford the student a hearing that follows due process, as 
set forth in this part, within ten days.



Sec. 42.8  What are a student's due process rights in a formal 

disciplinary proceeding?

    A student has the following due process rights in a formal 
disciplinary proceeding:
    (a) The right to have present at the hearing the student's parents 
or guardians (or their designee);
    (b) The right to be represented by counsel (legal counsel will not 
be paid for by the Bureau-funded school or the Secretary);
    (c) The right to produce, and have produced, witnesses on the 
student's behalf and to confront and examine all witnesses;
    (d) The right to the record of the disciplinary action, including 
written findings of fact and conclusions;
    (e) The right to administrative review and appeal under school 
policy;
    (f) The right not to be compelled to testify against himself or 
herself; and
    (g) The right to have an allegation of misconduct and related 
information expunged from the student's school record if the student is 
found not guilty of the charges.



Sec. 42.9  What are victims' rights in formal disciplinary proceedings?

    In formal disciplinary proceedings, each school must consider 
victims' rights when appropriate.
    (a) The victim's rights may include a right to:
    (1) Participate in disciplinary proceedings either in writing or in 
person;

[[Page 211]]

    (2) Provide a statement concerning the impact of the incident on the 
victim; and
    (3) Have the outcome explained to the victim and to his or her 
parents or guardian by a school official, consistent with 
confidentiality.
    (b) For the purposes of this part, the victim is the actual victim, 
not his or her parents or guardians.



Sec. 42.10  How must the school communicate individual student rights

to students, parents or guardians, and staff?

    Each school must:
    (a) Develop a student handbook that includes local school policies, 
definitions of suspension, expulsion, zero tolerance, and other 
appropriate terms, and a copy of the regulations in this part;
    (b) Provide all school staff a current and updated copy of student 
rights and responsibilities before the first day of each school year;
    (c) Provide all students and their parents or guardians a current 
and updated copy of student rights and responsibilities every school 
year upon enrollment; and
    (d) Require students, school staff, and to the extent possible, 
parents and guardians, to confirm in writing that they have received a 
copy and understand the student rights and responsibilities.



Sec. 42.11  Information collection.

    Notwithstanding any other provision of law, no person is required to 
respond to, nor shall any person be subject to a penalty for failure to 
comply with a collection of information, subject to the requirements of 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), 
unless that collection of information displays a currently valid Office 
of Management and Budget (OMB) Control Number. This part in Sec. Sec. 
42.6, 42.7, and 42.9 contains collections of information subject to the 
PRA. These collections have been approved by OMB under control number 
1076-0163.



PART 43_MAINTENANCE AND CONTROL OF STUDENT RECORDS IN BUREAU SCHOOLS--

Table of Contents




Sec.
43.1 Purpose and scope.
43.2 Definitions.
43.3 Student rights.
43.4 Annual notification of rights.
43.5 Access to records.
43.6 Limitations on access.
43.7 Access rights.
43.8 Destruction of records.
43.9 Procedures for granting access.
43.10 Right to challenge.
43.11 Informal proceedings.
43.12 Right to a hearing.
43.13 Right of appeal.
43.14 Consent.
43.15 Content of consent.
43.16 Copy to be provided to parents or eligible students.
43.17 Release of information for health or safety emergencies.
43.18 Record of access.
43.19 Transfer of information by third parties.
43.20 Directory information.
43.21 Standards for collection and maintenance of student records.
43.22 Assuring integrity of records.
43.23 Conduct of employees.

    Authority: 35 Stat. 72 (25 U.S.C. 295); Pub. L. 93-579, 88 Stat. 
1896; Sec. 438, Pub. L. 93-380, as amended; Pub. L. 94-142.

    Source: 43 FR 52024, Nov. 8, 1978, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 43.1  Purpose and scope.

    This part contains the regulations of the Bureau of Indian Affairs, 
U.S. Department of the Interior, governing the maintenance, control, and 
accessibility of student records. This part will apply to all 
educational institutions under the jurisdiction of the Bureau of Indian 
Affairs, whether operated under contract or otherwise.



Sec. 43.2  Definitions.

    As used in this part:
    (a) Assistant Secretary means the Assistant Secretary--Indian 
Affairs, Department of the Interior.
    (b) Educational institution means any institution operated under the 
jurisdiction of the Bureau of Indian Affairs either directly or by 
contract, including, but not limited to, schools or dormitories from 
which Indian students attend public schools.

[[Page 212]]

    (c) Eligible student means a student who has become 18 years of age 
or is attending an institution of post-secondary education. When a 
student becomes an eligible student, the permission required of and the 
rights given to the parents of the student shall thereafter only be 
required of and given to the student.
    (d) Parent means a natural parent, an adoptive parent, the legal 
guardian, or a legal custodian of a student. (Where the natural parents 
are unavailable, a required written parental consent may be obtained 
from the person who has assumed custody of the student.) For purposes of 
the Education of All Handicapped Children Act, the term parent also 
includes a surrogate as referred to in 20 U.S.C. 1415(b)(1)(B).
    (e) Student records means those records, files, documents, and other 
materials which contain information directly related to a student and 
which are maintained by an educational institution, or by a person 
acting for that institution. The term does not include:
    (1) Records of any educational personnel which are in the sole 
possession of the maker and which are not accessible or revealed to any 
other person except a substitute.
    (2) Records made and maintained in the normal course of business 
which relate exclusively to persons who are employed in an educational 
institution but do not attend that institution.
    (3) Directory information as given in Sec. 43.20.
    (4) Records on a student who is 18 years of age or older, or is 
attending an institution of post-secondary education, which are made or 
maintained by a physician, psychiatrist, psychologist, or other 
recognized professional or paraprofessional acting in his professional 
or paraprofessional capacity, or assisting in that capacity, and which 
are made, maintained, or used only in connection with the provision of 
treatment to the student, and are not available to anyone other than 
persons providing such treatment, except that such records can be 
personally reviewed by a physician or other appropriate professional of 
the student's choice.



Sec. 43.3  Student rights.

    The regulations in this part do not prevent educational institutions 
from giving noneligible students rights similar to those given to 
parents and eligible students. Educational institutions may do so at 
their discretion.



Sec. 43.4  Annual notification of rights.

    (a) Each educational institution to which this part applies and 
which maintains records on students shall inform parents or eligible 
students of the rights given them by this part.
    (b) In meeting the requirement in paragraph (a) of this section the 
educational institution shall give notice to parents and eligible 
students at least annually of the following:
    (1) The types of education records and information contained in them 
which are directly related to students and maintained by the 
institution.
    (2) The name and position of the official responsible for 
maintaining each type of record, the persons who have access to those 
records, and the purpose for which they have access.
    (3) The policies of the institution for reviewing and expunging 
those records.
    (4) The procedures established by the institution under Sec. 43.5.
    (5) The procedures for challenging the content of education records 
including those in Sec. 43.10.
    (6) The cost, if any, which will be charged to the parent or 
eligible student for reproducing copies of records under Sec. 43.5.
    (7) The categories of information which the institution has 
designated as ``directory information'' under Sec. 43.20.
    (c) The notice given to a parent or eligible student under this 
section shall be in a language considered by the institution to be 
understandable by the parent or eligible student.



Sec. 43.5  Access to records.

    Educational institutions shall give parents of students or eligible 
students, who are or have been in attendance at the institutions, access 
to student records, except as stated in Sec. 43.6.



Sec. 43.6  Limitations on access.

    Educational institutions are not required to make available to 
students the following materials:

[[Page 213]]

    (a) Financial records of the parents of the student or any 
information contained in those records.
    (b) Confidential letters and statements of recommendations, which 
were placed in any student's record prior to January 1, 1975, and which 
are not used for purposes other than those for which they were 
specifically intended.
    (c) Those records listed in Sec. 43.2(e) which are exempt from the 
definition of student records.



Sec. 43.7  Access rights.

    The right of access specified in Sec. 43.5 shall include:
    (a) The right to obtain a list of the types of student records which 
are maintained by the institution.
    (b) The right to inspect and review the content of those records.
    (c) The right to obtain copies of those records, the cost, if any, 
not to exceed the actual cost to the educational institution of 
reproducing the copies.
    (d) The right to a response from the institution to reasonable 
requests for explanations and interpretations of those records.
    (e) The right to an opportunity for a hearing to challenge the 
content of records.
    (f) If any material or document in the record of a student includes 
information on more than one student, the right to inspect and review 
only that portion of such material or document as relates to that 
particular student or to be informed of the specific information 
contained in such part of such materials.



Sec. 43.8  Destruction of records.

    This part does not prevent educational institutions from destroying 
any records, if not otherwise prevented by law. However, access shall be 
granted under Sec. 43.5 before destroying student records where the 
parent or eligible student has requested access. Only records which are 
no longer relevant or necessary may be destroyed, subject to Sec. 
43.23(c).



Sec. 43.9  Procedures for granting access.

    Each educational institution shall establish appropriate procedures 
for granting a request by parents for access to the records of their 
children, or by eligible students for access to their own records within 
a reasonable period of time. In no case shall access be withheld more 
than forty-five (45) days after the request has been made.



Sec. 43.10  Right to challenge.

    Each educational institution shall give parents of students and 
eligible students, who are or have been in attendance at the 
institution, an opportunity to challenge the content of the student's 
records to:
    (a) Insure that the records are not inaccurate, misleading, or 
otherwise violating the privacy or other rights of students.
    (b) Provide an opportunity for correcting or deleting any 
inaccurate, misleading, or otherwise inappropriate data in the record.
    (c) Insert into such records a written comment by the parents or 
eligible students pertaining to the content of such records.



Sec. 43.11  Informal proceedings.

    Educational institutions may attempt to resolve differences with the 
parent of a student or the eligible student regarding the content of the 
student's records through informal meetings and discussions with the 
parent or eligible student.



Sec. 43.12  Right to a hearing.

    Upon the request of the educational institution, the parent, or 
eligible student, a hearing shall be conducted under the procedures 
adopted and published by the institution. Such procedures shall include 
at least the following elements:
    (a) The hearing shall be conducted and decided within a reasonable 
period of time following the request for the hearing.
    (b) The hearing shall be informal and a verbatim record of 
proceedings will not be required. Interpreters will be utilized when 
necessary.
    (c) The hearing shall be conducted by an institutional official or 
other party who does not have a direct interest in the outcome of the 
hearing.
    (d) The parents or eligible student shall be given a full and fair 
opportunity to present evidence relevant to the issues raised under 
Sec. 43.10.

[[Page 214]]

    (e) Within a reasonable period of time after the hearing ends, the 
hearing official shall make his recommendation in writing to the head of 
the educational institution. Within 20 days after receipt of the 
recommendation, the head of the institution shall issue his decision in 
writing to the parent or eligible student.



Sec. 43.13  Right of appeal.

    If any parent or eligible student is adversely affected by the 
decision of the head of the institution, that party shall have appeal 
rights as given in 25 CFR part 2. However, each official decision shall 
be issued within 30 days from receipt of the appeal.



Sec. 43.14  Consent.

    Educational institutions shall not permit access to or the release 
of student records or personally identifiable information contained in 
them, other than directory information of students, without the written 
consent of the parents or of an eligible student, to any party other 
than the following:
    (a) Local school officials, including teachers within the 
educational institution, who have been determined by the institution to 
have legitimate educational interests in the records.
    (b) Officials of other schools or school systems at which a student 
is interested in enrolling. The student or parent must be notified of 
such release except in cases involving Bureau of Indian Affairs schools. 
All Bureau of Indian Affairs schools are considered to be components of 
one school system whether operated under contract or otherwise.
    (c) Persons having official involvement with a student's application 
for or grant of financial aid.
    (d) Parents of a dependent student as defined in section 152 of the 
Internal Revenue Code of 1954, as amended.
    (e) Accreditation agencies in order to carry out their accrediting 
functions.
    (f) U.S. Office of Education officials and other governmental 
education officials when deemed necessary by the institution to carry 
out their official functions.
    (g) An education testing center or similar institution as a part of 
its validation research which has been authorized by the school.
    (h) In an emergency, any person to whom the information is necessary 
in the discretion of the school's administration in order to protect the 
student's health and safety, subject to Sec. 43.17.
    (i) Indian groups, contractors, grantees, professional social 
service organizations and personnel performing professional services, 
when necessary to carry out an official function authorized by the 
Bureau of Indian Affairs.
    (j) Pursuant to the order of a court of competent jurisdiction; 
however, the parent or eligible student must be notified of such order 
in advance of compliance therewith by the educational institution.



Sec. 43.15  Content of consent.

    The consent of a parent or eligible student requested under this 
part for the release of student records shall be in writing, signed and 
dated by the person giving the consent. The consent shall include:
    (a) A specification of the records to be released.
    (b) The reasons for release.
    (c) The names of the parties to whom the records will be released.



Sec. 43.16  Copy to be provided to parents or eligible students.

    Where the consent of a parent or eligible student is required under 
this part for the release of student records, a copy of the records to 
be released shall be provided on request to:
    (a) The student's parents or the eligible student.
    (b) The student who is not an eligible student, if desired by the 
parents.



Sec. 43.17  Release of information for health or safety emergencies.

    (a) Educational institutions may release information from student 
records to appropriate persons in an emergency if the information is 
necessary to protect the health or safety of a student or other person. 
The factors to be used in determining whether records may be released 
under this section include the following:

[[Page 215]]

    (1) The seriousness of the threat to the health or safety of the 
student or other persons.
    (2) The need for those records to meet the emergency.
    (3) Whether the persons to whom the records are released are in a 
position to deal with the emergency.
    (4) The extent to which time is of the essence in dealing with the 
emergency.



Sec. 43.18  Record of access.

    (a) Each educational institution shall maintain a record kept with 
the student records of each student, which will indicate all parties 
other than those specified in Sec. 43.14 which have requested or 
obtained access to those records and which will indicate specifically 
the legitimate interest that each party had in obtaining this 
information.
    (b) A record of access shall be available only to:
    (1) Parents or eligible students.
    (2) The school official and his or her assistants who are 
responsible for the custody of such records.
    (3) Persons or organizations authorized in and under the conditions 
of Sec. 43.14.



Sec. 43.19  Transfer of information by third parties.

    (a) Educational institutions shall not release personal information 
on a student except on the condition that the party to which the 
information is being transferred will not permit any other party to have 
access to the information without the written consent of the parents or 
of the eligible students.
    (b) With any information released to a party under paragraph (a) of 
this section, educational institutions shall include a written statement 
which informs the party of the requirement in paragraph (a) of this 
section.



Sec. 43.20  Directory information.

    (a) Any educational institution making public directory information 
shall make a reasonable effort to individually notify the parent or 
eligible student of the categories of information which it has 
designated as directory information. The institution shall allow a 
reasonable period of time after notice has been given for a parent or 
eligible student to inform the institution that any or all of the 
information designated should not be released without the prior consent 
of the parent or eligible student.
    (b) Directory information may include the following: A student's 
name, address, telephone listing, date and place of birth, major field 
of study, participation in officially recognized activities and sports, 
weight and height of members of athletic teams, dates of attendance, 
degrees and awards received, and the most recent previous educational 
agency or institution attended by the student, tribe, agency, area, name 
of parent, sex, and classification (grade). No other information may be 
included. Educational institutions have the right to limit the content 
of directory information.



Sec. 43.21  Standards for collection and maintenance of student records.

    (a) Records shall contain only information about an individual which 
is relevant and necessary to accomplish a purpose of the Bureau required 
to be accomplished by statute or Executive order of the President.
    (b) Student records which are used in making any determination about 
any student shall be maintained with such accuracy, relevance, 
timeliness, and completeness as is reasonably necessary to assure 
fairness to the student in making the determination.
    (c) Information which may be used in determining a student's rights, 
benefits, and privileges under Federal programs shall be collected 
directly from the student or his parents, to the greatest extent 
practicable. In deciding whether collection of information from a parent 
or eligible student, as opposed to a third-party source is practicable, 
the following factors among others may be considered:
    (1) Whether the nature of the information sought is such that it can 
only be obtained from a third party.
    (2) Whether the cost of collecting the information from the parent 
or student is unreasonable, when compared with the cost of collecting it 
from a third party.
    (3) Whether there is a risk that information collected from third 
parties, if inaccurate, could result in an adverse

[[Page 216]]

determination to the student concerned.
    (4) Whether the information, if supplied by the parent or student, 
would have to be verified by a third party.
    (5) Whether provisions can be made for verification by the parent of 
student of information collected from third parties.
    (d) Each individual parent or eligible student who is asked to 
supply information about himself which will be added to a system of 
student records shall be notified of the basis for requesting the 
information, how it may be used, and what the consequences, if any, are 
of not supplying the information. At a minimum, the notice to the parent 
or eligible student must state:
    (1) The authority (whether granted by statute or Executive Order of 
the President) which authorizes requesting the information and whether 
disclosure of such information is mandatory or voluntary.
    (2) The principle purpose or purposes for which the information is 
intended to be used.
    (3) The routine uses which may be made of the information.
    (4) The effects, if any, of not providing all or any part of the 
requested information.
    (e) When information is collected on a standard form, the notice to 
the parent or eligible student shall be on the form or on a tear-off 
sheet attached to the form or on a separate sheet, whichever, is most 
practical.
    (f) When information is collected by an interviewer, the interviewer 
shall provide the parent or eligible student with a written notice which 
the individual may retain. If the interview is conducted by telephone, 
however, the interviewer may summarize the notice for the individual and 
need not provide a copy to the individual unless the individual requests 
that a copy be mailed to him.
    (g) A parent or eligible student may be asked to acknowledge, in 
writing, that he has been given the notice required by this section.
    (h) No student records may be maintained describing how any 
individual exercises rights guaranteed by the first amendment to the 
Constitution unless:
    (1) Expressly authorized by statute or by the individual about whom 
the student record is maintained; or
    (2) Pertinent to and within the scope of an authorized law 
enforcement activity.



Sec. 43.22  Assuring integrity of records.

    (a) Student records shall be maintained with appropriate 
administrative, technical and physical safeguards to insure the security 
and confidentiality of records and to protect against any anticipated 
threats or hazards to their security or integrity which could result in 
substantial harm, embarrassment, inconvenience, or unfairness to any 
individual on whom information is maintained.
    (b) When maintained in manual form, student records shall be 
maintained, at a minimum, subject to the following safeguards, or 
safeguards giving comparable protection:
    (1) Areas in which the student records are maintained or regularly 
used shall be posted with an appropriate warning, stating that access to 
the records is limited to authorized persons. The warning shall also 
summarize the requirements of Sec. 43.23 and state that employees may 
be subject to a criminal penalty for the unauthorized disclosure of 
student records.
    (2) During working hours, the area in which the student records are 
maintained or regularly used shall be occupied by authorized personnel, 
or access to the student records shall be restricted by their storage in 
locked metal file cabinets or a locked room.
    (3) During nonworking hours, access to the student records shall be 
restricted by their storage in locked metal file cabinets or a locked 
room.
    (4) Where a locked room is the method of security provided for a 
system, the educational institution responsible for the system shall, no 
later than December 31, 1978, supplement that security by:
    (i) Providing lockable file cabinets or containers for the student 
records, or
    (ii) Changing the lock or locks for the room so that they may not be 
opened with a master key. For the purpose of this paragraph, a master is 
a key which may be used to open rooms

[[Page 217]]

other than the room containing student records, unless those rooms are 
used by officials or employees authorized to have access to the student 
records.
    (c) When maintained in computerized form, student records shall be 
maintained, at a minimum, subject to safeguards based on those 
recommended in the National Bureau of Standards' booklet, ``Computer 
Security Guidelines for Implementing the Privacy Act of 1974'' (May 30, 
1975), and any supplements to it, which are adequate and appropriate to 
assure the integrity of records in the system.
    (d) The education institution responsible for a system of student 
records shall be responsible for assuring that specific procedures are 
developed to assure that the student records in the system for which it 
is responsible are maintained with security meeting the regulations in 
this section. These procedures shall be in writing and shall be posted 
or otherwise periodically brought to the attention of employees working 
with the student records contained in the system.



Sec. 43.23  Conduct of employees.

    (a) Employees whose duties require handling of student records 
shall, at all times, take care to protect the integrity, security, and 
confidentiality of these records.
    (b) No employee of the educational institution may disclose student 
records unless disclosure is permitted under Sec. 43.14 or made to the 
parent of the student or eligible student to whom the record pertains.
    (c) No employee of the educational institution may alter or destroy 
a student record, unless:
    (1) Alteration or destruction is properly undertaken in the course 
of the employee's regular duties, or
    (2) Alteration or destruction is required by an authorized 
administrative decision or the decision of a court of competent 
jurisdiction.
    (d) The educational institution responsible for a system of student 
records shall be responsible for assuring that employees with access to 
the system are made aware of the requirements of this section.



PART 44_GRANTS UNDER THE TRIBALLY CONTROLLED SCHOOLS ACT--Table of

Contents




Sec.
44.101 What directives apply to a grantee under this part?
44.102 Does this part affect existing tribal rights?
44.103 Who is eligible for a grant?
44.104 How can a grant be terminated?
44.105 How does a tribal governing body retrocede a program to the 
          Secretary?
44.106 How can the Secretary revoke an eligibility determination?
44.107 Under what circumstances may the Secretary reassume a program?
44.108 How must the Secretary make grant payments?
44.109 What happens if the grant recipient is overpaid?
44.110 What Indian Self-Determination Act provisions apply to grants 
          under the Tribally Controlled Schools Act?
44.111 Does the Federal Tort Claims Act apply to grantees?
44.112 Information Collection

    Authority: Public Law 107-110, Title 10, Part D, the Native American 
Education Improvement Act, 115 Stat. 2007; Part B, Section 1138, 
Regional Meetings and Negotiated Rulemaking, 115 Stat. 2057.

    Source: 70 FR 22219, Apr. 28, 2005, unless otherwise noted.



Sec. 44.101  What directives apply to a grantee under this part?

    In making a grant under this part the Secretary will use only:
    (a) The Tribally Controlled Schools Act;
    (b) The regulations in this part; and
    (c) Guidelines, manuals, and policy directives agreed to by the 
grantee.



Sec. 44.102  Does this part affect existing tribal rights?

    This part does not:
    (a) Affect in any way the sovereign immunity from suit enjoyed by 
Indian tribes;
    (b) Terminate or change the trust responsibility of the United 
States to any Indian tribe or individual Indian;
    (c) Require an Indian tribe to apply for a grant; or
    (d) Impede awards by any other Federal agency to any Indian tribe or 
tribal organization to administer any Indian program under any other 
law.

[[Page 218]]



Sec. 44.103  Who is eligible for a grant?

    The Secretary can make grants to Indian tribes and tribal 
organizations that operate:
    (a) A school under the provisions of 25 U.S.C. 450 et seq.;
    (b) A tribally controlled school (including a charter school, 
community-generated school or other type of school) approved by tribal 
governing body; or
    (c) A Bureau-funded school approved by tribal governing body.



Sec. 44.104  How can a grant be terminated?

    A grant can be terminated only by one of the following methods:
    (a) Retrocession;
    (b) Revocation of eligibility by the Secretary; or
    (c) Reassumption by the Secretary.



Sec. 44.105  How does a tribal governing body retrocede a program 

to the Secretary?

    (a) To retrocede a program, the tribal governing body must:
    (1) Notify the Bureau in writing, by formal action of the tribal 
governing body; and
    (2) Consult with the Bureau to establish a mutually agreeable 
effective date. If no date is agreed upon, the retrocession is effective 
120 days after the tribal governing body notifies the Bureau.
    (b) The Bureau must accept any request for retrocession that meets 
the criteria in paragraph (a) of this section.
    (c) After the tribal governing body retrocedes a program:
    (1) The tribal governing body decides whether the school becomes 
Bureau-operated or contracted under 25 U.S.C. 450 et seq.; and
    (2) If the tribal governing body decides that the school is to be 
Bureau-operated, the Bureau must provide education-related services in 
at least the same quantity and quality as those that were previously 
provided.



Sec. 44.106  How can the Secretary revoke an eligibility determination?

    (a) In order to revoke eligibility, the Secretary must:
    (1) Provide the tribe or tribal organization with a written notice;
    (2) Furnish the tribe or tribal organization with technical 
assistance to take remedial action; and
    (3) Provide an appeal process.
    (b) The Secretary cannot revoke an eligibility determination if the 
tribe or tribal organization is in compliance with 25 U.S.C. 2505(c).
    (c) The Secretary can take corrective action if the school fails to 
be accredited by January 8, 2005.
    (d) In order to revoke eligibility for a grant, the Secretary must 
send the tribe or tribal organization a written notice that:
    (1) States the specific deficiencies that are the basis of the 
revocation or reassumption; and
    (2) Explains what actions the tribe or tribal organization must take 
to remedy the deficiencies.
    (e) The tribe or tribal organization may appeal a notice of 
revocation or reassumption by requesting a hearing under 25 CFR part 
900, subpart L or P.
    (f) After revoking eligibility, the Secretary will either contract 
the program under 25 U.S.C. 450 et seq. or operate the program directly.



Sec. 44.107  Under what circumstances may the Secretary reassume a

program?

    The Secretary may only reassume a program in compliance with 25 
U.S.C. 450m and 25 CFR part 900, subpart P. The tribe or school board 
shall have a right to appeal the reassumption pursuant to 25 CFR part 
900, subpart L.



Sec. 44.108  How must the Secretary make grant payments?

    (a) The Secretary makes two annual grant payments.
    (1) The first payment, consisting of 80 per cent of the amount that 
the grantee was entitled to receive during the previous academic year, 
must be made no later than July 1 of each year; and
    (2) The second payment, consisting of the remainder to which the 
grantee is entitled for the academic year, must be made no later than 
December 1 of each year.

[[Page 219]]

    (b) For funds that become available for obligation on October 1, the 
Secretary must make payments no later than December 1.
    (c) If the Secretary does not make grant payments by the deadlines 
stated in this section, the Secretary must pay interest under the Prompt 
Payment Act. If the Secretary does not pay this interest, the grantee 
may pursue the remedies provided under the Prompt Payment Act.



Sec. 44.109  What happens if the grant recipient is overpaid?

    (a) If the Secretary has mistakenly overpaid the grant recipient, 
then the Secretary will notify the grant recipient of the overpayment. 
The grant recipient must return the overpayment within 30 days after the 
final determination that overpayment occurred.
    (b) When the grant recipient returns the money to the Secretary, the 
Secretary will distribute the money equally to all schools in the 
system.



Sec. 44.110  What Indian Self-Determination Act provisions apply to

grants under the Tribally Controlled Schools Act?

    (a) The following provisions of 25 CFR part 900 apply to grants 
under the Tribally Controlled Schools Act.
    (1) Subpart F; Standards for Tribal or Tribal Organization 
Management Systems, Sec. 900.45.
    (2) Subpart H; Lease of Tribally-owned Buildings by the Secretary.
    (3) Subpart I; Property Donation Procedures.
    (4) Subpart N; Post-award Contract Disputes.
    (5) Subpart P; Retrocession and Reassumption Procedures.
    (b) To resolve any disputes arising from the Secretary's 
administration of the requirements of this part, the procedures in 
subpart N of part 900 apply if the dispute involves any of the 
following:
    (1) Any exception or problem cited in an audit;
    (2) Any dispute regarding the grant authorized;
    (3) Any dispute involving an administrative cost grant;
    (4) Any dispute regarding new construction or facility improvement 
or repair; or
    (5) Any dispute regarding the Secretary's denial or failure to act 
on a request for facilities funds.



Sec. 44.111  Does the Federal Tort Claims Act apply to grantees?

    Yes, the Federal Tort Claims Act applies to grantees.



Sec. 44.112  Information collection.

    Notwithstanding any other provision of law, no person is required to 
respond to, nor shall any person be subject to a penalty for failure to 
comply with a collection of information, subject to the requirements of 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), 
unless that collection of information displays a currently valid Office 
of Management and Budget (OMB) Control Number. This part in Sec. 44.105 
contains collections of information subject to the PRA. These 
collections have been approved by OMB under control number 1076-0163.



PART 46_ADULT EDUCATION PROGRAM--Table of Contents




                      Subpart A_General Provisions

Sec.
46.1 Purpose and scope.
46.2 Definitions.
46.3 Information collection.
46.10 Eligible activities.
46.20 Program requirements.
46.30 Records and reporting requirements.

Subpart B [Reserved]

    Authority: 43 U.S.C. 1457; 25 U.S.C. 2, 9, 13.

    Source: 62 FR 44081, Aug. 19, 1997, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 46.1  Purpose and scope.

    The purpose of the Adult Education Program is to:
    (a) Improve educational opportunities for Indian adults who lack the 
level of literacy skills necessary for effective citizenship and 
productive employment;
    (b) Expand and improve existing programs for delivering adult 
education services, including delivery of these services to 
educationally disadvantaged Indian adults; and

[[Page 220]]

    (c) Encourage the establishment of adult education programs that 
will:
    (1) Enable Indian adults to acquire adult basic educational skills 
necessary for literate functioning;
    (2) Provide Indian adults with sufficient basic education to enable 
them to benefit from job training and retraining programs and to obtain 
and retain productive employment so that they might more fully enjoy the 
benefits and responsibilities of citizenship; and
    (3) Enable Indian adults, who so desire, to continue their education 
to at least the level of completion of adult secondary education.



Sec. 46.2  Definitions.

    As used in this part:
    Adult means an individual who has attained the age of sixteen or is 
beyond the age of compulsory school attendance under State or tribal law 
and not currently enrolled in a formal secondary or post-secondary 
educational program.
    Adult Basic Education (ABE) means instruction designed for an adult 
who:
    (1) Has minimal competence in reading, writing, and computation;
    (2) Cannot speak, read, or write the English language sufficiently 
to allow employment commensurate with the adult's real ability;
    (3) Is not sufficiently competent to meet the educational 
requirements of an adult consumer; or
    (4) In grade level measurements that would be designated as grades 0 
through 8.
    Adult Education means services or instruction below the college 
level for adults who:
    (1) Lack sufficient mastery of basic educational skills to enable 
them to function effectively in society, or
    (2) Do not have a certificate of graduation from a school providing 
secondary education and have not achieved a GED.
    Adult Education Office means the BIA or tribal office administering 
funds appropriated to the BIA, under the TPA, for Adult Education 
programs.
    Adult Secondary Education means instruction designed for an adult 
who:
    (1) Is literate and can function in everyday life, but is not 
proficient as a competitive consumer or employee; or
    (2) Does not have a certificate of graduation (or its equivalent) 
from a school providing secondary education and in grade level 
measurements that would be designated as grades 9 through 12.
    Assistant Secretary means the Assistant Secretary--Indian Affairs, 
Department of the Interior, or his/her designee.
    Bureau means the Bureau of Indian Affairs.
    Department of Education (ED) means the U.S. Department of Education.
    Director means the Director, Office of Indian Education Programs, 
Bureau of Indian Affairs.
    Indian means a person who is a member of, or is at least a one-
fourth degree Indian blood descendent of a member of, an Indian tribe, 
and is eligible for the special programs and services provided by the 
United States through the Bureau of Indian Affairs to Indians because of 
their status as Indians;
    Indian tribe means any Indian tribe, band, nation, rancheria, 
pueblo, colony or community, including any Alaska native village or 
regional or village corporation as defined in, or established pursuant 
to, the Alaska Native Claims Settlement Act (85 Stat. 668) that is 
Federally recognized by the United States Government through the 
Secretary of the Interior for the special programs and services provided 
by the Secretary to Indians because of their status as Indians.
    Tribal Priority Allocation (TPA) means the BIA's budget formulation 
process that allows direct tribal government involvement in the setting 
of relative priorities for local operating programs.
    Secretary means the Secretary of the Department of the Interior.
    Service area means the geographic area served by the local Adult 
Education Program.



Sec. 46.3  Information collection.

    Information collection requirements contained in this part have been 
approved by the Office of Management and Budget under 44 U.S.C. 3501 et 
seq. and assigned control number 1076-0120. This information is being 
collected to assess the need for adult education programs. The 
information collection is used to manage program resources and

[[Page 221]]

for fiscal accountability and appropriate direct services documentation. 
Response to this request is necessary to obtain or retain a benefit. 
Public reporting burden for this form is estimated to average 4 hours 
per response including time for reviewing instructions, gathering, 
maintaining data, completing and reviewing the form. Direct comments 
regarding the burden estimate or any other aspect of this form to the 
BIA Information Collection Clearance Officer, 1849 C Street NW., 
Washington, DC 20240.

[67 FR 13570, Mar. 25, 2002]



Sec. 46.10  Eligible activities.

    (a) Subject to availability of funds, funds appropriated for the 
BIA's Adult Education Program may be used to support local projects or 
programs designed to:
    (1) Enable Indian adults to acquire basic educational skills, 
including literacy;
    (2) Enable Indian adults to continue their education through the 
secondary school level;
    (3) Establish career education projects intended to improve 
employment opportunities;
    (4) Provide educational services or instruction for elderly, 
disabled, or incarcerated Indian adults;
    (5) Prepare individuals to benefit from occupational training; and
    (6) Teach employment-related skills.
    (b) Funds should not be used to support programs designed solely to 
prepare Indian adults to enter a specific occupation or cluster of 
closely related occupations.
    (c) The Adult Education Program must be implemented in accordance 
with a plan established by the tribe(s) affected by the program. The 
tribe(s) may determine to set standards in addition to those established 
in this part.



Sec. 46.20  Program requirements.

    (a) The Adult Education Office will implement the program or project 
that is designed to address the needs of the Indian adults in the 
service area. To determine the needs of Indian adults in the area, the 
Adult Education Office must consider:
    (1) Elementary/secondary school dropout or absentee rates;
    (2) Average grade level completed;
    (3) Unemployment rates; and
    (4) Other appropriate measures.
    (b) The Adult Education Office, to ensure efforts that no 
duplication of services exists, will identify other services in the 
area, including those offered by Federal, State and Tribal entities, 
that are designed to meet the same needs as those to be addressed by the 
project, and the number of Indian adults who receive those services.
    (c) The Adult Education Office must establish and maintain an 
evaluation plan.
    (1) The plan must be designed to measure the project's effectiveness 
in meeting each objective and the impact of the project on the adults 
involved; and
    (2) The plan must provide procedures for periodic assessment of the 
progress of the project and, if necessary, modification of the project 
as a result of that assessment.
    (d) Subject to the availability of funds, the project is to be 
supported under the funding level established for Adult Education in the 
formulation of the budget under the TPA process.



Sec. 46.30  Records and reporting requirements.

    (a) The Adult Education Office will annually submit a report on the 
previous project year's activities to the Director, Office of Indian 
Education Programs. The report must include the following information:
    (1) The type of eligible activity, under Sec. 46.10, conducted 
under the project(s);
    (2) The number of participants acquiring the GED, high school 
diploma, and other certificates of performance; and
    (3) A narrative summary of the activities conducted under the 
project.
    (b) Each Adult Education Office must:
    (1) Submit any records and information that the Director requires in 
connection with the administration of the program; and
    (2) Comply with any requirements that the Director may impose to 
ensure the accuracy of the reports required by this part.

[[Page 222]]

Subpart B [Reserved]



PART 47_UNIFORM DIRECT FUNDING AND SUPPORT FOR BUREAU-OPERATED 

SCHOOLS--Table of Contents




Sec.
47.1 What is the purpose of this part?
47.2 What definitions apply to terms in this part?
47.3 How does a Bureau-operated school find out how much funding it will 
          receive?
47.4 When does OIEP provide funding?
47.5 What is the school supervisor responsible for?
47.6 Who has access to local education financial records?
47.7 What are the expenditure limitations for Bureau-operated schools?
47.8 Who develops the local educational financial plans?
47.9 What are the minimum requirements for the local educational 
          financial plan?
47.10 How is the local educational financial plan developed?
47.11 Can these funds be used as matching funds for other Federal 
          programs?
47.12 Information collection.

    Authority: Pub. L. 107-110, 115 Stat. 1425.

    Source: 70 FR 22221, Apr. 28, 2005, unless otherwise noted.



Sec. 47.1  What is the purpose of this part?

    This part contains the requirements for developing local educational 
financial plans that Bureau-operated schools need in order to receive 
direct funding from the Bureau of Indian Affairs under section 1127 of 
the Act.



Sec. 47.2  What definitions apply to terms in this part?

    Act means the No Child Left Behind Act, Public Law 107-110, enacted 
January 8, 2002. The No Child Left Behind Act reauthorizes and amends 
the Elementary and Secondary Education Act (ESEA) and the amended 
Education Amendments of 1978.
    Budget means that element in the local educational financial plan 
which shows all costs of the plan by discrete programs and sub-cost 
categories.
    Bureau means the Bureau of Indian Affairs in the Department of the 
Interior.
    Consultation means soliciting and recording the opinions of Bureau-
operated school boards regarding each element of the local educational 
financial plan and incorporating these opinions to the greatest degree 
feasible in the development of the local educational financial plan at 
each stage.
    Director means the Director, Office of Indian Education Programs.
    Local educational financial plan means the plan that:
    (1) Programs dollars for educational services for a particular 
Bureau-operated school; and
    (2) Has been ratified in an action of record by the local school 
board or determined by the superintendent under the appeals process in 
25 CFR part 2.
    OIEP means the Office of Indian Education Programs in the Bureau of 
Indian Affairs of the Department of the Interior.
    Secretary means the Secretary of the Interior or a designated 
representative.



Sec. 47.3  How does a Bureau-operated school find out how much funding

it will receive?

    The Office of Indian Education Programs (OIEP) will notify each 
Bureau-operated school in writing of the annual funding amount it will 
receive as follows:
    (a) No later than July 1 OIEP will let the Bureau-operated school 
know the amount that is 80 percent of its funding; and
    (b) No later than September 30 OIEP will let the Bureau-operated 
school know the amount of the remaining 20 percent.



Sec. 47.4  When does OIEP provide funding?

    By July 1 of each year OIEP will make available for obligation 80 
percent of the funds for the fiscal year that begins on the following 
October 1.



Sec. 47.5  What is the school supervisor responsible for?

    Each Bureau-operated school's school supervisor has the 
responsibilities in this section. The school supervisor must do all of 
the following:
    (a) Ensure that the Bureau-operated school spends funds in 
accordance with the local educational financial plan, as ratified or 
amended by the school board;

[[Page 223]]

    (b) Sign all documents required to obligate or pay funds or to 
record receipt of goods and services;
    (c) Report at least quarterly to the local school board on the 
amounts spent, obligated, and currently remaining in funds budgeted for 
each program in the local educational financial plan;
    (d) Recommend changes in budget amounts to carry out the local 
educational financial plan, and incorporate these changes in the budget 
as ratified by the local school board, subject to provisions for appeal 
and overturn; and
    (e) Maintain expenditure records in accordance with financial 
planning system procedures.



Sec. 47.6  Who has access to local education financial records?

    The Comptroller General, the Assistant Secretary, the Director, or 
any of their duly authorized representatives have access for audit and 
explanation purposes to any of the local school's accounts, documents, 
papers, and records which are related to the Bureau-operated schools' 
operation.



Sec. 47.7  What are the expenditure limitations for Bureau-operated

schools?

    Each Bureau-operated school must spend all allotted funds in 
accordance with applicable Federal regulations and local education 
financial plans. If a Bureau-operated school and OIEP region or Agency 
support services staff disagree over expenditures, the Bureau-operated 
school must appeal to the Director for a decision.



Sec. 47.8  Who develops the local educational financial plans?

    The local Bureau-operated school supervisor develops the local 
educational financial plan in active consultation with the local school 
board, based on the tentative allotment received.



Sec. 47.9  What are the minimum requirements for the local educational

financial plan?

    (a) The local educational financial plan must include:
    (1) Separate funds for each group receiving a discrete program of 
services is to be provided, including each program funded through the 
Indian School Equalization Program;
    (2) A budget showing the costs projected for each program; and
    (3) A certification provision meeting the requirements of paragraph 
(b) of this section.
    (b) The certification required by paragraph (a)(3) of this section 
must provide for:
    (1) Certification by the chairman of the school board that the plan 
has been ratified in an action of record by the board; and
    (2) Certification by the Education Line Officer that he or she has 
approved the plan as shown in an action overturning the school board's 
rejection or amendment of the plan.



Sec. 47.10  How is the local educational financial plan developed?

    (a) The following deadlines apply to development of the local 
educational financial plan:
    (1) Within 15 days after receiving the tentative allotment, the 
school supervisor must consult with the local school board on the local 
educational financial plan.
    (2) Within 30 days of receiving the tentative allotment, the school 
board must review the local educational financial plan and, by a quorum 
vote, ratify, reject, or amend, the plan.
    (3) Within one week of the school board action under paragraph 
(a)(2) of this section, the supervisor must either:
    (i) Send the plan to the education line officer (ELO), along with 
the official documentation of the school board action; or
    (ii) Appeal the school board's decision to the ELO.
    (4) The ELO will review the local educational financial plan for 
compliance with laws and regulations and may refer the plan to the 
Solicitor's Office for legal review. If the ELO notes any problem with 
the plan, he or she must:
    (i) Notify the local board and local supervisor of the problem 
within two weeks of receiving the plan;
    (ii) Make arrangements to assist the local school supervisor and 
board to correct the problem; and

[[Page 224]]

    (iii) Refer the problem to the Director of the Office of Indian 
Education if it cannot be solved locally.
    (b) When consulting with the school board under paragraph (a)(1) of 
this section, the school supervisor must:
    (1) Discuss the present program of the Bureau-operated school and 
any proposed changes he or she wishes to recommend;
    (2) Give the school board members every opportunity to express their 
own ideas and views on the supervisor recommendations; and
    (3) After the discussions required by paragraphs (b)(1) and (b)(2) 
of this section, present a draft plan to the school board with 
recommendations concerning each of the elements.
    (c) If the school board does not act within the deadline in 
paragraph (a)(2) of this section, the supervisor must send the plan to 
the ELO for ratification. The school board may later amend the plan by a 
quorum vote; the supervisor must transmit this amendment in accordance 
with paragraph (a)(3) of this section.



Sec. 47.11  Can these funds be used as matching funds for other 

Federal programs?

    A Bureau-operated school may use funds that it receives under this 
part as matching funds for other Federal programs.



Sec. 47.12  Information collection.

    Notwithstanding any other provision of law, no person is required to 
respond to, nor shall any person be subject to a penalty for failure to 
comply with, a collection of information subject to the requirements of 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), 
unless that collection of information displays a currently valid Office 
of Management and Budget (OMB) Control Number. This part contains 
collections of information subject to the PRA in Sec. Sec. 47.5, 47.7, 
47.9, and 47.10. These collections have been approved by OMB under 
control number 1076-1063.

[[Page 225]]



                     SUBCHAPTER F_TRIBAL GOVERNMENT





PART 61_PREPARATION OF ROLLS OF INDIANS--Table of Contents




Sec.
61.1 Definitions.
61.2 Purpose.
61.3 Information collection.
61.4 Qualifications for enrollment and the deadline for filing 
          application forms.
61.5 Notices.
61.6 Application forms.
61.7 Filing of application forms.
61.8 Verification forms.
61.9 Burden of proof.
61.10 Review of applications by tribal authorities.
61.11 Action by the Director or Superintendent.
61.12 Appeals.
61.13 Decision of the Assistant Secretary on appeals.
61.14 Preparation, certification and approval of the roll.
61.15 Special instructions.

    Authority: 5 U.S.C. 301; 25 U.S.C. 2 and 9, 1300d-3(b), 1300d-26, 
1401 et seq.

    Effective Date Note: At 72 FR 9840, Mar. 5, 2007, title 25, part 61 
was amended by revising the authority citation, effective Apr. 4, 2007. 
For the convenience of the user, the revised text is set forth as 
follows:
    Authority: 5 U.S.C. 301; 25 U.S.C. 2 and 9, 1300d-3(b), 1401 et 
seq., and Pub. L. 108-270.

    Source: 50 FR 46430, Nov. 8, 1985, unless otherwise noted.



Sec. 61.1  Definitions.

    As used in these regulations:
    Act means any act of Congress authorizing or directing the Secretary 
to prepare a roll of a specific tribe, band, or group of Indians.
    Adopted person means a person whose natural parents' parental rights 
have been given to others to exercise by court order.
    Approved roll means a roll of Indians approved by the Secretary.
    Assistant Secretary means the Assistant Secretary of the Interior 
for Indian Affairs or an authorized representative acting under 
delegated authority.
    Basic roll means the specified allotment, annuity, census or other 
roll designated in the Act or Plan as the basis upon which a new roll is 
to be compiled.
    Commissioner means the Commissioner of Indian Affairs or an 
authorized representative acting under delegated authority.
    Descendant(s) means those persons who are the issue of the ancestor 
through whom enrollment rights are claimed; namely, the children, 
grandchildren, etc. It does not include collateral relatives such as 
brothers, sisters, nieces, nephews, cousins, etc. or adopted children, 
grandchildren, etc.
    Director means the Area Director of the Bureau of Indian Affairs 
area office which has administrative jurisdiction over the local field 
office responsible for administering the affairs of the tribe, band, or 
group for which a roll is being prepared or an authorized representative 
acting under delegated authority.
    Enrollee(s) means persons who have met specific requirements for 
enrollment and whose names appear on a particular roll of Indians.
    Lineal ancestor means an ancestor, living or deceased, who is 
related to a person by direct ascent; namely, the parent, grandparent, 
etc. It does not include collateral relatives such as brothers, sisters, 
aunts, uncles, etc., or adopted parents, grandparents, etc.
    Living means born on or before and alive on the date specified.
    Plan means any effective plan prepared under the provisions of the 
Act of October 19, 1973, Pub. L. 93-134, 87 Stat. 466, as amended, which 
authorizes and directs the Secretary to prepare a roll of a specific 
tribe, band, or group of Indians.
    Secretary means the Secretary of Interior or an authorized 
representative acting under delegated authority.
    Sponsor means any person who files an application for enrollment or 
appeal on behalf of another person.
    Staff Officer means the Enrollment Officer or other person 
authorized to prepare the roll.
    Superintendent means the official or other designated representative 
of the Bureau of Indian Affairs in charge of the field office which has 
immediate administrative responsibility for the

[[Page 226]]

affairs of the tribe, band, or group for which a roll is being prepared.
    Tribal Committee means the body of a federally recognized tribal 
entity vested with final authority to act on enrollment matters.
    Tribal Governing Document means the written organizational statement 
governing the tribe, band, or group of Indians and/or any valid 
document, enrollment ordinance, or resolution enacted thereunder.



Sec. 61.2  Purpose.

    The regulations in this part 61 are to govern the compilation of 
rolls of Indians by the Secretary of the Interior pursuant to statutory 
authority. The regulations are not to apply in the compilation of tribal 
membership rolls where the responsibility for the preparation and 
maintenance of such rolls rests with the tribes.



Sec. 61.3  Information collection.

    The Office of Management and Budget has informed the Department of 
the Interior that the information collection requirements contained in 
Sec. 61.4 need not be reviewed by them under the Paperwork Reduction 
Act (44 U.S.C. 3501 et seq.).

    Effective Date Note: At 72 FR 9840, Mar. 5, 2007, Sec. 61.3 was 
revised, effective Apr. 4, 2007. For the convenience of the user, the 
revised text is set forth as follows:

Sec. 61.3  Information collection.

    The Office of Management and Budget has reviewed and approved the 
information collection for Sec. 61.4(k). The OMB Control Number 
assigned is 1076-0165. A federal agency may not conduct or sponsor, and 
you are not required to respond to, a collection of information unless 
it displays a currently valid OMB Control Number.



Sec. 61.4  Qualifications for enrollment and the deadline for filing

application forms.

    (a) The qualifications which must be met to establish eligibility 
for enrollment and the deadline for filing application forms will be 
included in this part 61 by appropriate amendments to this section; 
except that, when an Act or Plan states the qualifications for 
enrollment and the deadline for filing application forms and specifies 
that the regulations contained in this part 61 will apply, amendment to 
this section will not be required for the procedures contained in this 
part 61 to govern the preparation of the roll; provided further, the 
provisions contained in this part 61 that were in effect when the 
regulations were amended to include paragraphs (r), (s), (w), (x), (y), 
and (z) shall control the preparation of the rolls under paragraphs (r), 
(s), (w), (x), (y), and (z) of this section.
    (b) Pembina Band of Chippewa Indians. (1) Pursuant to section 7(a) 
of the Act of December 31, 1982, Pub. L. 97-403, 96 Stat. 2022, a roll 
is to be prepared and used as the basis for the distribution of an 
apportioned share of judgment funds awarded the Pembina Chippewa Indians 
in dockets numbered 113, 191, 221 and 246 of the Court of Claims of all 
persons who:
    (i) Are of at least \1/4\ degree Pembina Chippewa blood;
    (ii) Are citizens of the United States;
    (iii) Were living on December 31, 1982;
    (iv) Are not members of the Red Lake Band of Chippewa Indians, the 
Turtle Mountain Band of Chippewa Indians, the Chippewa Cree Tribe of the 
Rocky Boy's Reservation, or Minnesota Chippewa Tribe, or the Little 
Shell Band of Chippewa Indians of Montana; and
    (v) Are enrolled or are lineal descendants of persons enrolled:
    (A) As Pembina descendants under the provisions of the Act of July 
29, 1971 (85 Stat. 158), for the disposition of the 1863 Pembina Award, 
or
    (B) On the McCumber roll of the Turtle Mountain Indians of 1892, or
    (C) On the Davis roll of the Turtle Mountain Indians of 1904; or
    (D) As Chippewa on the tentative roll of the Rocky Boy Indians of 
May 30, 1917, or the McLaughlin census report of the Rocky Boy Indians 
of July 7, 1917, or the Roe Cloud Roll of Landless Indians of Montana; 
or
    (vi) Are able to establish Pembina ancestry on the basis of any 
other rolls or records acceptable to the Secretary.
    (2) Application forms for eligibility must be filed with the 
Superintendent, Turtle Mountain Agency, Bureau of Indian Affairs, 
Belcourt, North Dakota 58316, by March 10, 1986. Application

[[Page 227]]

forms filed after that date will be rejected for failure to file on time 
regardless of whether the applicant otherwise meets the qualifications 
for eligibility.
    (3) Each application for enrollment as a member of any of the tribes 
specified in paragraph (b)(1)(iv) of this section, except the Red Lake 
Band of Chippewa Indians, which may be rejected by the tribes shall be 
reviewed by the Superintendent to determine whether the applicant meets 
the qualifications for eligibility as a descendant of the Pembina Band 
of Chippewas under paragraph (b)(1) of this section. Each rejection 
notice shall contain a statement to the effect that the application is 
being given such review.
    (c) Cherokee Band of Shawnee Indians. (1) Pursuant to section 5 of 
the Act of December 20, 1982, Pub. L. 97-372, 96 Stat. 1815, a roll is 
to be prepared and used as the basis for the distribution of an 
apportioned share of judgment funds awarded the Shawnee Tribe in dockets 
64, 335, and 338 by the Indian Claims Commission and in docket 64-A by 
the U.S. Court of Claims of all persons of Cherokee Shawnee ancestry:
    (i) Who were living on December 20, 1982;
    (ii) Who are lineal descendants of the Shawnee Nation as it existed 
in 1854, based on the roll of the Cherokee Shawnee compiled pursuant to 
the Act of March 2, 1889 (25 Stat. 994), or any other records acceptable 
to the Secretary including eligibility to share in the distribution of 
judgment funds awarded the Absentee Shawnee Tribe of Oklahoma on behalf 
of the Shawnee Nation in Indian Claims Commission docket 334-B as a 
Cherokee Shawnee descendant; and
    (iii) Who are not members of the Absentee Shawnee Tribe of Oklahoma 
or the Eastern Shawnee Tribe of Oklahoma.
    (2) Application forms for enrollment must be filed with the 
Director, Muskogee Area Office, Bureau of Indian Affairs, Federal 
Building, Muskogee, Oklahoma 74401, by May 9, 1986. Application forms 
filed after that date will be rejected for inclusion on the roll being 
prepared for failure to file on time regardless of whether the applicant 
otherwise meets the qualifications for enrollment.
    (d) Miami Indians of Indiana. (1) Pursuant to section 3 of the Act 
of December 21, 1982, Pub. L. 97-376, 96 Stat. 1828, a roll is to be 
prepared and used as the basis for the distribution of an apportioned 
share of judgment funds awarded the Miami Tribe of Oklahoma and the 
Miami Indians of Indiana in dockets 124-B and 254 by the U.S. Court of 
Claims of all persons of Miami Indian ancestry:
    (i) Who were living on December 21, 1982;
    (ii) Whose name or the name of a lineal ancestor appears on:
    (A) The roll of Miami Indians of Oklahoma and Indiana prepared 
pursuant to the Act of June 2, 1972 (86 Stat. 199), or
    (B) The roll of Miami Indians of Indiana of June 12, 1895, or
    (C) The roll of ``Miami Indians of Indiana, now living in Kansas, 
Quapaw Agency, I.T., and Oklahoma Territory,'' prepared and completed 
pursuant to the Act of March 2, 1895 (28 Stat. 903), or
    (D) The roll of the Eel River Miami Tribe of Indians of May 27, 
1889, prepared and completed pursuant to the Act of June 29, 1888 (25 
Stat. 223), or
    (E) The roll of the Western Miami Tribe of Indians of June 12, 1891 
(26 Stat. 1001); and
    (iii) Who are not members of the Miami Tribe of Oklahoma.
    (2) Application forms for enrollment must be filed with the 
Director, Muskogee Area Office, Bureau of Indian Affairs, Federal 
Building, Muskogee, Oklahoma 74401, by May 9, 1986. Application forms 
filed after that date will be rejected for inclusion on the roll being 
prepared for failure to file on time regardless of whether the applicant 
otherwise meets the qualifications for enrollment.
    (e) Cow Creek Band of Umpqua Tribe of Indians. (1) Pursuant to 
section 5 of the Cow Creek Band of Umpqua Tribe of Indians Distribution 
of Judgment Funds Act of October 26, 1987, Pub. L. 100-139, a tribal 
membership roll is to be prepared comprised of all persons who are able 
to establish that they are of Cow Creek or other Indian ancestry 
indigenous to the United States based on any rolls or records acceptable 
to the Secretary and were not members of any

[[Page 228]]

other Federally recognized Indian tribe on July 30, 1987; and:
    (i) Who are named on the tribal roll dated September 13, 1980, the 
so-called Interrogatory No. 14 roll;
    (ii) Who are descendants of individuals named on the tribal roll 
dated September 13, 1980, the so-called Interrogatory No. 14 roll, and 
were born on or prior to October 26, 1987; or
    (iii) Who are descendants of individuals who were considered to be 
members of the Cow Creek Band of Umpqua Tribe of Indians for the 
purposes of the treaty entered between such Band and the United States 
on September 19, 1853.
    (2) Application forms for enrollment must be filed with the 
Superintendent, Siletz Agency, Bureau of Indian Affairs, P.O. Box 539, 
Siletz, Oregon 97380 by June 1, 1990. Application forms filed after that 
date will be rejected for inclusion on the tribal membership roll for 
failure to file on time regardless of whether the applicant otherwise 
meets the qualifications for enrollment.
    (f) Cow Creek Band of Umpqua Tribe of Indians descendants. (1) 
Pursuant to section 6(a)(1) of the Cow Creek Band of Umpqua Tribe of 
Indians Distribution of Judgment Funds Act of October 26, 1987, Pub. L. 
100-139, a roll of nontribal members eligible to participate in the 
Higher Education and Vocational Training Program and the Housing 
Assistance Program of the Cow Creek Band of Umpqua Tribe of Indians is 
to be prepared of individuals:
    (i) Who are descended from persons considered members of the Cow 
Creek Band of Umpqua Tribe of Indians for purposes of the treaty entered 
into between such band and the United States on September 19, 1853 (10 
Stat. 1027), as ratified by the Senate on April 12, 1854; and
    (ii) Who did not share or are not descendants of persons who shared 
in the distribution of funds under the Act entitled ``An Act to provide 
for the termination of Federal supervision over the property of the 
Klamath Tribe of Indians located in the State of Oregon and the 
individuals members thereof, and for other purposes,'' approved August 
13, 1954 (25 U.S.C. 564 et seq.), or under the Act entitled ``An Act to 
provide for the termination of Federal supervision over the property of 
certain tribes and bands of Indians located in western Oregon and the 
individual members thereof, and for other purposes,'' approved August 
13, 1954 (25 U.S.C. 691 et seq.).
    (2) Application forms for enrollment must be filed with the 
Superintendent, Siletz Agency, Bureau of Indian Affairs, P. O. Box 539, 
Siletz, Oregon 97380. Upon receipt of an application form, the 
Superintendent shall furnish a copy to the Cow Creek Band of Umpqua 
Tribe of Indians.
    (g) Cow Creek Band of Umpqua Tribe of Indians descendants. (1) 
Pursuant to section 6(a)(2) of the Cow Creek Band of Umpqua Tribe of 
Indians Distribution of Judgment Funds Act of October 26, 1987, Pub. L. 
100-139, a roll of nontribal members eligible to participate in the 
Elderly Assistance Program of the Cow Creek Band of Umpqua Tribe of 
Indians is to be prepared of individuals:
    (i) Who are descended from persons considered members of the Cow 
Creek Band of Umpqua Tribe of Indians for purposes of the treaty entered 
into between such Band and the United States on September 19, 1853 (10 
Stat. 1027), as ratified by the Senate on April 12, 1854;
    (ii) Who did not share or are not descendants of persons who shared 
in the distribution of funds under the Act entitled ``An act to provide 
for the termination of Federal supervision over the property of the 
Klamath Tribe of Indians located in the State of Oregon and the 
individual members thereof, and for other purposes,'' approved August 
13, 1954 (25 U.S.C. 564 et seq.), or under the Act entitled ``An Act to 
provide for the termination of Federal supervision over the property of 
certain tribes and bands of Indians located in western Oregon and the 
individual members thereof, and for other purposes,'' approved August 
13, 1954 (25 U.S.C. 691 et seq.); and
    (iii) Who were 50 years or older as of December 31, 1985.
    (2) Application forms for enrollment must be filed with the 
Superintendent, Siletz Agency, Bureau of Indian Affairs, P. O. Box 539, 
Siletz, Oregon 97380 by April 25, 1988, and with the Cow Creek Band of 
Umpqua Tribe of Indians. Application forms filed after that date will be 
rejected for failure to file

[[Page 229]]

on time regardless of whether the applicant otherwise meets the 
qualifications for eligibility for inclusion on the roll of persons 
eligible to participate in the Elderly Assistance Program, but will be 
considered for inclusion on the roll of persons eligible to participate 
in the Higher Education and Vocation Training Program and the Housing 
Assistance Program. Upon receipt of an application form, the 
Superintendent shall furnish a copy to the Cow Creek Band of Umpqua 
Tribe of Indians.
    (h) Indians of the Hoopa Valley Indian Reservation. Pursuant to 
section 5 of the Hoopa-Yurok Settlement Act of October 31, 1988, Pub. L. 
100-580, a roll of Indians of the Reservation eligible to participate in 
certain settlement provisions is to be prepared of all persons:
    (1) Who were born on or prior to and living on October 31, 1988; and
    (2) Who are citizens of the United States; and
    (3) Who were not, on August 8, 1988, enrolled members of the Hoopa 
Valley Tribe; and
    (4) Who meet the criteria to qualify as an ``Indian of the 
Reservation'' under one of the following standards established by the 
U.S. Court of Claims in its March 31, 1982, decision, and the United 
States Claims Court in its May 14, 1987, and March 1, 1988, decisions in 
the cases of Short v. United States, (Cl. Ct. No. 102-63):
    (i) Standards A-E which are:
    (A) Allottees of land on any part of the Reservation, living on 
October 1, 1949, and lineal descendants of allottees living on October 
1, 1949;
    (B) Persons living on October 1, 1949, and resident on the 
reservation at that time, who have received Reservation benefits or 
services, and hold an assignment, or can make other proof that though 
eligible to receive an allotment, they have not been allotted, and the 
lineal descendants of such persons, living on October 1, 1949;
    (C) Persons living on June 2, 1953, who have at least \1/4\ degree 
Reservation blood, as defined in paragraph (h)(6)(i) of this section, 
have forebears born on the Reservation and were resident on the 
Reservation for 15 years prior to June 2, 1953;
    (D) Persons of at least \1/4\ degree Indian blood, born after 
October 1, 1949, and before August 9, 1963, to a parent who is or would 
have been, when alive a qualified Indian of the Reservation under the 
standards in paragraphs (h)(4)(i) (A), (B) and (C) of this section, or 
has previously been held entitled to recover in the Short cases;
    (E) Persons born on or after August 9, 1963, who are of at least \1/
4\ degree Indian blood, derived exclusively from the qualified parent or 
parents who is or would have been, when alive, a qualified Indian of the 
Reservation under the standards in paragraphs (h)(4)(i) (A), (B) and (C) 
of this section, or has previously been held entitled to recover in the 
Short cases; or
    (ii) Manifest Injustice Standard which is: Persons who do not 
qualify under the standards in paragraph (h)(4)(i) of this section, but 
who it would be manifestly unjust to exclude from enrollment. To qualify 
under the manifest injustice standard, persons must adequately 
demonstrate all of the following:
    (A) A significant degree of Indian blood (at least \1/4\ degree 
Indian blood, and
    (B) Personal connections to the Reservation shown through a 
substantial period of residence on the Reservation (nearly ten years of 
residence), and
    (C) Personal ties to the land of the Reservation and/or ties to the 
land through a lineal ancestor; and
    (5) Who file or have filed on their behalf application forms for 
enrollment with the Superintendent, Northern California Agency, Bureau 
of Indian Affairs, P.O. Box 494879, Redding, California 96049, by April 
10, 1989. Applications filed after that date will not be considered for 
inclusion on the roll regardless of whether the applicant otherwise 
meets the qualifications for enrollment, except for plaintiffs 
determined to be an ``Indian of the Reservation'' in the Short cases, 
who will, if they otherwise meet the requirements of the Act, be 
included on the roll.
    (6) As used in paragraph (h) of this section:
    (i) Reservation blood means the blood of the following tribes or 
bands: Yurok; Hoopa/Hupa; Grouse Creek; Hunstand/Hoonsotton/Hoonsolton; 
Miskut/

[[Page 230]]

Miscotts/Miscolts; Redwood/Chilula; Saiaz/Nongatl/Siahs; Sermaltion; 
South Fork; Tish-tang-atan; Karok; Tolowa; Sinkyone/Sinkiene; Wailake/
Wylacki; Wiyot/Humboldt; and Wintun.
    (ii) Short cases means the cases entitled Jessie Short et al. v. 
United States, (Cl. Ct. No. 102-63); Charlene Ackley v. United States, 
(Cl. Ct. No. 460-78); Bret Aastadt v. United States, (Cl. Ct. No. 146-
85L); and Norman Giffen v. United States, (Cl. Ct. No. 746-85L).
    (i) [Reserved]
    (j) Coquille Tribe of Indians. (1) Pursuant to section 7 of the 
Coquille Restoration Act of June 28, 1989, Pub. L. 101-42, a tribal 
membership roll is to be prepared comprised of persons of Coquille 
Indian ancestry:
    (i) Who were born on or before and living on June 28, 1989;
    (ii) Who possess at least one-eighth (\1/8\) degree or more Indian 
blood;
    (iii) Who are not enrolled members of another federally recognized 
tribe; and
    (iv) Whose names were listed on the Coquille roll prepared pursuant 
to the Act of August 30, 1954 (68 Stat. 979; 25 U.S.C. 771), and 
approved by the Bureau of Indian Affairs on August 29, 1960;
    (v) Whose names were not listed on but who met the requirements to 
be listed on the Coquille roll prepared pursuant to the Act of August 
30, 1954, and approved by the Bureau of Indian Affairs on August 29, 
1960; or
    (vi) Who are lineal descendants of persons, living or dead, 
identified in paragraphs (j)(1)(iv) and (j)(1)(v) of this section.
    (2) To establish eligibility for inclusion on the tribal membership 
roll, all persons must file an application form with the Superintendent, 
Siletz Agency, Bureau of Indian Affairs, P.O. Box 539, Siletz, Oregon 
97380 by January 10, 1991. Application forms filed after that date will 
be rejected for inclusion on the roll being prepared for failure to file 
on time regardless of whether the applicant otherwise meets the 
qualifications for enrollment.
    (3) For the purposes of establishing eligibility under paragraph (j) 
of this section, any available evidence establishing Coquille ancestry 
and the required degree of Indian blood shall be accepted. However, 
information shown on the Coquille roll prepared pursuant to the Act of 
August 30, 1954, shall be accepted as conclusive evidence of Coquille 
ancestry and blood degree information shown on the January 1, 1940, 
census roll of nonreservation Indians of the Grand Ronde-Siletz Agency 
shall be accepted as conclusive evidence in determining degree of Indian 
blood for applicants.
    (4) For the purposes of establishing eligibility under paragraph (j) 
of this section, persons who may be enrolled members of another 
federally recognized tribe or tribes may submit a conditional 
relinquishment of membership document in the other tribe or tribes with 
their application forms. A conditional relinquishment of membership 
document in the other tribe or tribes with their application forms. A 
conditional relinquishment will be accepted by the Superintendent only 
if it is executed by the person himself or herself unless the person is 
legally incompetent, in which case the legal guardian and only the legal 
guardian may execute the conditional relinquishment document. In the 
case of minors, only the parent or legal guardian may execute a 
conditional relinquishment document.
    (k)-(q) [Reserved]
    (r) Mdewakanton and Wahpakoota Tribe of Sioux Indians. (1) All 
lineal descendants of the Mdewakanton and Wahpakoota Tribe of Sioux 
Indians who were born on or prior to and were living on October 25, 
1972, whose names or the name of a lineal ancestor appears on any 
available records and rolls acceptable to the Secretary of the Interior 
and who are not members of the Flandreau Santee Sioux Tribe of South 
Dakota, the Santee Sioux Tribe of Nebraska, the Lower Sioux Indian 
Community at Morton, Minn., the Prairie Island Indian Community at 
Welch, Minn., or the Shakopee Mdewakanton Sioux Community of Minnesota 
shall be entitled to be enrolled under title I, section 101(b) of the 
act of October 25, 1972 (86 Stat. 1168), to share in the distribution of 
funds derived from a judgment awarded the Mississippi Sioux Indians.
    (2) Applications for enrollment must have been filed with the 
Director, Aberdeen Area Office, Bureau of Indian

[[Page 231]]

Affairs, 820 South Main Street, Aberdeen, S. Dak. 57401, and must have 
been received no later than November 1, 1973. Applications received 
after that date will be denied for failure to file in time regardless of 
whether the applicant otherwise meets the requirements for enrollment.
    (3) Each application for enrollment with any of the tribes named in 
paragraph (r)(1) of this section which may be rejected by the tribes 
shall be reviewed by the Director to determine whether the applicant 
meets the requirements for enrollment as a descendant of the Mdewakanton 
and Wahpakoota Tribe of Sioux Indians under paragraph (r)(1) of this 
section. Each rejection notice issued by the tribes shall contain a 
statement to the effect that the application is being given such review.
    (s) Sisseton and Wahpeton Mississippi Sioux Tribe. (1) Persons 
meeting the criteria in this paragraph are entitled to enroll under 25 
U.S.C. 1300d-3(b) to share in the distribution of certain funds derived 
from a judgment awarded to the Mississippi Sioux Indians. To be eligible 
a person must:
    (i) Be a lineal descendent of the Sisseton and Wahpeton Mississippi 
Sioux Tribe;
    (A) Those individuals who applied for enrollment before January 1, 
1998, and whose applications were approved by the Aberdeen Area Director 
before that same date, are deemed to appear in records and rolls 
acceptable to the Secretary or have a lineal ancestor whose name appears 
in these records;
    (B) Those individuals who apply for enrollment after January 1, 
1998, or whose application was not approved by the Aberdeen Area 
Director before that same date, must be able to trace ancestry to a 
specific Sisseton or Wahpeton Mississippi Sioux Tribe lineal ancestor 
who was listed on:
    (1) The 1909 Sisseton and Wahpeton annuity roll;
    (2) The list of Sisseton and Wahpeton Sioux prisoners convicted for 
participating in the outbreak referred to as the ``1862 Minnesota 
Outbreak'';
    (3) The list of Sioux scouts, soldiers, and heirs identified as 
Sisseton and Wahpeton Sioux on the roll prepared under the Act of March 
3, 1891 (26 Stat. 989 et seq., Chapter 543); or
    (4) Any other Sisseton or Wahpeton payment or census roll that 
preceded a roll referred to in paragraphs (s)(1)(i)(B)(1), (2), or (3) 
of this section.
    (ii) Be living on October 25, 1972;
    (iii) Be a citizen of the United States;
    (iv) Not be listed on the membership rolls for the following tribes:
    (A) The Flandreau Santee Sioux Tribe of South Dakota;
    (B) The Santee Sioux Tribe of Nebraska;
    (C) The Lower Sioux Indian Community at Morton, Minnesota;
    (D) The Prairie Island Indian Community at Welch, Minnesota;
    (E) The Shakopee Mdewakanton Sioux Community of Minnesota;
    (F) The Spirit Lake Tribe (formerly known as the Devils Lake Sioux 
of North Dakota);
    (G) The Sisseton-Wahpeton Sioux Tribe of South Dakota; or
    (H) The Assiniboine and Sioux Tribes of the Fort Peck Reservation.
    (v) Not be listed on the roll of Mdewakantan and Wahpakoota lineal 
descendants prepared under 25 U.S.C. 1300d-1(b).
    (2) The initial enrollment application period that closed on 
November 1, 1973, is reopened as of May 24, 1999. The application period 
will remain open until further notice.
    (t)-(v) [Reserved]
    (w) Lower Skagit Tribe of Indians. (1) All persons of Lower Skagit 
ancestry born on or prior to and living on February 18, 1975, who are 
lineal descendants of a member of the tribe as it existed in 1859 based 
on the 1919 Roblin Roll and other records acceptable to the Assistant 
Secretary, shall be entitled to have their names placed on the roll, to 
be prepared and used as the basis to distribute the judgment funds 
awarded the Lower Skagit Tribe in Indian Claims Commission docket 294. 
Proof of Upper Skagit ancestry will not be acceptable as proof of Lower 
Skagit ancestry.
    (2) Applications for enrollment must have been filed with the 
Superintendent, Puget Sound Agency, Bureau of Indian Affairs, 3006 Colby 
Avenue, Everett, Washington 88201, and must have been received by close 
of

[[Page 232]]

business on May 31, 1977. Applications received after that date will be 
denied for failure to file in time regardless of whether the applicant 
otherwise meets the requirements for enrollment.
    (3) Payment of shares will be made in accordance with parts 87 and 
115 of this chapter.
    (x) Kikiallus Tribe of Indians. (1) All persons of Kikiallus 
ancestry born on or prior to and living on February 18, 1975, who are 
lineal descendants of a member of the tribe as it existed in 1859 based 
on the 1919 Roblin Roll and other records acceptable to the Assistant 
Secretary, shall be entitled to have their names placed on the roll, to 
be prepared and used as the basis to distribute the judgment funds 
awarded the Kikiallus Tribe in Indian Claims Commission docket 263.
    (2) Applications for enrollment must have been filed with the 
Superintendent, Puget Sound Agency, Bureau of Indian Affairs, 3006 Colby 
Avenue, Everett, Washington 98021, and must have been received by close 
of business on May 31, 1977. Applications received after that date will 
be denied for failure to file in time regardless of whether the 
applicant otherwise meets the requirements for enrollment.
    (3) Payment of shares will be made in accordance with parts 87 and 
115 of this chapter.
    (y) Swinomish Tribe of Indians. (1) All persons of Swinomish 
ancestry born on or prior to and living on December 10, 1975, who are 
lineal descendants of a member of the tribe as it existed in 1859 based 
on the 1919 Roblin Roll and other records acceptable to the Assistant 
Secretary, shall be entitled to have their names placed on the roll, to 
be prepared and used as the basis to distribute the judgment funds 
awarded the Swinomish Tribe in Indian Claims Commission docket 233.
    (2) Application for enrollment must have been filed with the 
Superintendent, Puget Sound Agency, Bureau of Indian Affairs, 3006 Colby 
Avenue, Everett, Washington 98201, and must have been received by close 
of business on May 31, 1977. Applications received after that date will 
be denied for failure to file in time regardless of whether the 
applicant otherwise meets the requirements for enrollment.
    (3) Payment of shares will be made in accordance with parts 87 and 
115 of this chapter.
    (z) Samish Tribe of Indians. (1) All persons of Samish ancestry born 
on or prior to and living on December 10, 1975, who are lineal 
descendants of a member of the tribe as it existed in 1859 based on any 
records acceptable to the Secretary, shall be entitled to have their 
names placed on the roll to be prepared and used as the basis to 
distribute the judgment funds awarded the Samish Tribe in Indian Claims 
Commission docket 261.
    (2) Applications for enrollment must have been filed with the 
Superintendent, Puget Sound Agency, Bureau of Indian Affairs, 3006 Colby 
Avenue, Everett, Washington 98201, and must have been received by close 
of business on May 31, 1977. Applicants received after that date will be 
denied for failure to file in time regardless of whether the applicant 
otherwise meets the requirements for enrollment.
    (3) Payment of shares will be made in accordance with parts 87 and 
115 of this chapter.

[50 FR 46430, Nov. 8, 1985, as amended at 53 FR 11272, Apr. 6, 1988; 54 
FR 14193, Apr. 7, 1989; 55 FR 7494, Mar. 2, 1990; 55 FR 41519, Oct. 12, 
1990; 56 FR 10806, Mar. 14, 1991; 64 FR 19898, Apr. 23, 1999]

    Effective Date Note: At 72 FR 9840, Mar. 5, 2007, Sec. 61.4 was 
amended by adding a new paragraph (k), effective Apr. 4, 2007. For the 
convenience of the user, the added text is set forth as follows:

Sec. 61.4  Qualifications for enrollment and the deadline for filing 
          application forms.

                                * * * * *

    (k) Western Shoshone Identifiable Group of Indians.
    (1) Under section 3(b)(1) of the Act of July 7, 2004, Pub. L. 108-
270, 118 Stat. 805, the Secretary will prepare a roll of all individuals 
who meet the eligibility criteria established under the Act and who file 
timely applications prior to a date that will be established by a notice 
published in the Federal Register. The roll will be used as the basis 
for distributing the judgment funds awarded by the Indian Claims 
Commission to the Western Shoshone Identifiable Group of Indians in 
Docket No. 326-K. To be eligible a person must:
    (i) Have at least \1/4\ degree of Western Shoshone blood;

[[Page 233]]

    (ii) Be living on July 7, 2004;
    (iii) Be a citizen of the United States; and
    (iv) Not be certified by the Secretary to be eligible to receive a 
per capita payment from any other judgment fund based on an aboriginal 
land claim awarded by the Indian Claims Commission, the United States 
Claims Court, or the United States Court of Federal Claims, that was 
appropriated on or before July 7, 2004.
    (2) Indian census rolls prepared by the Agents or Superintendents at 
Carson or Western Shoshone Agencies between the years of 1885 and 1940, 
and other documents acceptable to the Secretary will be used in 
establishing proof of eligibility of an individual to:
    (i) Be listed on the judgment roll; and
    (ii) Receive a per capita payment under the Western Shoshone Claims 
Distribution Act.
    (3) Application forms for enrollment must be mailed to Tribal 
Government Services, BIA-Western Shoshone, Post Office Box 3838, 
Phoenix, Arizona 85030-3838.
    (4) The application period will remain open until further notice.

                                * * * * *



Sec. 61.5  Notices.

    (a) The Director or Superintendent shall give notice to all 
Directors of the Bureau of Indian Affairs and all Superintendents within 
the jurisdiction of the Director, of the preparation of the roll for 
public display in Bureau field offices. Reasonable efforts shall be made 
to place notices for public display in community buildings, tribal 
buildings, and Indian centers.
    (b) The Director or Superintendent shall, on the basis of available 
residence data, publish, and republish when advisable, notices of the 
preparation of the roll in appropriate locales utilizing media suitable 
to the circumstances.
    (c) The Director or Superintendent shall, when applicable, mail 
notices of the preparation of the roll to previous enrollees or tribal 
members at the last address of record or in the case of tribal members, 
the last address available.
    (d) Notices shall advise of the preparation of the roll and the 
relevant procedures to be followed including the qualifications for 
enrollment and the deadline for filing application forms to be eligible 
for enrollment. The notices shall also state how and where application 
forms may be obtained as well as the name, address, and telephone number 
of a person who may be contacted for further information.



Sec. 61.6  Application forms.

    (a) Application forms to be filed by or for applicants for 
enrollment will be furnished by the Director, Superintendent, or other 
designated persons, upon written or oral request. Each person furnishing 
application forms shall keep a record of the names of individuals to 
whom forms are given, as well as the control numbers of the forms and 
the date furnished. Instructions for completing and filing applications 
shall be furnished with each form. The form shall indicate prominently 
the deadline for filing application forms.
    (b) Among other information, each application form shall contain:
    (1) Certification as to whether application form is for a natural 
child or an adopted child of the parent through whom eligibility is 
claimed.
    (2) If the application form is filed by a sponsor, the name and 
address of sponsor and relationship to applicant.
    (3) A control number for the purpose of keeping a record of forms 
furnished interested individuals.
    (4) Certification that the information given on the application form 
is true to the best of the knowledge and belief of the person filing the 
application. Criminal penalties are provided by statute for knowingly 
filing false information in such applications (18 U.S.C. 1001).
    (c) Application forms may be filed by sponsors on behalf of other 
persons.
    (d) Every applicant or sponsor shall furnish the applicant's mailing 
address on the application form. Thereafter, the applicant or sponsor 
shall promptly notify the Director or Superintendent of any change in 
address, giving appropriate identification of the application, otherwise 
the mailing address as stated on the form shall be acceptable as the 
address of record for all purposes under the regulations in this part 
61.



Sec. 61.7  Filing of application forms.

    (a) Application forms filed by mail must be postmarked no later than 
midnight on the deadline specified. Where there is no postmark date 
showing on the envelope or the postmark date is illegible, application 
forms mailed from

[[Page 234]]

within the United States, including Alaska and Hawaii, received more 
than 15 days and application forms mailed from outside of the United 
States received more than 30 days after the deadline specified in the 
office of the designated Director or Superintendent, will be denied for 
failure to file in time.
    (b) Application forms filed by personal delivery must be received in 
the office of the designated Director or Superintendent no later than 
close of business on the deadline specified.
    (c) If the deadline for filing application forms falls on a 
Saturday, Sunday, legal holiday, or other nonbusiness day, the deadline 
will be the next working day thereafter.
    (d) The provisions of this section shall not apply in the 
preparation of the rolls under paragraphs (r), (s), (w), (x), (y) and 
(z) of Sec. 61.4.



Sec. 61.8  Verification forms.

    If the Director or Superintendent is preparing a roll of Indians by 
adding names of eligible persons to and deleting names of ineligible 
persons from a previously approved roll, and individuals whose names 
appear on the previously approved roll are not required to file 
applications for enrollment, a verification form, to be completed and 
returned, shall be mailed to each previous enrollee using the last 
address of record. The verification form will be used to ascertain the 
previous enrollee's current name and address and that the enrollee is 
living, or if deceased, the enrollee's date of death. Name and/or 
address changes will only be made if the verification form is signed by 
an adult enrollee, if living, or the parent or guardian having legal 
custody of a minor enrollee, or an authorized sponsor. The verification 
form may also be used by any sponsor to notify the Director or 
Superintendent of the date of death of a previous enrollee.



Sec. 61.9  Burden of proof.

    The burden of proof rests upon the applicant or tribal member to 
establish eligibility for enrollment. Documentary evidence such as birth 
certificates, death certificates, baptismal records, copies of probate 
findings, or affidavits, may be used to support claim of eligibility for 
enrollment. Records of the Bureau of Indian Affairs may be used to 
establish eligibility.



Sec. 61.10  Review of applications by tribal authorities.

    (a) If tribal review is applicable, the Director or Superintendent 
shall submit all applications to the Tribal Committee for review and 
recommendations or determinations; except that, in the cases of adopted 
persons where the Bureau of Indian Affairs has assured confidentiality 
to obtain the information necessary to determine the eligibility for 
enrollment of the individual or has the statutory obligation to maintain 
the confidentiality of the information, the confidential information may 
not be released to the Tribal Committee, but the Director or 
Superintendent shall certify as to the eligibility for enrollment of the 
individual to the Tribal Committee.
    (b) The Tribal Committee shall review all applications and make its 
recommendations or determinations in writing stating the reasons for 
acceptance or rejection for enrollment.
    (c) The Tribal Committee shall return the applications to the 
Director or Superintendent with its recommendations or determinations 
and any additional evidence used in determining eligibility for 
enrollment within 30 days of receipt of the applications by the Tribal 
Committee. The Director or Superintendent may grant the Tribal Committee 
additional time, upon request, for its review.
    (d) Acceptance of an individual for enrollment by the Tribal 
Committee does not insure the individual's eligibility to share in the 
distribution of the judgment funds.



Sec. 61.11  Action by the Director or Superintendent.

    (a) The Director or Superintendent shall consider each application, 
all documentation, and when applicable, tribal recommendations or 
determinations.
    (b) The Director or Superintendent, when tribal recommendations or 
determinations are applicable, shall accept the recommendations or 
determinations of the Tribal Committee unless clearly erroneous.

[[Page 235]]

    (1) If the Director or Superintendent does not accept the tribal 
recommendation or determination, the Tribal Committee shall be notified 
in writing, by certified mail, return receipt requested, or by personal 
delivery, of the action and the reasons therefor.
    (2) The Tribal Committee may appeal the decision of the Director or 
Superintendent not to accept the tribal recommendation or determination. 
Such appeal must be in writing and must be filed pursuant to part 62 of 
this chapter.
    (3) Unless otherwise specified by law or in a tribal governing 
document, the determination of the Director or Superintendent shall only 
affect the individual's eligibility to share in the distribution of 
judgment funds.
    (c) The Director or Superintendent, upon determining an individual's 
eligibility, shall notify the individual, parent or guardian having 
legal custody of a minor, or sponsor, as applicable, in writing of the 
decision. If an individual files applications on behalf of more than one 
person, one notice of eligibility or adverse action may be addressed to 
the person who filed the applications. However, the notice must list the 
name of each person involved. Where an individual is represented by a 
sponsor, notification of the sponsor of eligibility or adverse action 
shall be considered to be notification of the individual.
    (1) If the Director or Superintendent determines that the individual 
is eligible, the name of the individual shall be placed on the roll.
    (2) If the Director or Superintendent determines that the individual 
is not eligible, he/she shall notify the individual's parent or guardian 
having legal custody of a minor, or sponsor, as applicable, in writing 
by certified mail, to be received by the addressee only, return receipt 
requested, and shall explain fully the reasons for the adverse action 
and the right to appeal to the Secretary. If correspondence is sent out 
of the United States, registered mail will be used. If a certified or 
registered notice is returned as ``Unclaimed'' the Director or 
Superintendent shall remail the notice by regular mail together with an 
acknowledgment of receipt form to be completed by the addressee and 
returned to the Director or Superintendent. If the acknowledgment of 
receipt is not returned, computation of the appeal period shall begin on 
the date the notice was remailed. Certified or registered notices 
returned for any reason other than ``Unclaimed'' need not be remailed.
    (d) Except as provided in paragraph (c)(2) of this section, a notice 
of adverse action is considered to have been made and computation of the 
appeal period shall begin on the earliest of the following dates:
    (1) Of delivery indicated on the return receipt;
    (2) Of acknowledgment of receipt;
    (3) Of personal delivery; or
    (4) Of the return by the post office of an undelivered certified or 
registered letter.
    (e) In all cases where an applicant is represented by an attorney, 
the attorney shall be recognized as fully controlling the application on 
behalf of the applicant and service on the attorney of any document 
relating to the application shall be considered to be service on the 
applicant. Where an applicant is represented by more than one attorney, 
service upon one of the attorneys shall be sufficient.
    (f) To avoid hardship or gross injustice, the Director or 
Superintendent may waive technical deficiencies in applications or other 
submissions. Failure to file by the deadline does not constitute a 
technical deficiency.



Sec. 61.12  Appeals.

    Appeals from or on behalf of tribal members or applicants who have 
been denied enrollment must be in writing and must be filed pursuant to 
part 62 of this chapter. When the appeal is on behalf of more than one 
person, the name of each person must be listed in the appeal. A copy of 
part 62 of this chapter shall be furnished with each notice of adverse 
action.



Sec. 61.13  Decision of the Assistant Secretary on appeals.

    The decision of the Assistant Secretary on an appeal shall be final 
and conclusive and written notice of the decision shall be given the 
individual,

[[Page 236]]

parent or guardian having legal custody of a minor, or sponsor, as 
applicable. The name of any person whose appeal has been sustained will 
be added to the roll. Unless otherwise specified by law or in a tribal 
governing document, the determination of the Assistant Secretary shall 
only affect the individual's eligibility to share in the distribution of 
the judgment funds.



Sec. 61.14  Preparation, certification and approval of the roll.

    (a) The staff officer shall prepare a minimum of five copies of the 
roll of those persons determined to be eligible for enrollment. The roll 
shall contain for each person a roll number, name, address, sex, date of 
birth, date of death, when applicable, and when required by law, degree 
of Indian blood, and, in the remarks column, when applicable, the basic 
roll number, date of the basic roll, name and relationship of ancestor 
on the basic roll through whom eligibility was established.
    (b) A certificate shall be attached to the roll by the staff officer 
or Superintendent certifying that to the best of his/her knowledge and 
belief the roll contains only the names of those persons who were 
determined to meet the qualifications for enrollment.
    (c) The Director shall approve the roll.



Sec. 61.15  Special instructions.

    To facilitate the work of the Director or Superintendent, the 
Assistant Secretary may issue special instructions not inconsistent with 
the regulations in this part 61.



PART 62_ENROLLMENT APPEALS--Table of Contents




Sec.
62.1 Definitions.
62.2 Purpose.
62.3 Information collection.
62.4 Who may appeal.
62.5 An appeal.
62.6 Filing of an appeal.
62.7 Burden of proof.
62.8 Advising the tribal committee.
62.9 Action by the Superintendent.
62.10 Action by the Director.
62.11 Action by the Assistant Secretary.
62.12 Special instructions.

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

    Source: 52 FR 30160, Aug. 13, 1987, unless otherwise noted.



Sec. 62.1  Definitions.

    As used in these regulations:
    Assistant Secretary means the Assistant Secretary of the Interior 
for Indian Affairs or an authorized representative acting under 
delegated authority.
    Bureau means the Bureau of Indian Affairs of the Department of the 
Interior.
    Commissioner means the Commissioner of Indian Affairs or an 
authorized representative acting under delegated authority.
    Department means the Department of the Interior.
    Director means the Area Director of the Bureau of Indian Affairs 
area office which has administrative jurisdiction over the local field 
office responsible for administering the affairs of a tribe, band, or 
group of Indians or an authorized representative acting under delegated 
authority.
    Secretary means the Secretary of the Interior or an authorized 
representative acting under delegate authority.
    Sponsor means any authorized person, including an attorney, who 
files an appeal on behalf of another person.
    Superintendent means the official or other designated representative 
of the Bureau of Indian Affairs in charge of the field office which has 
immediate administrative responsibility with respect to the affairs of a 
tribe, band, or group of Indians or an authorized representative acting 
under delegated authority.
    Tribal committee means the body of a federally recognized tribal 
entity vested with final authority to act on enrollment matters.
    Tribal governing document means the written organizational statement 
governing a tribe, band or group of Indians and/or any valid document, 
enrollment ordinance or resolution enacted thereunder.
    Tribal member means a person who meets the requirements for 
enrollment in a tribal entity and has been duly enrolled.



Sec. 62.2  Purpose.

    (a) The regulations in this part are to provide procedures for the 
filing and

[[Page 237]]

processing of appeals from adverse enrollment actions by Bureau 
officials.
    (b) The regulations in this part are not applicable and do not 
provide procedures for the filing of appeals from adverse enrollment 
actions by tribal committees, unless:
    (1) The adverse enrollment action is incident to the preparation of 
a tribal roll subject to Secretarial approval; or
    (2) An appeal to the Secretary is provided for in the tribal 
governing document.



Sec. 62.3  Information collection.

    In accordance with the Office of Management and Budget regulations 
contained in 5 CFR 1320.3, approval of the information collection 
requirements contained in this part is not required.



Sec. 62.4  Who may appeal.

    (a) A person who is the subject of an adverse enrollment action may 
file or have filed on his/her behalf an appeal. An adverse enrollment 
action is:
    (1) The rejection of an application for enrollment by a Bureau 
official incident to the preparation of a roll for Secretarial approval;
    (2) The removal of a name from a tribal roll by a Bureau official 
incident to review of the roll for Secretarial approval;
    (3) The rejection of an application for enrollment or the 
disenrollment of a tribal member by a tribal committee when the tribal 
governing document provides for an appeal of the action to the 
Secretary;
    (4) The change in degree of Indian blood by a tribal committee which 
affects a tribal member when the tribal governing document provides for 
an appeal of the action to the Secretary;
    (5) The change in degree of Indian blood by a Bureau official which 
affects an individual; and
    (6) The certification of degree of Indian blood by a Bureau official 
which affects an individual.
    (b) A tribal committee may file an appeal as provided for in Sec. 
61.11 of this chapter.
    (c) A sponsor may file an appeal on behalf of another person who is 
subject to an adverse enrollment action.



Sec. 62.5  An appeal.

    (a) An appeal must be in writing and must be filed with the Bureau 
official designated in the notification of an adverse enrollment action, 
or in the absence of a designated official, with the Bureau official who 
issued the notification of an adverse enrollment action; or when the 
notification of an adverse action is made by a tribal committee with the 
Superintendent.
    (b) An appeal may be on behalf of more than one person. However, the 
name of each appellant must be listed in the appeal.
    (c) An appeal filed by mail or filed by personal delivery must be 
received in the office of the designated Bureau official or of the 
Bureau official who issued the notification of an adverse enrollment 
action by close of business within 30 days of the notification of an 
adverse enrollment action, except when the appeal is mailed from outside 
the United States, in which case the appeal must be received by the 
close of business within 60 days of the notification of an adverse 
enrollment action.
    (d) The appellant or sponsor shall furnish the appellant's mailing 
address in the appeal. Thereafter, the appellant or sponsor shall 
promptly notify the Bureau official with whom the appeal was filed of 
any change of address, otherwise the address furnished in the appeal 
shall be the address of record.
    (e) An appellant or sponsor may request additional time to submit 
supporting evidence. A period considered reasonable for such submissions 
may be granted by the Bureau official with whom the appeal is filed. 
However, no additional time will be granted for the filing of the 
appeal.
    (f) In all cases where an appellant is represented by a sponsor, the 
sponsor shall be recognized as fully controlling the appeal on behalf of 
the appellant. Service of any document relating to the appeal shall be 
on the sponsor and shall be considered to be service on the appellant. 
Where an appellant is represented by more than one sponsor, service upon 
one of the sponsors shall be sufficient.



Sec. 62.6  Filing of an appeal.

    (a) Except as provided in paragraph (b) of this section, a 
notification of an

[[Page 238]]

adverse enrollment action will be mailed to the address of record or the 
last available address and will be considered to have been made and 
computation of the appeal period shall begin on:
    (1) The date of delivery indicated on the return receipt when notice 
of the adverse enrollment action has been sent by certified mail, return 
receipt requested; or
    (2) Ten (10) days after the date of the decision letter to the 
individual when notice of the adverse enrollment action has not been 
sent by certified mail return receipt requested and the letter has not 
been returned by the post office; or
    (3) The date the letter is returned by the post office as 
undelivered whether the notice of the adverse enrollment action has been 
sent by certified mail return receipt requested or by regular mail.
    (b) When notification of an adverse enrollment action is under the 
regulations contained in part 61 of this chapter, computation of the 
appeal period shall be in accordance with Sec. 61.11.
    (c) In computing the 30 or 60 day appeal period, the count begins 
with the day following the notification of an adverse enrollment action 
and continues for 30 or 60 calendar days. If the 30th or 60th day falls 
on a Saturday, Sunday, legal holiday, or other nonbusiness day, the 
appeal period will end on the first working day thereafter.



Sec. 62.7  Burden of proof.

    (a) The burden of proof is on the appellant or sponsor. The appeal 
should include any supporting evidence not previously furnished and may 
include a copy or reference to any Bureau or tribal records having a 
direct bearing on the action.
    (b) Criminal penalties are provided by statute for knowingly filing 
false or fraudulent information to an agency of the U.S. government (18 
U.S.C. 1001).



Sec. 62.8  Advising the tribal committee.

    Whenever applicable, the Superintendent or Director shall notify the 
tribal committee of the receipt of the appeal and shall give the tribal 
committee the opportunity to examine the appeal and to present such 
evidence as it may consider pertinent to the action being appealed. The 
tribal committee shall have not to exceed 30 days from receipt of 
notification of the appeal in which to present in writing such 
statements as if may deem pertinent, supported by any tribal records 
which have a bearing on the case. The Director or Superintendent may 
grant the tribal committee additional time, upon request, for its 
review.



Sec. 62.9  Action by the Superintendent.

    When an appeal is from an adverse enrollment action taken by a 
Superintendent or tribal committee, the Superintendent shall acknowledge 
in writing receipt of the appeal and shall forward the appeal to the 
Director together with any relevant information or records; the 
recommendations of the tribal committee, when applicable; and his/her 
recommendations on the appeal.



Sec. 62.10  Action by the Director.

    (a) Except as provided in paragraph (c) of this section, when an 
appeal is from an adverse enrollment action taken by a Superintendent or 
tribal committee, the Director will consider the record as presented 
together with such additional information as may be considered 
pertinent. Any additional information relied upon shall be specifically 
identified in the decision. The Director shall make a decision on the 
appeal which shall be final for the Department and which shall so state 
in the decision. The appellant or sponsor will be notified in writing of 
the decision. Provided that, the Director may waive his/her authority to 
make a final decision and forward the appeal to the Assistant Secretary 
for final action.
    (b) When an appeal is from an adverse enrollment action taken by a 
Director, the Director shall acknowledge in writing receipt of the 
appeal and shall forward the appeal to the Assistant Secretary for final 
action together with any relevant information or records; the 
recommendations of the tribal committee, when applicable; and his/her 
recommendations.
    (c) The Director shall forward the appeal to the Assistant Secretary 
for final action together with any relevant

[[Page 239]]

information or records; the recommendations of the tribal committee, 
when applicable; and his/her recommendations when the adverse enrollment 
action which is being appealed is either:
    (1) The change in degree of Indian blood by a tribal committee which 
affects a tribal member and the tribal governing document provides for 
an appeal of the action to the Secretary; or
    (2) The change in degree of Indian blood by a Bureau official which 
affects an individual.



Sec. 62.11  Action by the Assistant Secretary.

    The Assistant Secretary will consider the record as presented, 
together with such additional information as may be considered 
pertinent. Any additional information relied upon shall be specifically 
identified in the decision. The Assistant Secretary shall make a 
decision on the appeal which shall be final for the Department and which 
shall so state in the decision. The appellant or sponsor will be 
notified in writing of the decision.



Sec. 62.12  Special instructions.

    To facilitate the work of the Director, the Assistant Secretary may 
issue special instructions not inconsistent with the regulations in this 
part 62.



PART 63_INDIAN CHILD PROTECTION AND FAMILY VIOLENCE PREVENTION--Table of

Contents




               Subpart A_Purpose, Policy, and Definitions

Sec.
63.1 Purpose.
63.2 Policy.
63.3 Definitions.
63.4 Information collection.
63.5-63.9 [Reserved]

 Subpart B_Minimum Standards of Character and Suitability for Employment

63.10 Purpose.
63.11 What is a determination of suitability for employment and 
          efficiency of service?
63.12 What are minimum standards of character?
63.13 What does the Indian Child Protection and Family Violence 
          Prevention Act require of the Bureau of Indian Affairs and 
          Indian tribes or tribal organizations receiving funds under 
          the Indian Self-Determination and Education Assistance Act or 
          the Tribally Controlled Schools Act?
63.14 What positions require a background investigation and 
          determination of suitability for employment or retention?
63.15 What questions should an employer ask?
63.16 Who conducts the background investigation and prepares the 
          determination of suitability for employment?
63.17 How does an employer determine suitability for employment and 
          efficiency of service?
63.18 Are the requirements for Bureau of Indian Affairs adjudication 
          different from the requirements for Indian tribes and tribal 
          organizations?
63.19 When should an employer deny employment or dismiss an employee?
63.20 What should an employer do if an individual has been charged with 
          an offense but the charge is pending or no disposition has 
          been made by a court?
63.21 Are there other factors that may disqualify an applicant, 
          volunteer or employee from placement in a position which 
          involves regular contact with or control over Indian children?
63.22 Can an employer certify an individual with a prior conviction or 
          substantiated misconduct as suitable for employment?
63.23 What rights does an applicant, volunteer or employee have during 
          this process?
63.24 What protections must employers provide to applicants, volunteers 
          and employees?
63.25-63.29 [Reserved]

Subpart C_Indian Child Protection and Family Violence Prevention Program

63.30 What is the purpose of the Indian child protection and family 
          violence prevention program?
63.31 Can both the Bureau of Indian Affairs and tribes operate Indian 
          child protection and family violence prevention programs?
63.32 Under what authority are Indian child protection and family 
          violence prevention program funds awarded?
63.33 What must an application for Indian child protection and family 
          violence prevention program funds include?
63.34 How are Indian child protection and family violence prevention 
          program funds distributed?
63.35 How may Indian child protection and family violence prevention 
          program funds be used?
63.36 What are the special requirements for Indian child protection and 
          family violence prevention programs?

[[Page 240]]

63.37-63.50 [Reserved]

    Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 13, 200, 3201 et seq.; 42 
U.S.C. 13041.

    Source: 61 FR 32274, June 21, 1996, unless otherwise noted.



               Subpart A_Purpose, Policy, and Definitions



Sec. 63.1  Purpose.

    The purpose of these regulations is to prescribe minimum standards 
of character and suitability for employment for individuals whose duties 
and responsibilities allow them regular contact with or control over 
Indian children, and to establish the method for distribution of funds 
to support tribally operated programs to protect Indian children and 
reduce the incidents of family violence in Indian country as authorized 
by the Indian Child Protection and Family Violence Prevention Act of 
1990, Pub. L. 101-630, 104 Stat. 4544, 25 U.S.C. 3201 3211.



Sec. 63.2  Policy.

    In enacting the Indian Child Protection and Family Violence 
Prevention Act, the Congress recognized there is no resource more vital 
to the continued existence and integrity of Indian tribes than their 
children and that the United States has a direct interest, as trustee, 
in protecting Indian children who are members of, or are eligible for 
membership in, an Indian tribe. The minimum standards of character and 
suitability of employment for individuals ensure that Indian children 
are protected, and the Indian child protection and family violence 
prevention programs will emphasize the unique values of Indian culture 
and community involvement in the prevention and treatment of child 
abuse, child neglect and family violence.



Sec. 63.3  Definitions.

    Bureau means the Bureau of Indian Affairs of the Department of the 
Interior;
    Child means an individual who is not married, and has not attained 
18 years of age.
    Child abuse includes but is not limited to any case in which a child 
is dead, or exhibits evidence of skin bruising, bleeding, malnutrition, 
failure to thrive, burns, fracture of any bone, subdural hematoma, or 
soft tissue swelling, and this condition is not justifiably explained or 
may not be the product of an accidental occurrence; and any case in 
which a child is subjected to sexual assault, sexual molestation, sexual 
exploitation, sexual contact, or prostitution.
    Child neglect includes but is not limited to, negligent treatment or 
maltreatment of a child by a person, including a person responsible for 
the child's welfare, under circumstances which indicate that the child's 
health or welfare is harmed or threatened.
    Crimes against persons are defined by local law. Adjudicating 
officers must contact local law enforcement agencies to determine if the 
crime for which an applicant or employee was found guilty (or entered a 
plea of nolo contendere or guilty) is defined as a crime against 
persons.
    Family violence means any act, or threatened act, of violence, 
including any forceful detention of an individual, which results, or 
threatens to result, in physical or mental injury, and is committed by 
an individual against another individual to whom such person is, or was, 
related by blood or marriage or otherwise legally related, or with whom 
such person is, or was, residing, or with whom such person has, or had, 
intimate or continuous social contact and household access.
    Indian means any individual who is a member of an Indian tribe.
    Indian child means any unmarried person who is under age eighteen 
and is either a member of an Indian tribe or eligible for membership in 
an Indian tribe and is the biological child of a member of an Indian 
tribe.
    Indian country means:
    (1) All land within the limits of any Indian reservation under the 
jurisdiction of the United States Government, notwithstanding the 
issuance of any patent, and, including rights-of-way running through the 
reservation;
    (2) All dependent Indian communities within the borders of the 
United States whether within the original or subsequently acquired 
territory thereof; and,

[[Page 241]]

    (3) All Indian allotments, the Indian titles to which have not been 
extinguished, including rights-of-way running through the same. Unless 
otherwise indicated, the term ``Indian country'' is used instead of 
``Indian reservation'' for consistency.
    Indian reservation means any Indian reservation, public domain 
Indian allotment, former Indian reservation in Oklahoma, or lands held 
by incorporated Native groups, regional corporations, or village 
corporations under the provisions of the Alaska Native Claims Settlement 
Act (43 U.S.C. 1601 et seq.).
    Indian tribe means any Indian tribe, band, nation, or other 
organized group or community, including any Alaska Native village or 
regional or village corporation as defined in or established pursuant to 
the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.) which 
is recognized as eligible for the special programs and services provided 
by the United States to Indians because of their status as Indians.
    Inter-tribal consortium means a partnership between an Indian tribe 
or tribal organization of an Indian tribe, and one or more Indian tribes 
or tribal organizations of one or more Indian tribes.
    Local child protective services agency is an agency of the Federal 
Government, state, or Indian tribe that has the primary responsibility 
for child protection on any Indian reservation, or within any community 
in Indian country.
    Local law enforcement agency is that Federal, tribal, or state law 
enforcement agency that has primary responsibility for the investigation 
of an instance of alleged child abuse within the involved Indian 
jurisdiction.
    Must is used in place of shall and indicates a mandatory or 
imperative act or requirement.
    Person responsible for a child's welfare is any person who has legal 
or other recognized duty for the care and safety of a child, and may 
include any employee or volunteer of a children's residential facility, 
and any person providing out-of-home care, education, or services to 
children.
    Related assistance means the counseling and self-help services for 
abusers, victims, and dependents in family violence situations; 
referrals for appropriate health-care services (including alcohol and 
drug abuse treatment); and may include food, clothing, child care, 
transportation, and emergency services for victims of family violence 
and their dependents.
    Secretary means the Secretary of the Interior.
    Service means the Indian Health Service of the Department of Health 
and Human Services.
    Shelter means the temporary refuge and related assistance in 
compliance with applicable Federal and tribal laws and regulations 
governing the provision, on a regular basis, of shelter, safe homes, 
meals, and related assistance to victims of family violence or their 
dependents.
    Tribal organization means the recognized governing body of any 
Indian tribe; any legally established organization of Indians which is 
controlled, sanctioned, or chartered by such governing body or which is 
democratically elected by the adult members of the Indian community to 
be served by such organization and which includes the maximum 
participation of Indians in all phases of its activities: Provided, That 
in any case where a contract is let, a grant is awarded, or funding 
agreement is made to an organization to perform services benefitting 
more than one Indian tribe, the approval of each such Indian tribe must 
be a prerequisite to the letting or making of such contract, grant, or 
funding agreement.



Sec. 63.4  Information collection.

    The information collection requirement contained in Sec. 63.15, 
Sec. 63.33 and Sec. 63.34 will be approved by the Office of Management 
and Budget under the Paperwork Reduction Act of 1995, 44 U.S.C. 3507(d), 
and assigned clearance number ----------.

[[Page 242]]



Sec. Sec. 63.5-63.9  [Reserved]



 Subpart B_Minimum Standards of Character and Suitability for Employment



Sec. 63.10  Purpose.

    The purpose of this part is to establish:
    (a) Procedures for determining suitability for employment and 
efficiency of service as mandated by the Indian Child Protection and 
Family Violence Prevention Act; and
    (b) Minimum standards of character to ensure that individuals having 
regular contact with or control over Indian children have not been 
convicted of certain types of crimes or acted in a manner that placed 
others at risk or raised questions about their trustworthiness.



Sec. 63.11  What is a determination of suitability for employment 

and efficiency of service?

    (a) Determinations of suitability measure the fitness or eligibility 
of an applicant, volunteer, or employee for a particular position. 
Suitability for employment does not evaluate an applicant's education, 
skills, knowledge, experience, etc. Rather, it requires that the 
employer investigate the background of each applicant, volunteer, and 
employee to:
    (1) Determine the degree of risk the applicant, volunteer, or 
employee brings to the position; and
    (2) Certify that the applicant's, volunteer's, or employee's past 
conduct would not interfere with his/her performance of duties, nor 
would it create an immediate or long-term risk for any Indian child.
    (b) Efficiency of service is the employer's verification that the 
applicant or employee is able to perform the duties and responsibilities 
of the position, and his/her presence on the job will not inhibit other 
employees or the agency from performing their functions.



Sec. 63.12  What are minimum standards of character?

    Minimum standards of character are established by an employer and 
refer to identifiable character traits and past conduct. An employer may 
use character traits and past conduct to determine whether an applicant, 
volunteer, or employee can effectively perform the duties of a 
particular position without risk of harm to others. Minimum standards of 
character ensure that no applicant, volunteer, or employee will be 
placed in a position with regular contact with or control over Indian 
children if he/she has been found guilty of or entered a plea of nolo 
contendere or guilty to any offense under Federal, state, or tribal law 
involving crimes of violence, sexual assault, sexual molestation, sexual 
exploitation, sexual contact or prostitution, or crimes against persons.



Sec. 63.13  What does the Indian Child Protection and Family Violence

Prevention Act require of the Bureau of Indian Affairs and Indian 
tribes or tribal organizations receiving funds under the Indian Self-
          Determination and Education Assistance Act or the Tribally 
          Controlled Schools Act?

    (a) The Bureau of Indian Affairs must compile a list of all 
authorized positions which involve regular contact with or control over 
Indian children; investigate the character of each individual who is 
employed, or is being considered for employment; and, prescribe minimum 
standards of character which each individual must meet to be appointed 
to such positions.
    (b) All Indian tribes or tribal organizations receiving funds under 
the authority of the Indian Self-Determination and Education Assistance 
Act or the Tribally Controlled Schools Act of 1988 must conduct a 
background investigation for individuals whose duties and 
responsibilities would allow them regular contact with or control over 
Indian children, and employ only individuals who meet standards of 
character that are no less stringent than those prescribed for the 
Bureau of Indian Affairs.



Sec. 63.14  What positions require a background investigation and

determination of suitability for employment or retention?

    All positions that allow an applicant, employee, or volunteer 
regular contact with or control over Indian children

[[Page 243]]

are subject to a background investigation and determination of 
suitability for employment.



Sec. 63.15  What questions should an employer ask?

    Employment applications must:
    (a) Ask whether the applicant, volunteer, or employee has been 
arrested or convicted of a crime involving a child, violence, sexual 
assault, sexual molestation, sexual exploitation, sexual contact or 
prostitution, or crimes against persons;
    (b) Ask the disposition of the arrest or charge;
    (c) Require that an applicant, volunteer or employee sign, under 
penalty of perjury, a statement verifying the truth of all information 
provided in the employment application; and
    (d) Inform the applicant, volunteer or employee that a criminal 
history record check is a condition of employment and require the 
applicant, volunteer or employee to consent, in writing, to a record 
check.



Sec. 63.16  Who conducts the background investigation and prepares 

the determination of suitability for employment?

    (a) The Bureau of Indian Affairs must use the United States Office 
of Personnel Management (OPM) to conduct background investigations for 
Federal employees. The BIA must designate qualified security personnel 
to adjudicate the results of background investigations.
    (b) Indian tribes and tribal organizations may conduct their own 
background investigations, contract with private firms, or request the 
OPM to conduct an investigation. The investigation should cover the past 
five years of the individual's employment, education, etc.



Sec. 63.17  How does an employer determine suitability for employment 

and efficiency of service?

    (a) Adjudication is the process employers use to determine 
suitability for employment and efficiency of service. The adjudication 
process protects the interests of the employer and the rights of 
applicants and employees. Adjudication requires uniform evaluation to 
ensure fair and consistent judgment.
    (b) Each case is judged on its own merits. All available 
information, both favorable and unfavorable, must be considered and 
assessed in terms of accuracy, completeness, relevance, seriousness, 
overall significance, and how similar cases have been handled in the 
past.
    (c) An adjudicating official conducts the adjudication. Each Federal 
agency, Indian tribe, or tribal organization must appoint an 
adjudicating official, who must first have been the subject of a 
favorable background investigation.
    (1) Indian tribes and tribal organizations must ensure that persons 
charged with the responsibility for adjudicating employee background 
investigations are well-qualified and trained.
    (2) Indian tribes and tribal organizations should also ensure that 
individuals who are not trained to adjudicate these types of 
investigations are supervised by someone who is experienced and receive 
the training necessary to perform the task.
    (d) Each adjudicating official must be thoroughly familiar with all 
laws, regulations, and criteria involved in making a determination for 
suitability.
    (e) The adjudicating official must review the background 
investigation to determine the character, reputation, and 
trustworthiness of the individual. At a minimum, the adjudicating 
official must:
    (1) Review each security investigation form and employment 
application and compare the information provided;
    (2) Review the results of written record searches requested from 
local law enforcement agencies, former employers, former supervisors, 
employment references, and schools; and
    (3) Review the results of the fingerprint charts maintained by the 
Federal Bureau of Investigation or other law enforcement information 
maintained by other agencies.
    (f) Relevancy is a key objective in evaluating investigative data. 
The adjudicating official must consider prior conduct in light of:
    (1) The nature and seriousness of the conduct in question;
    (2) The recency and circumstances surrounding the conduct in 
question;
    (3) The age of the individual at the time of the incident;

[[Page 244]]

    (4) Societal conditions that may have contributed to the nature of 
the conduct;
    (5) The probability that the individual will continue the type of 
behavior in question; and,
    (6) The individual's commitment to rehabilitation and a change in 
the behavior in question.



Sec. 63.18  Are the requirements for Bureau of Indian Affairs 

adjudication different from the requirements for Indian tribes 
and tribal organizations?

    Yes.
    (a) In addition to the minimum requirements for background 
investigations found in Sec. 63.12, Bureau of Indian Affairs' 
adjudicating officials must review the OPM National Agency Check and 
Inquiries which includes a search of the OPM Security/Suitability 
Investigations Index (SII) and the Defense Clearance and Investigations 
Index (DCII), and any additional standards which may be established by 
the BIA.
    (b) All Bureau of Indian Affairs employees who have regular contact 
with or control over Indian children must be reinvestigated every five 
years during their employment in that or any other position which allows 
regular contact with or control over Indian children.
    (c) Indian tribes and tribal organizations may adopt these 
additional requirements but are not mandated to do so by law.



Sec. 63.19  When should an employer deny employment or dismiss an

employee?

    (a) An employer must deny employment or dismiss an employee when an 
individual has been found guilty of or entered a plea of guilty or nolo 
contendere to any Federal, state or tribal offense involving a crime of 
violence, sexual assault, sexual molestation, child exploitation, sexual 
contact, prostitution, or crimes against persons.
    (b) An employer may deny employment or dismiss an employee when an 
individual has been convicted of an offense involving a child victim, a 
sex crime, or a drug felony.

[61 FR 32274, June 21, 1996, as amended at 64 FR 66771, Nov. 30, 1999]



Sec. 63.20  What should an employer do if an individual has been 

charged with an offense but the charge is pending or no disposition 
has been made by a court?

    (a) The employer may deny the applicant employment until the charge 
has been resolved.
    (b) The employer may deny the employee any on-the-job contact with 
children until the charge is resolved.
    (c) The employer may detail or reassign the employee to other duties 
that do not involve contact with children.
    (d) The employer may place the employee on administrative leave 
until the court has disposed of the charge.



Sec. 63.21  Are there other factors that may disqualify an applicant, 

volunteer or employee from placement in a position which involves 
regular contact with or 
          control over Indian children?

    Yes.
    (a) An applicant, volunteer, or employee may be disqualified from 
consideration or continuing employment if it is found that:
    (1) The individual's misconduct or negligence interfered with or 
affected a current or prior employer's performance of duties and 
responsibilities.
    (2) The individual's criminal or dishonest conduct affected the 
individual's performance or the performance of others.
    (3) The individual made an intentional false statement, deception or 
fraud on an examination or in obtaining employment.
    (4) The individual has refused to furnish testimony or cooperate 
with an investigation.
    (5) The individual's alcohol or substance abuse is of a nature and 
duration that suggests the individual could not perform the duties of 
the position or would directly threaten the property or safety of 
others.
    (6) The individual has illegally used narcotics, drugs, or other 
controlled substances without evidence of substantial rehabilitation.
    (7) The individual knowingly and willfully engaged in an act or 
activities designed to disrupt government programs.

[[Page 245]]

    (b) An individual must be disqualified for Federal employment if any 
statutory or regulatory provision would prevent his/her lawful 
employment.



Sec. 63.22  Can an employer certify an individual with a prior 

conviction or substantiated misconduct as suitable for employment?

    (a) The Bureau of Indian Affairs must use Federal adjudicative 
standards which allow the BIA to certify that an individual is suitable 
for employment in a position that does not involve regular contact with 
or control over Indian children. The adjudicating officer must determine 
that the individual's prior conduct will not interfere with the 
performance of duties and will not create a potential for risk to the 
safety and well-being of Indian children.
    (b) Indian tribes and tribal organizations must identify those 
positions which permit contact with or control over Indian children and 
establish standards to determine suitability for employment. Those 
standards should then be used to determine whether an individual is 
suitable for employment in a position that permits contact with or 
control over Indian children. If not, the individual may only be placed 
in a position that does not permit contact with or control over Indian 
children.



Sec. 63.23  What rights does an applicant, volunteer or employee have 

during this process?

    (a) The applicant, volunteer, or employee must be provided an 
opportunity to explain, deny, or refute unfavorable and incorrect 
information gathered in an investigation, before the adjudication is 
final. The applicant, volunteer, or employee should receive a written 
summary of all derogatory information and be informed of the process for 
explaining, denying, or refuting unfavorable information.
    (b) Employers and adjudicating officials must not release the actual 
background investigative report to an applicant, volunteer, or employee. 
However, they may issue a written summary of the derogatory information.
    (c) The applicant, volunteer, or employee who is the subject of a 
background investigation may obtain a copy of the reports from the 
originating (Federal, state, or other tribal) agency and challenge the 
accuracy and completeness of any information maintained by that agency.
    (d) The results of an investigation cannot be used for any purpose 
other than to determine suitability for employment in a position that 
involves regular contact with or control over Indian children.
    (e) Investigative reports contain information of a highly personal 
nature and should be maintained confidentially and secured in locked 
files. Investigative reports should be seen only by those officials who 
in performing their official duties need to know the information 
contained in the report.



Sec. 63.24  What protections must employers provide to applicants, 

volunteers and employees?

    (a) Indian tribes and tribal organizations must comply with the 
privacy requirements of any Federal, state, or other tribal agency 
providing background investigations. Indian tribes and tribal 
organizations must establish and comply with personnel policies that 
safeguard information derived from background investigations.
    (b) The Bureau of Indian Affairs must comply with all policies, 
procedures, criteria, and guidance contained in the Bureau of Indian 
Affairs Manual or other appropriate guidelines.
    (c) Federal agencies exercising authority under this part by 
delegation from OPM must comply with OPM policies, procedures, criteria, 
and guidance.



Sec. Sec. 63.25-63.29  [Reserved]



Subpart C_Indian Child Protection and Family Violence Prevention Program



Sec. 63.30  What is the purpose of the Indian child protection and 

family violence prevention program?

    The purpose of this program is to develop tribally-operated programs 
to protect Indian children and reduce the incidence of family violence 
on Indian reservations.

[[Page 246]]



Sec. 63.31  Can both the Bureau of Indian Affairs and tribes operate 

Indian child protection and family violence prevention programs?

    Yes. However, tribes are encouraged to develop and operate programs 
to protect Indian children and reduce the incidence of family violence 
in Indian country.



Sec. 63.32  Under what authority are Indian child protection and 

family violence prevention program funds awarded?

    The Secretary is authorized to enter into contracts with Indian 
tribes, tribal organizations, or tribal consortia pursuant to the Indian 
Self-Determination and Education Assistance Act, as amended, 25 U.S.C. 
450 et seq., for the development and establishment of Indian child 
protection and family violence prevention programs. This includes 
compacting with tribes under the Self-Governance program procedures.



Sec. 63.33  What must an application for Indian child protection

and family violence prevention program funds include?

    In addition to the Indian Self-Determination and Education 
Assistance Act, as amended, 25 U.S.C. 450 et seq., contracting 
requirements, each application must provide the following information:
    (a) The name and address of the agency or official to be responsible 
for the investigation of reported cases of child abuse and child 
neglect, the treatment and prevention of incidents of family violence, 
and the provision of immediate shelter and related assistance for 
victims of family violence and their dependents;
    (b) Projected service population of the program;
    (c) Projected service area of the program; and
    (d) Projected number of cases per month.



Sec. 63.34  How are Indian child protection and family violence 

prevention program funds distributed?

    (a) Funds will be distributed, subject to the availability of 
appropriations, and:
    (1) In any fiscal year that the appropriation exceeds 50 percent of 
the level of funding authorized for this purpose by the Act, 49 percent 
must be distributed equally to all tribes and tribal organizations and 
49 percent must be distributed on a per capita basis according to the 
population of children residing in the service area. Two percent of the 
annual appropriation will be set aside for distribution to tribes 
demonstrating special circumstances.
    (2) In any fiscal year that the appropriation does not exceed 50 
percent of the level of funding authorized for this purpose by the Act, 
funding must be distributed in equal amounts to all tribes. Two percent 
of the annual appropriation will be set aside for distribution to tribes 
demonstrating special circumstances.
    (3) Special circumstances include but are not limited to a high 
incidence of child sexual abuse, a high incidence of violent crimes, a 
high incidence of violent crimes against women, or the existence of a 
significant victim population within the community.
    (i) This 2 percent will be subject to discretionary distribution by 
the Assistant Secretary--Indian Affairs, or his or her designee. Tribes 
may request these funds through their respective area offices. All 
requests must demonstrate a high incidence of child sexual abuse, a high 
incidence of violent crimes, a high incidence of violent crimes against 
women, or the existence of a significant victim population within the 
community.
    (ii) Special circumstances funds will remain available through the 
third quarter of each fiscal year. In the fourth quarter, unallocated 
special circumstances funds will be redistributed as set forth in 
paragraphs (a)(1) and (a)(2) of this section, except that there will be 
no additional set aside for special circumstances.
    (b) Any tribe not wishing to receive Indian child protection and 
family violence prevention funds must inform its respective area office 
in writing within 90 days after receiving notice of the allocation from 
the area office. Each area office may reallocate unused Indian child 
protection and family violence prevention program funds as provided in 
this section.

[[Page 247]]

    (c) Funds may be used as matching shares for other federally funded 
programs which contribute to and promote prevention of child abuse, 
child neglect, and family violence on Indian reservations, but may not 
be used to supplant funds available for the same general purposes.
    (d) Any income resulting from the operation of Indian child 
protection and family violence prevention programs may be retained and 
used to promote prevention of child abuse, child neglect, and family 
violence on Indian reservations.



Sec. 63.35  How may Indian child protection and family violence 

prevention program funds be used?

    Indian child protection and family violence prevention program funds 
may be used to:
    (a) Establish child protective services programs.
    (b) Establish family violence prevention and treatment programs.
    (c) Develop and implement multidisciplinary child abuse 
investigation and prosecution programs.
    (d) Provide immediate shelter and related assistance to victims of 
family violence and their dependents, including construction or 
renovation of facilities to establish family violence shelters.
    (e) Purchase equipment to assist in the investigation of cases of 
child abuse and child neglect.
    (f) Develop protocols and intergovernmental or interagency 
agreements among tribal, Federal, state law enforcement, courts of 
competent jurisdiction, and related agencies to ensure investigations of 
child abuse cases to minimize the trauma to the child victim, to define 
and specify each party's responsibilities, and to provide for the 
coordination of services to victims and their families.
    (g) Develop child protection codes and regulations that provide for 
the care and protection of children and families on Indian reservations.
    (h) Establish community education programs for tribal members and 
school children on issues of family violence, child abuse, and child 
neglect.
    (i) Establish training programs for child protective services, law 
enforcement, judicial, medical, education, and related services 
personnel in the investigation, prevention, protection, and treatment of 
child abuse, child neglect, and family violence.
    (j) Establish other innovative and culturally relevant programs and 
projects that show promise of successfully preventing and treating 
family violence, child abuse, and child neglect.



Sec. 63.36  What are the special requirements for Indian child

protection and family violence prevention programs?

    (a) Each tribe must develop appropriate standards of service, 
including caseload standards and staffing requirements. The following 
caseload standards and staffing requirements are comparable to those 
recommended by the Child Welfare League of America, and are included to 
assist tribes in developing standards for Indian child protection and 
family violence prevention programs:
    (1) Caseworkers providing services to abused and neglected children 
and their families have a caseload of 20 active ongoing cases and five 
active investigations per caseworker.
    (2) Caseworkers providing services to strengthen and preserve 
families with children have a caseload of 20 families. If intensive 
family-centered crisis services are provided, a caseload of 10 families 
per caseworker is recommended.
    (3) It is recommended that there be one supervisor for every six 
caseworkers.
    (b) The negotiation and award of contracts, grants, or funding 
agreements under these regulations must include the following 
requirements:
    (1) Performance of background investigations to ensure that only 
those individuals who meet the standards of character contained in Sec. 
63.12 are employed in positions which involve regular contact with or 
control over Indian children.
    (2) Submission of an annual report to the contracting officer's 
representative which details program activities, number of children and 
families served, and the number of child abuse, child neglect, and 
family violence reports received.

[[Page 248]]

    (3) Assurance that the identity of any person making a report of 
child abuse or child neglect will not be disclosed without the consent 
of the individual and that all reports and records collected under these 
regulations are confidential and to be disclosed only as provided by 
Federal or tribal law.
    (4) Assurance that persons who, in good faith, report child abuse or 
child neglect will not suffer retaliation from their employers.



Sec. Sec. 63.37-63.50  [Reserved]



PART 67_PREPARATION OF A ROLL OF INDEPENDENT SEMINOLE INDIANS OF 

FLORIDA--Table of Contents




Sec.
67.1 Definitions.
67.2 Purpose.
67.3 Information collection.
67.4 Qualifications for enrollment and the deadline for filing 
          application forms.
67.5 Notices.
67.6 Application forms.
67.7 Filing of application forms.
67.8 Burden of proof.
67.9 Action by Superintendent.
67.10 Appeals.
67.11 Decision of the Area Director on appeals.
67.12 Exhaustion of administrative remedies.
67.13 Preparation, certification and approval of the roll.
67.14 Preparation of a per capita payment roll.
67.15 Special instructions.

    Authority: 5 U.S.C. 301; 25 U.S.C. 2 and 9; and Pub.L. 101-277, 104 
Stat. 143.

    Source: 59 FR 3291, Jan. 20, 1994, unless otherwise noted.



Sec. 67.1  Definitions.

    As used in this part:
    Act means the Act of Congress approved April 30, 1990, Public Law 
101-277, 104 Stat. 143, which authorizes the use and distribution of 
funds awarded the Seminole Indians in Dockets 73, 151, and 73-A of the 
Indian Claims Commission.
    Adopted person means a person whose natural parents' parental rights 
have been terminated by court order and persons other than the natural 
parents have exercised or do exercise parental rights with regard to the 
adopted person.
    Applicant means a person who is making application for inclusion on 
the roll prepared by the Secretary pursuant to the Act of April 30, 
1990, by either personally filing an application or by having a sponsor 
complete and file an application on his or her behalf.
    Assistant Secretary means the Assistant Secretary for Indian Affairs 
or authorized representative.
    BIA means the Bureau of Indian Affairs, Department of the Interior.
    Commissioner means the Commissioner of Indian Affairs or authorized 
representative.
    Director means the Area Director, Eastern Area Office, Bureau of 
Indian Affairs or authorized representative.
    Lineal descendant(s) means those persons who are the issue of the 
ancestor through whom enrollment rights are claimed; namely, the 
children, grandchildren, etc. It does not include collateral relatives 
such as brothers, sisters, nieces, nephews, cousins, etc., or adopted 
children, adopted grandchildren, etc.
    Living means born on or before and alive on the date specified.
    Secretary means the Secretary of the Interior or authorized 
representative.
    Sponsor means any person who files an application for enrollment or 
an appeal on behalf of another person.
    Superintendent means the Superintendent, Seminole Agency, Bureau of 
Indian Affairs or authorized representative.



Sec. 67.2  Purpose.

    The regulations in this part govern the compilation of a roll of 
persons who meet the requirements specified in section 7 of the Act who 
will be eligible to share in the distribution of a portion of the 
judgment funds awarded the Seminole Indians in Dockets 73, 151, and 73-A 
of the Indian Claims Commission.



Sec. 67.3  Information collection.

    The information collection requirement contained in this part does 
not require approval by the Office of Management and Budget under 44 
U.S.C. 3501 et seq.

[[Page 249]]



Sec. 67.4  Qualifications for enrollment and the deadline for filing 

application forms.

    (a) The roll shall contain the names of persons of Seminole Indian 
descent who:
    (1) Were born on or before, and living on April 30, 1990;
    (2) Are listed on or who are lineal descendants of persons listed on 
the annotated Seminole Agency Census of 1957 as Independent Seminoles; 
and
    (3) Are not members of an Indian tribe recognized by the Secretary 
on the most recent list of such Indian tribes published in the Federal 
Register.
    (b) To qualify for enrollment, all persons must file application 
forms with the Superintendent, Seminole Agency, Bureau of Indian 
Affairs, 6075 Stirling Road, Hollywood, Florida 33024 by June 19, 1994. 
An application filed after June 19, 1994 will be rejected for failure to 
file on time regardless of whether the applicant otherwise meets the 
qualifications for enrollment.



Sec. 67.5  Notices.

    (a) The Director shall give notice to all Area Directors of the BIA 
and all Superintendents within the jurisdiction of the Director of the 
preparation of the roll for public display in BIA field offices. Notices 
shall be placed for public display in community buildings, tribal 
buildings and Indian centers.
    (b) The Superintendent shall, on the basis of available residence 
data, publish, and republish when advisable, notices of the preparation 
of the roll in appropriate localities utilizing media suitable to the 
circumstances.
    (c) Notices shall advise of the preparation of the roll and the 
relevant procedures to be followed, including the qualifications for 
enrollment and the deadline for filing application forms to be eligible 
for enrollment. The notices shall also state how and where application 
forms may be obtained, as well as the name, address, and telephone 
number of a person who may be contacted for further information.



Sec. 67.6  Application forms.

    (a) Application forms to be filed by or for applicants for 
enrollment shall be furnished by the Area Director, Superintendent, or 
other designated persons upon written or oral request. Each person 
furnishing application forms shall keep a record of the names of 
individuals to whom forms are given, as well as the control numbers of 
the forms and the date furnished. Instructions for completing and filing 
application forms shall be furnished with each form. The form shall 
indicate prominently the deadline date for filing application forms.
    (b) Among other information, each application form shall contain:
    (1) Certification as to whether the application form is for a 
natural child or an adopted child of the parent through whom eligibility 
is claimed.
    (2) If the application form is filed by a sponsor, the name and 
address of the sponsor and the sponsor's relationship to the applicant.
    (3) A control number for the purpose of keeping a record of forms 
furnished to interested individuals.
    (4) Certification that the information given on the application form 
is true to the best of the knowledge and belief of the person filing the 
application. Criminal penalties are provided by statute for knowingly 
filing false information in such applications (18 U.S.C. 1001).
    (5) An election by the applicant as to whether the applicant, if 
determined to meet the qualifications for enrollment, wishes to share in 
the per capita payment.
    (c) Sponsors may file application forms on behalf of other persons, 
but may not file elections to share in the per capita payment.
    (1) The election to share in the per capita payment shall be made as 
follows:
    (i) If the applicant is a competent adult, the election shall be 
made by the applicant.
    (ii) If the applicant is not a competent adult, the election shall 
be made by the applicant's legal guardian.
    (iii) If the applicant is a minor, the election shall be made by the 
applicant's parent or legal guardian.
    (2) When an application is filed by a sponsor, the Superintendent 
shall:
    (i) Furnish the sponsor a copy of the application for forwarding to 
the applicant or his/her guardian for completion

[[Page 250]]

of the election to share in the per capita payment; and
    (ii) Make a reasonable effort to furnish a copy of the application 
directly to the applicant or his/her guardian for completion of the 
election to share in the per capita payment.
    (d) Every applicant or sponsor shall furnish the applicant's mailing 
address on the application form. Thereafter, the applicant or sponsor 
shall promptly notify the Superintendent of any change in address, 
giving appropriate identification of the applicant. Otherwise, the 
mailing address as stated on the application form shall be accepted as 
the address of record for all purposes under the regulations in this 
part.



Sec. 67.7  Filing of application forms.

    (a) Application forms filed by mail must be postmarked no later than 
midnight on the deadline date specified in Sec. 67.4(b). Where there is 
no postmark date showing on the envelope or the postmark date is 
illegible, application forms mailed from within the United States, 
including Alaska and Hawaii, received more than 15 days after the 
specified deadline, and application forms mailed from outside of the 
United States received more than 30 days after the specified deadline in 
the office of the Superintendent, will be rejected for failure to file 
in time.
    (b) Application forms filed by personal delivery must be received in 
the office of the Superintendent no later than close of business on the 
deadline date specified in Sec. 67.4(b).
    (c) If the deadline date for filing application forms falls on a 
Saturday, Sunday, legal holiday, or other nonbusiness day, the deadline 
will be the next working day thereafter.



Sec. 67.8  Burden of proof.

    The burden of proof rests upon the applicant to establish 
eligibility for enrollment. Documentary evidence such as birth 
certificates, death certificates, baptismal records, copies of probate 
findings, or affidavits may be used to support claims of eligibility for 
enrollment. Records of the BIA may be used to establish eligibility.



Sec. 67.9  Action by Superintendent.

    (a) The Superintendent shall notify each individual applicant or 
sponsor, as applicable, upon receipt of an application. The 
Superintendent shall consider each application and all documentation. 
Upon determining an individual's eligibility, the Superintendent shall 
notify the individual; the parent or guardian having legal custody of a 
minor or incompetent adult; or the sponsor, as applicable.
    (1) Written notification of the Superintendent's decision shall be 
sent to the applicant by certified mail, for receipt by the addressee 
only, return receipt requested.
    (2) If a decision by the Superintendent is sent out of the United 
States, registered mail will be used. If a certified or registered 
notice is returned as ``Unclaimed,'' the Superintendent shall remail the 
notice by regular mail together with an acknowledgment of receipt form 
to be completed by the addressee and returned to the Superintendent. If 
the acknowledgment of receipt is not returned, computation of the period 
specified for changes in election and for appeals shall begin on the 
date the notice was remailed. A certified or registered notice returned 
for any reason other than ``Unclaimed'' need not be remailed.
    (3) If an individual files an application on behalf of more than one 
person, one notice of eligibility or adverse action may be addressed to 
the person who filed the applications. However, the notice must list the 
name of each person to whom the notice is applicable. Where an 
individual is represented by a sponsor, notification to the sponsor of 
eligibility or adverse action shall be considered notification to the 
individual.
    (b) On the basis of an applicant's election with regard to whether 
he or she wishes to share in the per capita payment, the 
Superintendent's decision shall also state whether the applicant's name 
will be included on the per capita payment roll. If no election has been 
made by the applicant, parent, or legal guardian on the application 
form, the individual applicant's name will not be included on the per 
capita payment roll.

[[Page 251]]

    (1) The eligible individual will have 30 days from notification of 
his or her eligibility in which to request a change in the election of 
whether to share in the per capita payment. Computation of the 30-day 
period will be in accordance with Sec. 67.9(a)(2) and Sec. 67.9(d). 
Upon written request received within the 30-day period, to avoid 
hardship or gross injustice, the Superintendent may grant an applicant 
additional time, not to exceed 30 days, in which to submit a request for 
a change in election.
    (2) A change in the election of whether to share in the per capita 
payment can only be made by competent adult applicants; by the legal 
guardian of an incompetent adult; or, in the case of a minor, by the 
minor's parent or legal guardian.
    (c) If the Superintendent determines that an applicant is not 
eligible for enrollment as an Independent Seminole Indian of Florida, 
the Superintendent shall notify the applicant of the decision and shall 
fully explain the reasons for the adverse action and explain the 
rejected applicant's right to appeal to the Area Director. The decision 
of the Area Director shall be final and conclusive.
    (d) Except as provided in paragraph (a)(2) of this section, a notice 
of adverse action concerning an individual's enrollment eligibility or 
the inclusion or exclusion of an individual's name on the per capita 
payment roll is considered to have been made, and computation of the 
period for appeal shall begin on the earliest of the following dates:
    (1) Delivery date indicated on the return receipt;
    (2) Date of acknowledgment of receipt;
    (3) Date of personal delivery; or
    (4) Date of return by the post office of an undelivered certified or 
registered letter.
    (e) To avoid hardship or gross injustice, the Area Director or the 
Superintendent may waive technical deficiencies in application forms or 
other submittals. Failure to file by the deadline date does not 
constitute a technical deficiency.



Sec. 67.10  Appeals.

    (a) Appeals from or on behalf of applicants who have been rejected 
for enrollment must be in writing and must be filed pursuant to part 62 
of this chapter. When the appeal is on behalf of more than one person, 
the name of each person must be listed in the appeal.
    (b) A copy of part 62 of this chapter shall be furnished with each 
notice of adverse action. All sections of part 62 shall be applicable to 
appeals filed under this part except Sec. Sec. 62.10, 62.11 and 62.12.



Sec. 67.11  Decision of the Area Director on appeals.

    (a) The Area Director will consider the record as presented, 
together with such additional information as may be considered 
pertinent. Any additional information relied upon shall be specifically 
identified in the decision.
    (b) The decision of the Area Director on an appeal shall be final 
and conclusive, and written notice, which shall state that the decision 
is final and conclusive, shall be given to the individual applicant, 
parent, legal guardian, or sponsor, as applicable.
    (c) If an individual files an appeal on behalf of more than one 
applicant, one notice of the Area Director's decision may be addressed 
to the person who filed the appeal. The Area Director's decision must 
list the name of each person to whom the decision is applicable. Where 
an individual applicant is represented by a sponsor, notification to the 
sponsor of the Area Director's decision is sufficient.
    (d) Written notice of the Area Director's decision on the appeal 
shall be sent to the applicant by certified mail, to be received by the 
addressee only, return receipt requested.
    (1) On the basis of the individual's election with regard to whether 
he or she wishes to share in the per capita payment, the Area Director's 
decision shall also state whether the individual's name will be included 
on the per capita payment roll. If no election is made by the individual 
applicant, parent, or legal guardian, the individual's name will not be 
included on the per capita payment roll.
    (2) The eligible individual will have 30 days from notification of 
his or her eligibility in which to request a change in the election of 
whether to share in

[[Page 252]]

the per capita payment. Computation of the 30-day period will be in 
accordance with Sec. 67.9(a)(2) and Sec. 67.9(d). Upon written request 
received within the 30-day period, to avoid hardship or gross injustice, 
the Area Director may grant additional time, not to exceed 30 days, in 
which to submit a request for a change in election.
    (3) The change in the election of whether to share in the per capita 
payment can only be made by adult applicants, or by the legal guardian 
of an incompetent adult, or in the case of minors, by the parents or 
legal guardian of such minors.



Sec. 67.12  Exhaustion of administrative remedies.

    The decision of the Area Director on appeal, which shall be final 
for the Department, is subject to judicial review under 5 U.S.C. 704.



Sec. 67.13  Preparation, certification and approval of the roll.

    (a) The Superintendent shall prepare a minimum of three (3) copies 
of the roll of those persons determined to be qualified for enrollment 
as an Independent Seminole Indian of Florida. The roll shall contain for 
each person a roll number or identification number, name, address, sex, 
date of birth, date of death (when applicable), and the name and 
relationship of the ancestor on the annotated Seminole Agency Census of 
1957 through whom eligibility for enrollment was established.
    (b) A certificate shall be attached to the roll by the 
Superintendent certifying that to the best of his or her knowledge and 
belief, the roll contains only the names of those persons who were 
determined to meet the qualifications for enrollment.
    (c) The Area Director shall approve the roll.



Sec. 67.14  Preparation of a per capita payment roll.

    (a) The Superintendent shall, based on the roll approved under Sec. 
67.12(c), prepare a per capita payment roll. The payment roll shall be 
comprised of those persons whose names appear on the approved roll and 
who have elected to share in the per capita payment.
    (b) The per capita payment roll shall contain for each person a roll 
number or identification number, name, and address.
    (c) The Area Director shall authorize the distribution of the 
judgment funds to those persons named on the per capita payment roll.



Sec. 67.15  Special instructions.

    To facilitate the work of the Superintendent and Area Director, the 
Assistant Secretary may issue special instructions not inconsistent with 
the regulations in this part.



PART 75_REVISION OF THE MEMBERSHIP ROLL OF THE EASTERN BAND OF CHEROKEE

INDIANS, NORTH CAROLINA--Table of Contents




Sec.
75.1 Definitions.
75.2 Purpose.
75.3 Announcement of revision of roll.
75.4 Basic membership roll.
75.5 Removal of deceased persons from the roll.
75.6 Additions to the roll.
75.7 Applications for enrollment.
75.8 Applications for minors and incompetents.
75.9 Application form.
75.10 Where application forms may be obtained.
75.11 Proof of relationship.
75.12 Enrollment Committee.
75.13 Tenure of Enrollment Committee.
75.14 Appeals.
75.15 Current membership roll.
75.16 Eligibility for enrollment of persons born after August 21, 1957.
75.17 Relinquishment of membership.
75.18 Adoption.
75.19 Distribution of judgment funds.

    Authority: Sec. 2, 71 Stat. 374.

    Source: 24 FR 201, Jan. 8, 1959, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 75.1  Definitions.

    As used in this part:
    (a) Band means the Eastern Band of Cherokee Indians in North 
Carolina.
    (b) Reservation means the lands of the Eastern Band of Cherokee 
Indians in the counties of Jackson, Swain, Graham, Cherokee and Haywood 
in North Carolina.

[[Page 253]]

    (c) Tribal Council means the Tribal Council of the Eastern Band of 
Cherokee Indians in North Carolina.
    (d) Announcement means the announcement of the revision of the 
membership roll issued as required in Sec. 75.3.
    (e) Tribal Enrollment Office means the Tribal Enrollment Clerk 
working in concert with the Enrollment Committee.
    (f) Tribal Enrollment Clerk means the individual working in the 
Tribal Enrollment Office.
    (g) Enrollment Committee means the three individuals appointed by 
the Tribal Council in accordance with Sec. 75.12.

[24 FR 201, Jan. 8, 1959, as amended at 25 FR 2516, Mar. 25, 1960; 38 FR 
9998, Apr. 23, 1973. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 75.2  Purpose.

    The regulations in this part are to govern the revision, as 
authorized by the Act approved August 21, 1957 (71 Stat. 374), of the 
membership roll of the Eastern Band of Cherokee Indians, North Carolina, 
prepared and approved in accordance with the Act of June 4, 1924 (43 
Stat. 376), and the Act of March 4, 1931 (46 Stat. 1518).



Sec. 75.3  Announcement of revision of roll.

    When the Tribal Council has authorized the expenditure of tribal 
funds to supply sufficient staff to perform the work necessary to revise 
the membership roll of the Band and such staff has been employed and 
when the application forms and other necessary documents have been 
devised and printed, the Principal Chief, or in his absence the Vice 
Chief or the Chairman of the Tribal Council shall announce that a 
revision of the membership roll of the Band shall commence on a 
specified date. The date specified shall be not less than 15 days nor 
more than 30 days from the date of issuance of the announcement. A press 
release should be prepared announcing the date the revision of the roll 
shall begin, together with other pertinent information such as the 
membership requirements and where application forms may be obtained. The 
press release should be distributed to all newspapers and radio stations 
within the region of the Reservation with a request that it be given 
wide publicity. Copies of the press release should also be posted in the 
Agency Office and at various other public places throughout the 
Reservation as well as in Post Offices of the towns adjacent to the 
Reservation.



Sec. 75.4  Basic membership roll.

    All persons whose names appear on the roll of the Eastern Band of 
Cherokee Indians of North Carolina, prepared and approved pursuant to 
the act of June 4, 1924 (43 Stat. 376), and the act of March 4, 1931 (46 
Stat. 1518), shall be members of the Band.



Sec. 75.5  Removal of deceased persons from the roll.

    The name of any person who was not alive as of midnight August 21, 
1957, shall be stricken from the basic membership roll by the Tribal 
Enrollment Office upon receipt of a death certificate or other evidence 
of death acceptable to the Tribal Enrollment Office.

[38 FR 9998, Apr. 23, 1973. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 75.6  Additions to the roll.

    There shall be added to the roll of the Band the names of persons 
living on August 21, 1957, who meet the following qualifications:
    (a) Persons born during the period, beginning on or after June 4, 
1924, and ending midnight August 21, 1957, who are direct descendants of 
persons whose names appear on the roll prepared and approved pursuant to 
the act of June 4, 1924 (43 Stat. 376), and the act of March 4, 1931 (46 
Stat. 1518); provided, such persons:
    (1) Who applied for membership before August 14, 1963 possess at 
least \1/32\ degree of Eastern Cherokee Indian blood, and those persons 
who apply for membership on or after August 14, 1963, possess at least 
\1/16\ degree Eastern Cherokee Indian blood, except that persons who 
also possess Indian blood of another tribe shall not be enrolled if they 
are enrolled as members of the other tribe.
    (2) Have themselves or have parents who have maintained and dwelt in 
a home at sometime during the period from June 4, 1924, through August 
21,

[[Page 254]]

1957, on the lands of the Eastern Band of Cherokee Indians in the 
counties of Swain, Jackson, Graham, Cherokee and Haywood in North 
Carolina, except that this specific part of this section shall not apply 
to those persons and members of their families who were temporarily away 
from the Reservation due to one or both parents being in the U.S. Armed 
Services or who were employed by the U.S. Government and neither shall 
it apply to those individuals who were in mental or penal institutions 
during this period of time.
    (3) Have filed an application for enrollment with the Band in 
accordance with the procedures set forth in this part.
    (b) A child born out of wedlock to a mother who is either an 
enrolled member of the Band, or who meets the qualifications for 
enrollment as a member, may be enrolled if such child otherwise meets 
the requirements for enrollment as set forth in this section.
    (c) A child born out of wedlock to a mother who is not a member of 
the Band may be enrolled if the mother files with the Enrollment 
Committee proof established in accordance with the laws of North 
Carolina as to the paternity of the child and the person adjudged to be 
the father is either an enrolled member of the Band, or meets the 
requirements for enrollment as a member, and if the child otherwise meet 
the requirements for enrollment as set forth in this section.

[24 FR 201, Jan. 8, 1959, as amended at 25 FR 2516, Mar. 25, 1960; 28 FR 
8314, Aug. 14, 1963. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 75.7  Applications for enrollment.

    Each adult person who believes he meets the requirements for 
enrollment established herein may submit to the Tribal Enrollment Office 
an application for enrollment as a member of the Eastern Band of 
Cherokee Indians.

[38 FR 9998, Apr. 23, 1973. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 75.8  Applications for minors and incompetents.

    Applications for enrollment of minors may be filed by the parent, 
next of kin, recognized guardian, or other person responsible for their 
care. Applications for enrollment of persons known to be in mental or 
penal institutions may be filed by the Principal Chief of the Eastern 
Band of Cherokee.

[38 FR 9998, Apr. 23, 1973. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 75.9  Application form.

    The form of application for enrollment will be prepared by the 
Tribal Enrollment Office and, in addition to whatever information the 
Enrollment Committee may deem necessary, shall contain the following:
    (a) The name and address of the applicant. If the application is 
filed on behalf of a minor, the name and address of the person filing 
the application and his relationship to the minor.
    (b) The name, relationship, tribe and roll number of the ancestor or 
ancestors through whom enrollment rights are claimed, and whether 
applicant is enrolled with another tribe.
    (c) The date of death of such ancestor, if deceased.

[38 FR 9998, Apr. 23, 1973. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 75.10  Where application forms may be obtained.

    Application forms will be supplied by the Tribal Enrollment Office 
of the Eastern Band of Cherokee Indians, Council House, Cherokee, N.C. 
28719, upon request, either in person or by mail.

[38 FR 9998, Apr. 23, 1973. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 75.11  Proof of relationship.

    If the applicant's parents or other Eastern Cherokee ancestors 
through whom the applicant claims enrollment rights are unknown to the 
Tribal Enrollment Office, the Tribal Enrollment Office may request the 
applicant to furnish such additional information and evidence as it may 
deem necessary to determine the applicant's eligibility for enrollment. 
Failure of the applicant to furnish the information requested may be 
deemed sufficient cause for rejection.

[38 FR 9998, Apr. 23, 1973. Redesignated at 47 FR 13327, Mar. 30, 1982]

[[Page 255]]



Sec. 75.12  Enrollment Committee.

    The Tribal Council shall appoint either from within or without the 
membership of the Council, but not from without the membership of the 
Band, a committee of three (3) persons to serve as the Enrollment 
Committee. The Enrollment Committee shall review all applications for 
enrollment filed in accordance with the existing regulations, and shall 
determine the qualifications of the applicant for enrollment with the 
Band. The Enrollment Committee may perform such other functions relating 
to the enrollment and membership in the Band as the Tribal Council may 
from time to time direct.

[38 FR 9999, Apr. 23, 1973. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 75.13  Tenure of Enrollment Committee.

    The members of the Enrollment Committee shall be appointed to serve 
a term of office of 2 years by each newly elected Tribal Council.

[38 FR 9999, Apr. 23, 1973. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 75.14  Appeals.

    Any person whose application for enrollment has been rejected by the 
Enrollment Committee shall have the right to appeal to the Tribal 
Council from the determination made by the Enrollment Committee: 
Provided, That such appeal shall be made in writing and shall be filed 
in the office of the Principal Chief for presentation to the Tribal 
Council within sixty (60) days from the date on which the Enrollment 
Committee issues notice to the applicant of his rejection. The applicant 
may submit with his appeal any additional data to support his claim to 
enrollment not previously furnished. The decision of the Tribal Council 
as to whether the applicant meets the requirements for enrollment set 
forth in this part shall be final. The Tribal Council shall review no 
applications for enrollment except in those cases where the rejected 
applicant appeals to the Council in writing from the determination made 
by the Enrollment Committee.

[38 FR 9999, Apr. 23, 1973. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 75.15  Current membership roll.

    The membership roll of the Eastern Band of Cherokee Indians shall be 
kept current by striking therefrom the names of persons who have 
relinquished their membership in the Band as provided in Sec. 75.17 and 
of deceased persons upon receipt of a death certificate or other 
evidence of death acceptable to the Tribal Enrollment Office, and by 
adding thereto the names of individuals who meet the qualifications and 
are accepted for membership in the Band as set forth in this part.

[38 FR 9999, Apr. 23, 1973. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 75.16  Eligibility for enrollment of persons born after 

August 21, 1957.

    (a) Persons possessing one-sixteenth or more degree Eastern Cherokee 
Indian blood and born after August 21, 1957, may be enrolled in either 
of the following manners:
    (1) An application to have the person enrolled must be filed by or 
on behalf of the person by the parent or recognized guardian or person 
responsible for his care, which application shall be accompanied by the 
applicant's birth certificate or by other evidence of eligibility of the 
applicant for enrollment that the Tribal Enrollment Office may require.
    (2) In the absence of such application within 6 months after a 
person's birth, the Tribal Enrollment Office shall be authorized and 
encouraged to obtain evidence relating to the eligibility of the person 
for enrollment in the Eastern Band, and present an application in his 
behalf to the Enrollment Committee which may proceed to enroll the 
person if the evidence submitted meets the criteria.
    (b) A person adopted in accordance with applicable laws by either 
tribal members or nonmembers, shall be considered for enrollment as a 
tribal member if the person otherwise meets the requirements for 
enrollment.
    (c) A person born to an enrolled member of the Band and an enrolled 
member of another Tribe, and said person is enrolled in the other Tribe, 
may be transferred from the rolls of the other and added to the rolls of 
the Eastern Band if he meets the general

[[Page 256]]

requirements for enrollment and, in addition:
    (1) A death certificate or other acceptable evidence of the death of 
the parent enrolled in the other Tribe is received and the surviving 
parent who is a member of the Eastern Band makes application for 
enrollment by way of transfer.
    (2) Upon receipt of divorce documents in the Tribal Enrollment 
Office, there is evidence of custody of the minors being awarded to the 
parent who is a member of the Band and the parent awarded custody makes 
application for enrollment of the minors with the Eastern Band by way of 
transfer.
    (d) In order for a child to be enrolled under paragraph (b) or (c) 
of this section, either:
    (1) An application to have the child enrolled must be filed on 
behalf of the child by the parent or recognized guardian or person 
responsible for his care, which application shall be accompanied by the 
child's birth certificate or by other evidence as to the eligibility of 
the child for enrollment as the Enrollment Committee may require, which 
application must be filed within one year from the date of birth of such 
child, or
    (2) In the absence of such application, the Tribal Enrollment 
Committee may on its own motion, proceed to enroll any eligible child 
upon receipt by it of such evidence as shall satisfy the Committee as to 
the eligibility of the child to be enrolled, within one year from date 
of birth of such child.

[28 FR 8315, Aug. 14, 1963, as amended at 29 FR 9326, July 8, 1964; 38 
FR 9999, Apr. 23, 1973. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 75.17  Relinquishment of membership.

    Any member of the Eastern Band of Cherokee Indians may relinquish 
his membership in the Band by filing notice in writing that he no longer 
desires to be enrolled as a member of the Band. On receipt of such 
notice the name of the members shall be stricken from the roll and he 
shall no longer be considered as a member of the Band and shall not be 
entitled to share in any use or in any distribution of tribal assets 
which may be made in the future to the enrolled members of the Band.



Sec. 75.18  Adoption.

    The Tribal Council of the Eastern Band of Cherokee Indians shall be 
empowered to enact ordinances governing the adoption of new members.

[39 FR 43391, Dec. 13, 1974. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 75.19  Distribution of judgment funds.

    The membership roll of the Eastern Band of Cherokee Indians of North 
Carolina will be brought up to date as of October 10, 1974, to serve as 
the basis for distributing certain judgment funds awarded to the Band in 
Indian Claims Commission dockets 282-A through L.
    (a) Filing of and action on applications shall be in accordance with 
regulations in this part 75, except as otherwise provided in paragraphs 
(b) through (g) of this section.
    (b) In lieu of notice provisions contained in Sec. 75.3, the 
Commissioner of Indian Affairs or his authorized representative shall 
provide notice of the bringing up to date of the membership roll through 
publication of these amended regulations in the Federal Register and 
through appropriate press releases and other public notices.
    (c) Application forms may be obtained from the Tribal Enrollment 
Office of the Eastern Band of Cherokee Indians, Council House, Cherokee, 
North Carolina 28719. Completed applications must be received by the 
Tribal Enrollment Office no later than midnight January 8, 1975.
    (d) Requests for applications for enrollment in the Band received 
after midnight of the deadline date will not be furnished until after 
the funds have been distributed.
    (e) In lieu of the procedures given in Sec. 75.14, appeals from 
rejected applicants must be in writing and filed pursuant to part 62 of 
this subchapter, a copy of which shall be furnished with each notice of 
rejection.
    (f) The Tribal Council and the Superintendent shall attach separate 
statements to the roll certifying that to the best of their knowledge 
and belief, the roll contains only the names of those persons who were 
determined to meet the requirements for enrollment. The roll shall then 
be submitted through

[[Page 257]]

the Area Director to the Commissioner for approval.
    (g) To facilitate the work of the Tribal Enrollment Committee the 
Commissioner may issue special instructions not inconsistent with the 
regulations in this part 75.

[39 FR 43391, Dec. 13, 1974. Redesignated at 47 FR 13327, Mar. 30, 1982]



PART 81_TRIBAL REORGANIZATION UNDER A FEDERAL STATUTE--Table of Contents




Sec.
81.1 Definitions.
81.2 Purpose and scope.
81.3 Group eligibility.
81.4 Assistance from the Department of the Interior.
81.5 Request to call election.
81.6 Entitlement to vote.
81.7 Adoption, ratification, or revocation by majority vote.
81.8 Election board.
81.9 Voting districts.
81.10 District Election Boards.
81.11 Registration.
81.12 Voting list.
81.13 Eligibility disputes.
81.14 Election notices.
81.15 Opening and closing of polls.
81.16 Interpreters.
81.17 Electioneering.
81.18 Manner of voting.
81.19 Absentee voting.
81.20 Ballots.
81.21 Counting of ballots.
81.22 Contesting of election results.
81.23 Posting and certifying election results.
81.24 Approval, disapproval, or rejection action.

    Authority: 25 U.S.C. 473a, 476, 477, and 503.

    Source: 46 FR 1670, Jan. 7, 1981, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 81.1  Definitions.

    As used in this part:
    (a) Adult Indian means any Indian as defined in paragraph (i) of 
this section who has attained the age of 18 years.
    (b) Amendment means any modification, change, or total revision of a 
constitution or charter.
    (c) Authorizing Officer means the Bureau of Indian Affairs official 
having authority to authorize the calling of a Secretarial election.
    (d) Cast ballot means an official ballot that is cast in the proper 
manner at the proper time by a duly registered voter. A ballot is cast 
by duly placing it in the ballot box or, in the case of absentee voting, 
when the ballot is duly received through the mail by the election board.
    (e) Charter means the charter of incorporation the Secretary may 
issue to a reorganized tribe pursuant to Federal Statute.
    (f) Commissioner means the Commissioner of Indian Affairs or his/her 
authorized representative.
    (g) Constitution or Constitution and Bylaws means the written 
organizational framework of any tribe reorganized pursuant to a Federal 
Statute for the exercise of governmental powers.
    (h) Federal Statute means one of the following: (1) The Act of June 
18, 1934, 48 Stat. 984, as amended (Indian Reorganization Act); (2) the 
Act of June 26, 1936, 49 Stat. 1967 (Oklahoma Indian Welfare Act); or 
(3) the Act of May 1, 1936, 49 Stat. 1250 (Alaska Native Reorganization 
Act).
    (i) Indian means: (1) All persons who are members of those tribes 
listed or eligible to be listed in the Federal Register pursuant to 25 
CFR 83.6(b) as recognized by and receiving services from the Bureau of 
Indian Affairs; provided, that the tribes have not voted to exclude 
themselves from the Act of June 18, 1934, 43 Stat. 984, as amended; and 
(2) any person not a member of one of the listed or eligible to be 
listed tribes who possesses at least one-half degree of Indian blood.
    (j) Invalid ballot means an official cast ballot discovered at the 
time the votes are counted which does not comply with the requirements 
for voting or is not an official ballot. An invalid ballot is not to be 
counted for determining the number of cast ballots.
    (k) Member means any Indian who is duly enrolled in a tribe who 
meets a tribe's written criteria for membership or who is recognized as 
belonging to a tribe by the local Indians comprising the tribe.
    (l) Mutilated ballot means an official ballot that has been damaged 
to the extent that it is not possible to determine the choice the voter 
intended to make. There are two kinds of mutilated official ballots:

[[Page 258]]

    (1) A ballot that is mutilated and not cast. In this case, the 
mutilated ballot may be exchanged for a new one. If the need arises to 
exchange a mutilated absentee ballot, no additional time will be 
provided for the new ballot to be received by the election board.
    (2) A ballot that is mutilated and cast. A mutilated cast ballot is 
to be counted in the same manner as a spoiled cast ballot.
    (m) Officer in Charge means the Superintendent, Administrative 
Officer, or other official of the local unit of the Bureau of Indian 
Affairs (or a Bureau employee that such person might designate) having 
administrative jurisdiction over a tribe.
    (n) Official ballot means a ballot prepared by the Bureau of Indian 
Affairs for use in an election pursuant to this part. It is possible 
that an official ballot may be found to be either spoiled or mutilated 
at the time the votes are counted.
    (o) Registration means the act whereby persons, who are eligible to 
vote, become entitled or qualified to cast ballots by having their names 
placed on the list of persons who will be permitted to vote.
    (p) Reorganized tribe means a tribe whose members have adopted a 
constitution pursuant to a Federal Statute.
    (q) Reservation means any area established by treaty, Congressional 
Act, Executive Order, or otherwise for the use or occupancy of Indians.
    (r) Revocation means that act whereby the adult members of a tribe 
vote to abandon their constitutional form of government as opposed to 
their voting to amend or totally revise it.
    (s) Secretarial election means an election held within a tribe 
pursuant to regulations prescribed by the Secretary as authorized by 
Federal Statute (as distinguished from tribal elections which are 
conducted under tribal authority. (See Cheyenne River Sioux Tribe v. 
Andrus, 566 F. 2d 1085 (8th Cir., 1977), cert. denied 439 U.S. 820 
(1978)).
    (t) Secretary means the Secretary of the Interior or his/her 
authorized representative.
    (u) Spoiled ballot means an official ballot that has been marked in 
such a way that it is not possible to determine the intent of the voter, 
a ballot that has not been marked at all, or one that has been marked so 
as to violate the secrecy of the ballot. There are two kinds of spoiled 
official ballots:
    (1) A ballot that is spoiled and not cast. In this case, the spoiled 
ballot may be exchanged for a new one. If the need arises to exchange a 
spoiled absentee ballot, no additional time will be provided for the new 
ballot to be received by the election board.
    (2) A ballot that is spoiled and cast. A spoiled cast ballot is to 
be counted in tabulating the total votes cast in conjunction with 
determining whether the required percentage of the qualified voters has 
participated in the election.
    (v) Tribal government means that entity established pursuant to a 
tribal constitution as empowered to speak for the tribe or in the 
absence thereof any group or individual that is recognized by the tribal 
members as empowered to speak for the tribe.
    (w) Tribe means: (1) Any Indian entity that has not voted to exclude 
itself from the Indian Reorganization Act and is included, or is 
eligible to be included, among those tribes, bands, pueblos, groups, 
communities, or Alaska Native entities listed in the Federal Register 
pursuant to Sec. 83.6(b) of this chapter as recognized and receiving 
services from the Bureau of Indian Affairs; and (2) any group of Indians 
whose members each have at least one-half degree of Indian blood for 
whom a reservation is established and who each reside on that 
reservation. Such tribes may consist of any consolidation of one or more 
tribes or parts of tribes.
    (x) Voting district means a geographical area established to 
facilitate a tribal election process.



Sec. 81.2  Purpose and scope.

    (a) The purpose of this part is to provide uniformity and order in:
    (1) Holding Secretarial elections for voting on proposed 
constitutions when tribes wish to reorganize,
    (2) Adopting constitutional amendments,
    (3) Ratifying and amending charters,
    (4) Revoking constitutions, and
    (5) Facilitating the calling of such elections by the Secretary 
under provisions of a Federal Statute.

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    (b) This part may also be used as a guideline by tribes wishing to 
hold constitutional elections that are not held pursuant to a Federal 
Statute.
    (c) Where a discrepancy might appear to exist between these 
regulations and a specific requirement of the statute governing the 
reorganization of a tribe or ratification and amendment of charters, the 
regulations shall be interpreted to conform with the statute.
    (d) As much as possible, Secretarial elections shall be scheduled so 
as to avoid their being held at the same time as tribal elections in 
order to avoid the confusion that results from different requirements 
for each kind of election.



Sec. 81.3  Group eligibility.

    (a) No tribe which has voted to exclude itself from the provisions 
of the Indian Reorganization Act, or is otherwise precluded by law, may 
be reorganized under a Federal Statute. Tribes wishing to reorganize or 
a reorganized tribe seeking to amend its constitution and bylaws or 
wishing to vote to revoke such document shall do so under the 
regulations in this part.
    (b) Charters issued to reorganized tribes shall be ratified or 
amended under the regulations in this part.



Sec. 81.4  Assistance from the Department of the Interior.

    Representatives of the Department of the Interior will cooperate 
with and offer advice and assistance (including the proposing of 
amendments), to any tribe in drafting a constitution and bylaws, an 
amendment, a charter or charter amendment, or in revocation of 
constitutions. Any payments that might be necessary to non-Bureau staff 
assisting in the conduct of the election shall be made from tribal 
funds.



Sec. 81.5  Request to call election.

    (a) The Secretary shall authorize the calling of an election to 
adopt a constitution and bylaws or to revoke a constitution and bylaws, 
upon a request from the tribal government.
    (b) The Secretary shall authorize the calling of an election to 
adopt a constitution and bylaws pursuant to a Federal Statute upon 
receipt of a petition bearing the signatures of at least 60 percent of 
the tribe's adult members.
    (c) The Secretary shall authorize the calling of an election to 
ratify a charter at the time the charter is issued, but he/she may issue 
a charter to a reservation-based tribe only upon petition by at least 
one-third of the adult members of the tribe. No ratification, however, 
shall be valid unless the tribe has a constitution adopted and approved 
pursuant to the relevant Federal Statute.
    (d) The Secretary shall authorize the calling of an election on the 
adoption of amendments to a constitution and bylaws or a charter when 
requested pursuant to the amendment article of those documents. The 
election shall be conducted as prescribed in this part unless the 
amendment article of the constitution and bylaws or the charter provides 
otherwise, in which case the provisions of those documents shall rule 
where applicable.
    (e) If the amendment provisions of a tribal constitution or charter 
have become outdated and amendment can not be effected pursuant to them, 
the Secretary may authorize an election under this part to amend the 
documents when the recognized tribal government so requests.
    (f) Any authorization not acted upon within 90 days (tribes in 
Alaska shall be granted 120 days) from the date of issuance will be 
considered void. Notification of the election date as provided for in 
Sec. 81.14 shall constitute the action envisioned in this section. 
Extension of an authorization may be granted upon a valid and reasonable 
request from the election board. Copies of authorizations shall be 
furnished the requesting tribe or petitioners.
    (g) In those instances where conflicting proposals to amend a single 
constitutional or charter provision are submitted, that proposal first 
received by the officer in charge, if found valid, shall be placed 
before the voters before any consideration is given other proposals. 
Other proposals shall be considered in order of their receipt; provided, 
they are resubmitted following final action on the initial submission. 
This procedure shall also apply in those instances where new or revised 
constitutions are at issue.

[[Page 260]]



Sec. 81.6  Entitlement to vote.

    (a) If the group is a tribe, or tribes, of a reservation and is 
acting to effect reorganization under a Federal Statute for the first 
time:
    (1) Any duly registered adult member regardless of residence shall 
be entitled to vote on the adoption of a constitution and bylaws.
    (2) Duly registered adult nonresident members and ill or physically 
disabled registered adult resident members may vote by absentee ballot 
(see Sec. 81.19).
    (b) If the group is composed of the adult Indian residents of a 
reservation:
    (1) Any adult duly registered member physically residing on the 
reservation shall be entitled to vote.
    (2) Absentee voting shall be permitted only for duly registered 
residents temporarily absent from the reservation, ill, or physically 
disabled.
    (c) If the group is a tribe, or tribes, without a reservation as 
defined in this part, any duly registered member shall be entitled to 
vote on the adoption of a constitution and bylaws by either arriving at 
a polling place or by requesting, properly completing, and timely 
casting an absentee ballot as determined by the election board pursuant 
to the relevant Federal Statute; provided, that outside of Alaska and 
Oklahoma, a reservation shall be established for the tribe before it 
becomes entitled to vote on the adoption of a constitution.
    (d) For a reorganized tribe to amend its constitution and bylaws, 
only members who have duly registered shall be entitled to vote; 
provided, that registration is open to the same class of voters that was 
entitled to vote in the Secretarial election that effected its 
reorganization, unless the amendment article of the existing 
constitution provides otherwise.
    (e) For a reorganized tribe to revoke its constitution and bylaws, 
only members who have duly registered shall be entitled to vote; 
provided, that registration is open to the same class of voters as was 
entitled to vote in the Secretarial election that effected its 
reorganization, unless the amendment article of the existing 
constitution provides otherwise.
    (f) For a reorganized tribe to ratify a charter or to adopt a 
charter amendment, any adult member who has duly registered shall be 
entitled to vote, provided that if the tribe is of a reservation, only 
duly registered members physically residing on the reservation shall be 
entitled to vote.



Sec. 81.7  Adoption, ratification, or revocation by majority vote.

    Except as it may be further limited by this part, a constitution and 
bylaws, amendments thereto, or charter and charter amendments shall be 
considered adopted, ratified, or revoked if a majority of those actually 
voting are in favor of adoption, ratification, or revocation. The total 
vote cast, however, must be at least 30 percent of those entitled to 
vote, unless, with regard to amendments, the constitution provides 
otherwise. The names of persons appearing on the registration list who 
have not reached eighteen years of age by the date of the election, 
shall be removed from the list of registered voters when determining 
whether the required percentage of participation has been achieved. 
Unless the existing constitution or charter provides otherwise, none of 
the actions cited in this section shall become effective until they are 
approved by the Secretary. The validity of any charter ratification 
shall be dependent upon the tribe first having reorganized. Duly 
ratified charters shall be revoked or surrendered only by Act of 
Congress.



Sec. 81.8  Election board.

    (a) There shall be an election board consisting of the officer in 
charge acting as chairman and at least two representatives of the tribal 
governing body or an authorized representative committee. Where such 
persons may be unwilling or unable to serve, the chairman shall select 
at least two adult members of the tribe to serve. In addition, the 
officer in charge may appoint an interpreter and as many clerks and poll 
watchers as he/she deems necessary, but they shall not be members of the 
board.
    (b) It shall be the duty of the board to conduct elections in 
compliance with the procedures described in this part and in particular:

[[Page 261]]

    (1) To see that the name of each person offering to vote is on the 
official list of registered voters;
    (2) To keep the ballot boxes locked at all times except when ballots 
are being counted;
    (3) To see that ballots are cast only by registered voters and that 
the voting list is checked to indicate this;
    (4) To begin to count the regularly cast ballots immediately after 
the close of the polls and then the absentee ballots, pursuant to Sec. 
81.21;
    (5) To post and certify the election returns;
    (6) To return the following to the officer in charge:
    (i) The ballots (in marked and locked boxes);
    (ii) All unused ballots; and
    (iii) The completed Certificate of Results of Election. The officer 
in charge shall retain the ballots and other material among official 
records for at least one year. At the end of one year, the officer in 
charge shall forward the contents of the boxes and other related 
material to the appropriate Federal Records Center.



Sec. 81.9  Voting districts.

    If: (a) Voting districts have not already been designated for tribal 
elections in the tribal constitution or by tribal election ordinance or 
resolution; and (b) in the election board's judgment voting districts 
are needed, the board shall establish them and designate a polling place 
for each district. Where a reservation exists, no voting district may be 
established beyond its boundaries.



Sec. 81.10  District Election Boards.

    (a) Where voting districts have been established by the tribal 
constitution, ordinance, resolution, or by the election board, the 
election board shall appoint district election boards for each district, 
which shall have the duties prescribed above for the election board 
except that they shall return to the election board:
    (1) The ballots (in marked and locked boxes),
    (2) All unused ballots, and
    (3) Their certifications of the district election results on the 
certification forms prescribed by the election board.
    (b) The board will compile the election results for the entire 
reservation and transmit them together with the aforementioned ballots 
and ballot boxes to the officer in charge.



Sec. 81.11  Registration.

    (a) Only registered voters will be entitled to vote, and all 
determinations of the sufficiency of the number of ballots cast will be 
based upon the number of r