[Title 25 CFR F]
[Code of Federal Regulations (annual edition) - April 1, 2002 Edition]
[Title 25 - INDIANS]
[Chapter I - BUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR]
[Subchapter F - TRIBAL GOVERNMENT]
[From the U.S. Government Printing Office]
25INDIANS12002-04-012002-04-01falseTRIBAL GOVERNMENTFSUBCHAPTER FINDIANSBUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR
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.
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 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.
[[Page 216]]
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.).
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 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
[[Page 217]]
used as the basis for the distribution of an apportioned share of
judgment funds awarded the Shawnee Tribe in dockets 64, 335, and 338 by
the Indian Claims Commission and in docket 64-A by the U.S. Court of
Claims of all persons of Cherokee Shawnee ancestry:
(i) Who were living on December 20, 1982;
(ii) Who are lineal descendants of the Shawnee Nation as it existed
in 1854, based on the roll of the Cherokee Shawnee compiled pursuant to
the Act of March 2, 1889 (25 Stat. 994), or any other records acceptable
to the Secretary including eligibility to share in the distribution of
judgment funds awarded the Absentee Shawnee Tribe of Oklahoma on behalf
of the Shawnee Nation in Indian Claims Commission docket 334-B as a
Cherokee Shawnee descendant; and
(iii) Who are not members of the Absentee Shawnee Tribe of Oklahoma
or the Eastern Shawnee Tribe of Oklahoma.
(2) Application forms for enrollment must be filed with the
Director, Muskogee Area Office, Bureau of Indian Affairs, Federal
Building, Muskogee, Oklahoma 74401, by May 9, 1986. Application forms
filed after that date will be rejected for inclusion on the roll being
prepared for failure to file on time regardless of whether the applicant
otherwise meets the qualifications for enrollment.
(d) Miami Indians of Indiana. (1) Pursuant to section 3 of the Act
of December 21, 1982, Pub. L. 97-376, 96 Stat. 1828, a roll is to be
prepared and used as the basis for the distribution of an apportioned
share of judgment funds awarded the Miami Tribe of Oklahoma and the
Miami Indians of Indiana in dockets 124-B and 254 by the U.S. Court of
Claims of all persons of Miami Indian ancestry:
(i) Who were living on December 21, 1982;
(ii) Whose name or the name of a lineal ancestor appears on:
(A) The roll of Miami Indians of Oklahoma and Indiana prepared
pursuant to the Act of June 2, 1972 (86 Stat. 199), or
(B) The roll of Miami Indians of Indiana of June 12, 1895, or
(C) The roll of ``Miami Indians of Indiana, now living in Kansas,
Quapaw Agency, I.T., and Oklahoma Territory,'' prepared and completed
pursuant to the Act of March 2, 1895 (28 Stat. 903), or
(D) The roll of the Eel River Miami Tribe of Indians of May 27,
1889, prepared and completed pursuant to the Act of June 29, 1888 (25
Stat. 223), or
(E) The roll of the Western Miami Tribe of Indians of June 12, 1891
(26 Stat. 1001); and
(iii) Who are not members of the Miami Tribe of Oklahoma.
(2) Application forms for enrollment must be filed with the
Director, Muskogee Area Office, Bureau of Indian Affairs, Federal
Building, Muskogee, Oklahoma 74401, by May 9, 1986. Application forms
filed after that date will be rejected for inclusion on the roll being
prepared for failure to file on time regardless of whether the applicant
otherwise meets the qualifications for enrollment.
(e) Cow Creek Band of Umpqua Tribe of Indians. (1) Pursuant to
section 5 of the Cow Creek Band of Umpqua Tribe of Indians Distribution
of Judgment Funds Act of October 26, 1987, Pub. L. 100-139, a tribal
membership roll is to be prepared comprised of all persons who are able
to establish that they are of Cow Creek or other Indian ancestry
indigenous to the United States based on any rolls or records acceptable
to the Secretary and were not members of any other Federally recognized
Indian tribe on July 30, 1987; and:
(i) Who are named on the tribal roll dated September 13, 1980, the
so-called Interrogatory No. 14 roll;
(ii) Who are descendants of individuals named on the tribal roll
dated September 13, 1980, the so-called Interrogatory No. 14 roll, and
were born on or prior to October 26, 1987; or
(iii) Who are descendants of individuals who were considered to be
members of the Cow Creek Band of Umpqua Tribe of Indians for the
purposes of the treaty entered between such Band and the United States
on September 19, 1853.
(2) Application forms for enrollment must be filed with the
Superintendent, Siletz Agency, Bureau of Indian Affairs, P.O. Box 539,
Siletz, Oregon 97380
[[Page 218]]
by June 1, 1990. Application forms filed after that date will be
rejected for inclusion on the tribal membership roll for failure to file
on time regardless of whether the applicant otherwise meets the
qualifications for enrollment.
(f) Cow Creek Band of Umpqua Tribe of Indians descendants. (1)
Pursuant to section 6(a)(1) of the Cow Creek Band of Umpqua Tribe of
Indians Distribution of Judgment Funds Act of October 26, 1987, Pub. L.
100-139, a roll of nontribal members eligible to participate in the
Higher Education and Vocational Training Program and the Housing
Assistance Program of the Cow Creek Band of Umpqua Tribe of Indians is
to be prepared of individuals:
(i) Who are descended from persons considered members of the Cow
Creek Band of Umpqua Tribe of Indians for purposes of the treaty entered
into between such band and the United States on September 19, 1853 (10
Stat. 1027), as ratified by the Senate on April 12, 1854; and
(ii) Who did not share or are not descendants of persons who shared
in the distribution of funds under the Act entitled ``An Act to provide
for the termination of Federal supervision over the property of the
Klamath Tribe of Indians located in the State of Oregon and the
individuals members thereof, and for other purposes,'' approved August
13, 1954 (25 U.S.C. 564 et seq.), or under the Act entitled ``An Act to
provide for the termination of Federal supervision over the property of
certain tribes and bands of Indians located in western Oregon and the
individual members thereof, and for other purposes,'' approved August
13, 1954 (25 U.S.C. 691 et seq.).
(2) Application forms for enrollment must be filed with the
Superintendent, Siletz Agency, Bureau of Indian Affairs, P. O. Box 539,
Siletz, Oregon 97380. Upon receipt of an application form, the
Superintendent shall furnish a copy to the Cow Creek Band of Umpqua
Tribe of Indians.
(g) Cow Creek Band of Umpqua Tribe of Indians descendants. (1)
Pursuant to section 6(a)(2) of the Cow Creek Band of Umpqua Tribe of
Indians Distribution of Judgment Funds Act of October 26, 1987, Pub. L.
100-139, a roll of nontribal members eligible to participate in the
Elderly Assistance Program of the Cow Creek Band of Umpqua Tribe of
Indians is to be prepared of individuals:
(i) Who are descended from persons considered members of the Cow
Creek Band of Umpqua Tribe of Indians for purposes of the treaty entered
into between such Band and the United States on September 19, 1853 (10
Stat. 1027), as ratified by the Senate on April 12, 1854;
(ii) Who did not share or are not descendants of persons who shared
in the distribution of funds under the Act entitled ``An act to provide
for the termination of Federal supervision over the property of the
Klamath Tribe of Indians located in the State of Oregon and the
individual members thereof, and for other purposes,'' approved August
13, 1954 (25 U.S.C. 564 et seq.), or under the Act entitled ``An Act to
provide for the termination of Federal supervision over the property of
certain tribes and bands of Indians located in western Oregon and the
individual members thereof, and for other purposes,'' approved August
13, 1954 (25 U.S.C. 691 et seq.); and
(iii) Who were 50 years or older as of December 31, 1985.
(2) Application forms for enrollment must be filed with the
Superintendent, Siletz Agency, Bureau of Indian Affairs, P. O. Box 539,
Siletz, Oregon 97380 by April 25, 1988, and with the Cow Creek Band of
Umpqua Tribe of Indians. Application forms filed after that date will be
rejected for failure to file on time regardless of whether the applicant
otherwise meets the qualifications for eligibility for inclusion on the
roll of persons eligible to participate in the Elderly Assistance
Program, but will be considered for inclusion on the roll of persons
eligible to participate in the Higher Education and Vocation Training
Program and the Housing Assistance Program. Upon receipt of an
application form, the Superintendent shall furnish a copy to the Cow
Creek Band of Umpqua Tribe of Indians.
(h) Indians of the Hoopa Valley Indian Reservation. Pursuant to
section 5 of the Hoopa-Yurok Settlement Act of October 31, 1988, Pub. L.
100-580, a roll of Indians of the Reservation eligible to participate in
certain settlement provisions is to be prepared of all persons:
[[Page 219]]
(1) Who were born on or prior to and living on October 31, 1988; and
(2) Who are citizens of the United States; and
(3) Who were not, on August 8, 1988, enrolled members of the Hoopa
Valley Tribe; and
(4) Who meet the criteria to qualify as an ``Indian of the
Reservation'' under one of the following standards established by the
U.S. Court of Claims in its March 31, 1982, decision, and the United
States Claims Court in its May 14, 1987, and March 1, 1988, decisions in
the cases of Short v. United States, (Cl. Ct. No. 102-63):
(i) Standards A-E which are:
(A) Allottees of land on any part of the Reservation, living on
October 1, 1949, and lineal descendants of allottees living on October
1, 1949;
(B) Persons living on October 1, 1949, and resident on the
reservation at that time, who have received Reservation benefits or
services, and hold an assignment, or can make other proof that though
eligible to receive an allotment, they have not been allotted, and the
lineal descendants of such persons, living on October 1, 1949;
(C) Persons living on June 2, 1953, who have at least \1/4\ degree
Reservation blood, as defined in paragraph (h)(6)(i) of this section,
have forebears born on the Reservation and were resident on the
Reservation for 15 years prior to June 2, 1953;
(D) Persons of at least \1/4\ degree Indian blood, born after
October 1, 1949, and before August 9, 1963, to a parent who is or would
have been, when alive a qualified Indian of the Reservation under the
standards in paragraphs (h)(4)(i) (A), (B) and (C) of this section, or
has previously been held entitled to recover in the Short cases;
(E) Persons born on or after August 9, 1963, who are of at least \1/
4\ degree Indian blood, derived exclusively from the qualified parent or
parents who is or would have been, when alive, a qualified Indian of the
Reservation under the standards in paragraphs (h)(4)(i) (A), (B) and (C)
of this section, or has previously been held entitled to recover in the
Short cases; or
(ii) Manifest Injustice Standard which is: Persons who do not
qualify under the standards in paragraph (h)(4)(i) of this section, but
who it would be manifestly unjust to exclude from enrollment. To qualify
under the manifest injustice standard, persons must adequately
demonstrate all of the following:
(A) A significant degree of Indian blood (at least \1/4\ degree
Indian blood, and
(B) Personal connections to the Reservation shown through a
substantial period of residence on the Reservation (nearly ten years of
residence), and
(C) Personal ties to the land of the Reservation and/or ties to the
land through a lineal ancestor; and
(5) Who file or have filed on their behalf application forms for
enrollment with the Superintendent, Northern California Agency, Bureau
of Indian Affairs, P.O. Box 494879, Redding, California 96049, by April
10, 1989. Applications filed after that date will not be considered for
inclusion on the roll regardless of whether the applicant otherwise
meets the qualifications for enrollment, except for plaintiffs
determined to be an ``Indian of the Reservation'' in the Short cases,
who will, if they otherwise meet the requirements of the Act, be
included on the roll.
(6) As used in paragraph (h) of this section:
(i) Reservation blood means the blood of the following tribes or
bands: Yurok; Hoopa/Hupa; Grouse Creek; Hunstand/Hoonsotton/Hoonsolton;
Miskut/Miscotts/Miscolts; Redwood/Chilula; Saiaz/Nongatl/Siahs;
Sermaltion; South Fork; Tish-tang-atan; Karok; Tolowa; Sinkyone/
Sinkiene; Wailake/Wylacki; Wiyot/Humboldt; and Wintun.
(ii) Short cases means the cases entitled Jessie Short et al. v.
United States, (Cl. Ct. No. 102-63); Charlene Ackley v. United States,
(Cl. Ct. No. 460-78); Bret Aastadt v. United States, (Cl. Ct. No. 146-
85L); and Norman Giffen v. United States, (Cl. Ct. No. 746-85L).
(i) [Reserved]
(j) Coquille Tribe of Indians. (1) Pursuant to section 7 of the
Coquille Restoration Act of June 28, 1989, Pub. L. 101-42, a tribal
membership roll is to be prepared comprised of persons of Coquille
Indian ancestry:
(i) Who were born on or before and living on June 28, 1989;
[[Page 220]]
(ii) Who possess at least one-eighth (\1/8\) degree or more Indian
blood;
(iii) Who are not enrolled members of another federally recognized
tribe; and
(iv) Whose names were listed on the Coquille roll prepared pursuant
to the Act of August 30, 1954 (68 Stat. 979; 25 U.S.C. 771), and
approved by the Bureau of Indian Affairs on August 29, 1960;
(v) Whose names were not listed on but who met the requirements to
be listed on the Coquille roll prepared pursuant to the Act of August
30, 1954, and approved by the Bureau of Indian Affairs on August 29,
1960; or
(vi) Who are lineal descendants of persons, living or dead,
identified in paragraphs (j)(1)(iv) and (j)(1)(v) of this section.
(2) To establish eligibility for inclusion on the tribal membership
roll, all persons must file an application form with the Superintendent,
Siletz Agency, Bureau of Indian Affairs, P.O. Box 539, Siletz, Oregon
97380 by January 10, 1991. Application forms filed after that date will
be rejected for inclusion on the roll being prepared for failure to file
on time regardless of whether the applicant otherwise meets the
qualifications for enrollment.
(3) For the purposes of establishing eligibility under paragraph (j)
of this section, any available evidence establishing Coquille ancestry
and the required degree of Indian blood shall be accepted. However,
information shown on the Coquille roll prepared pursuant to the Act of
August 30, 1954, shall be accepted as conclusive evidence of Coquille
ancestry and blood degree information shown on the January 1, 1940,
census roll of nonreservation Indians of the Grand Ronde-Siletz Agency
shall be accepted as conclusive evidence in determining degree of Indian
blood for applicants.
(4) For the purposes of establishing eligibility under paragraph (j)
of this section, persons who may be enrolled members of another
federally recognized tribe or tribes may submit a conditional
relinquishment of membership document in the other tribe or tribes with
their application forms. A conditional relinquishment of membership
document in the other tribe or tribes with their application forms. A
conditional relinquishment will be accepted by the Superintendent only
if it is executed by the person himself or herself unless the person is
legally incompetent, in which case the legal guardian and only the legal
guardian may execute the conditional relinquishment document. In the
case of minors, only the parent or legal guardian may execute a
conditional relinquishment document.
(k)-(q) [Reserved]
(r) Mdewakanton and Wahpakoota Tribe of Sioux Indians. (1) All
lineal descendants of the Mdewakanton and Wahpakoota Tribe of Sioux
Indians who were born on or prior to and were living on October 25,
1972, whose names or the name of a lineal ancestor appears on any
available records and rolls acceptable to the Secretary of the Interior
and who are not members of the Flandreau Santee Sioux Tribe of South
Dakota, the Santee Sioux Tribe of Nebraska, the Lower Sioux Indian
Community at Morton, Minn., the Prairie Island Indian Community at
Welch, Minn., or the Shakopee Mdewakanton Sioux Community of Minnesota
shall be entitled to be enrolled under title I, section 101(b) of the
act of October 25, 1972 (86 Stat. 1168), to share in the distribution of
funds derived from a judgment awarded the Mississippi Sioux Indians.
(2) Applications for enrollment must have been filed with the
Director, Aberdeen Area Office, Bureau of Indian Affairs, 820 South Main
Street, Aberdeen, S. Dak. 57401, and must have been received no later
than November 1, 1973. Applications received after that date will be
denied for failure to file in time regardless of whether the applicant
otherwise meets the requirements for enrollment.
(3) Each application for enrollment with any of the tribes named in
paragraph (r)(1) of this section which may be rejected by the tribes
shall be reviewed by the Director to determine whether the applicant
meets the requirements for enrollment as a descendant of the Mdewakanton
and Wahpakoota Tribe of Sioux Indians under paragraph (r)(1) of this
section. Each rejection notice issued by the tribes shall contain a
statement to the effect that the application is being given such review.
[[Page 221]]
(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 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.
[[Page 222]]
(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]
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
[[Page 223]]
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 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
[[Page 224]]
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.
(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
[[Page 225]]
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, 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.
[[Page 226]]
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 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;
[[Page 227]]
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 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
[[Page 228]]
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 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?
[[Page 229]]
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?
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;
[[Page 230]]
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,
(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
[[Page 231]]
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 ----------.
Secs. 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
[[Page 232]]
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 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,
[[Page 233]]
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;
(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.
[[Page 234]]
(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.
(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.
[[Page 235]]
(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.
Secs. 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.
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
[[Page 236]]
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.
(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
[[Page 237]]
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.
(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.
Secs. 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
[[Page 238]]
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.
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
[[Page 239]]
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 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
[[Page 240]]
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.
(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
[[Page 241]]
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 Secs. 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 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.
[[Page 242]]
(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.
(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
[[Page 243]]
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, 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
[[Page 244]]
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]
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]
[[Page 245]]
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 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.
[[Page 246]]
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 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
[[Page 247]]
the proper time by a duly registered voter. A ballot is cast by duly
placing it in the ballot box or, in the case of absentee voting, when
the ballot is duly received through the mail by the election board.
(e) Charter means the charter of incorporation the Secretary may
issue to a reorganized tribe pursuant to Federal Statute.
(f) Commissioner means the Commissioner of Indian Affairs or his/her
authorized representative.
(g) Constitution or Constitution and Bylaws means the written
organizational framework of any tribe reorganized pursuant to a Federal
Statute for the exercise of governmental powers.
(h) Federal Statute means one of the following: (1) The Act of June
18, 1934, 48 Stat. 984, as amended (Indian Reorganization Act); (2) the
Act of June 26, 1936, 49 Stat. 1967 (Oklahoma Indian Welfare Act); or
(3) the Act of May 1, 1936, 49 Stat. 1250 (Alaska Native Reorganization
Act).
(i) Indian means: (1) All persons who are members of those tribes
listed or eligible to be listed in the Federal Register pursuant to 25
CFR 83.6(b) as recognized by and receiving services from the Bureau of
Indian Affairs; provided, that the tribes have not voted to exclude
themselves from the Act of June 18, 1934, 43 Stat. 984, as amended; and
(2) any person not a member of one of the listed or eligible to be
listed tribes who possesses at least one-half degree of Indian blood.
(j) Invalid ballot means an official cast ballot discovered at the
time the votes are counted which does not comply with the requirements
for voting or is not an official ballot. An invalid ballot is not to be
counted for determining the number of cast ballots.
(k) Member means any Indian who is duly enrolled in a tribe who
meets a tribe's written criteria for membership or who is recognized as
belonging to a tribe by the local Indians comprising the tribe.
(l) Mutilated ballot means an official ballot that has been damaged
to the extent that it is not possible to determine the choice the voter
intended to make. There are two kinds of mutilated official ballots:
(1) A ballot that is mutilated and not cast. In this case, the
mutilated ballot may be exchanged for a new one. If the need arises to
exchange a mutilated absentee ballot, no additional time will be
provided for the new ballot to be received by the election board.
(2) A ballot that is mutilated and cast. A mutilated cast ballot is
to be counted in the same manner as a spoiled cast ballot.
(m) Officer in Charge means the Superintendent, Administrative
Officer, or other official of the local unit of the Bureau of Indian
Affairs (or a Bureau employee that such person might designate) having
administrative jurisdiction over a tribe.
(n) Official ballot means a ballot prepared by the Bureau of Indian
Affairs for use in an election pursuant to this part. It is possible
that an official ballot may be found to be either spoiled or mutilated
at the time the votes are counted.
(o) Registration means the act whereby persons, who are eligible to
vote, become entitled or qualified to cast ballots by having their names
placed on the list of persons who will be permitted to vote.
(p) Reorganized tribe means a tribe whose members have adopted a
constitution pursuant to a Federal Statute.
(q) Reservation means any area established by treaty, Congressional
Act, Executive Order, or otherwise for the use or occupancy of Indians.
(r) Revocation means that act whereby the adult members of a tribe
vote to abandon their constitutional form of government as opposed to
their voting to amend or totally revise it.
(s) Secretarial election means an election held within a tribe
pursuant to regulations prescribed by the Secretary as authorized by
Federal Statute (as distinguished from tribal elections which are
conducted under tribal authority. (See Cheyenne River Sioux Tribe v.
Andrus, 566 F. 2d 1085 (8th Cir., 1977), cert. denied 439 U.S. 820
(1978)).
(t) Secretary means the Secretary of the Interior or his/her
authorized representative.
(u) Spoiled ballot means an official ballot that has been marked in
such a way that it is not possible to determine
[[Page 248]]
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.
(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.
[[Page 249]]
(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.
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.
[[Page 250]]
(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 contitution and
bylaws, amendments thereto, or charter and charter amendments shall be
considered adopted, ratified, or revoked if a majority of those actually
voting are in favor of adoption, ratification, or revocation. The total
vote cast, however, must be at least 30 percent of those entitled to
vote, unless, with regard to amendments, the constitution provides
otherwise. The names of persons appearing on the registration list who
have not reached eighteen years of age by the date of the election,
shall be removed from the list of registered voters when determining
whether the required percentage of participation has been achieved.
Unless the existing constitution or charter provides otherwise, none of
the actions cited in this section shall become effective until they are
approved by the Secretary. The validity of any charter ratification
shall be dependent upon the tribe first having reorganized. Duly
ratified charters shall be revoked or surrendered only by Act of
Congress.
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:
(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.
[[Page 251]]
(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 registered voters. The election board, upon
receipt of authorization to conduct an election, shall notify by regular
mail all adult members of the tribe, who to its knowledge are eligible
to vote pursuant to Sec. 81.6 of the need to register if they intend to
vote. Any tribal member who, to the election board's knowledge, will
become 18 years of age within 150 days (180 days for Alaska tribes) from
the date of authorization and who is otherwise eligible to vote shall
also be notified and shall be eligible to register, provided that such a
person shall not be entitled to vote if election day falls before the
individual's 18th birthday. This notice shall be sent to an individual's
last known address as it appears on the records of the local unit of the
Bureau of Indian Affairs having jurisdiction. Each notice addressed to a
tribal member not residing on the reservation shall be accompanied by a
preaddressed registration form (BIA Form 8302) which shall set forth the
following information in the upper right corner:
(1) OMB Clearance Number 1076-003, Expires June 30, 1983;
(2) The name and address of the person desiring to register;
(3) A statement with a signature line attesting that the individual
is a tribal member and is at least 18 years of age, or will be within
150 days, (180 days for Alaska tribes) from the date of authorization;
and
(4) The three following statements: ``Completion of and return of
this registration form is necessary if you desire to become qualified to
vote in the forthcoming constitutional or charter election.'' ``This
form, upon completion and return to the election board, shall be the
basis for determining whether you qualify to have your name placed upon
the list of registered voters and receive a ballot'' and ``completion
and return of this form is voluntary.'' Members who qualify as absentee
voters and wish to cast an absentee ballot must complete and return the
above registration form before, or in conjunction with, requesting an
absentee ballot in sufficient time to permit compliance with Sec. 81.12.
(b) The following records shall be kept for all notices:
(1) Names and addresses of persons to whom notices are mailed;
(2) Date of mailing; and
(3) A copy of each return registration request (including from whom
received and date and time of receipt).
Tribal members living on the reservation who desire to vote must
register with the election board in the manner it determines in time to
permit compliance with Sec. 81.12. Registration procedures for such
Indians shall be included in the notice of the need to register to
resident members.
[46 FR 1670, Jan. 7, 1981, as amended at 46 FR 38352, July 27, 1981.
Redesignated at 47 FR 13327, Mar. 30, 1982]
Sec. 81.12 Voting list.
The election board shall compile in alphabetical order an official
list of registered voters arranged by voting districts, if any. This
list shall designate, where applicable, those who have requested an
absentee ballot and the members of the tribe who are or will have
attained the age of 18 years within 150 days (180 days for Alaska
tribes) from the date an election is authorized and who have duly
registered to vote. A copy of this list shall be supplied to any
district election board and shall be posted at the headquarters of the
local administrative unit of the Bureau of Indian Affairs, the tribal
headquarters, and at various other public places designated by the
election board at least 20 days prior to the election.
Sec. 81.13 Eligibility disputes.
The election board shall determine the eligibility of any written
claim to vote presented to it by one whose name does not appear on the
official list of registered voters as well as any written challenge of
the right to vote of anyone whose name is on the list. Its decision
shall be final. It shall rule on all claims no later than ten days
before
[[Page 252]]
the election. Any claim not presented at least ten days before the
election shall be disallowed. Nonresident claimants successfully
appealing omission from the list shall immediately be furnished an
absentee ballot. Omission of names from the voters list due to late
registration, if notification (pursuant to Sec. 81.14) has been timely
mailed, shall not be considered grounds for challenge.
Sec. 81.14 Election notices.
Not less than 30 nor more than 60 days notice shall be given of the
date of the election. Such notice shall include the location of where
the results will be posted. The notice shall also advise that persons
must register if they intend to vote. The election board shall determine
whether the notice will be given by television, radio, newspaper,
poster, or mail, or by more than one of these methods and whether in an
Indian language in addition to English. A copy of any written election
notice may be mailed to each registered voter and shall be posted at the
local administrative unit of the Bureau of Indian Affairs and elsewhere
as directed by the election board. At any time after receiving
Secretarial authorization to hold the election, the board shall make
available to the adult members of the tribe the text of any amendment or
proposed constitution and bylaws, amendment thereto, charter, or charter
amendment. The election board may determine the manner and timing of the
distribution. However, the text shall be posted at least within the
local administrative unit of the Bureau and the tribal headquarters
within two days following the giving of notice of the election date by
the election board.
Sec. 81.15 Opening and closing of polls.
If polling places are established, the polls shall remain open from
8 a.m. to 7 p.m., local time, unless different hours are set by the
election board and the voters are informed of this in the election
notice.
Sec. 81.16 Interpreters.
Interpreters, where needed, may be provided to explain the manner of
voting to any voter who asks for instructions; provided, that all
reasonable precautions are taken to ensure that the interpreter does not
influence the voter in casting the ballot. The interpreter may accompany
the voter into the booth upon the latter's request.
Sec. 81.17 Electioneering.
There shall be no electioneering during voting hours within 50 feet
of any voting place. Sample ballots will be permitted in the voting
booth.
Sec. 81.18 Manner of voting.
(a) Registered voters may vote by arriving at the appropriate
polling place within the prescribed voting hours telling officials their
names and addresses, signing their signature or mark on the voting list,
and by marking and placing in the ballot box the ballots which will be
handed to them. Voting shall be by secret ballot.
(b) Voting may take place at the same time regarding the adoption of
a constitution, the ratification of a charter, or the amendment of such
documents; provided, that entitlement to vote for the proposal is
consistent with Sec. 81.6 of this part and, provided further, that no
charter shall be considered ratified if the proposed constitution is not
adopted and approved.
(c) The election board may choose not to use polling places and
provide for the issuance and receipt of ballots entirely through the the
United States Postal Service. In that event, the election board shall
use the appropriate procedures set forth in this part relating to
absentee balloting.
Sec. 81.19 Absentee voting.
(a) Nonresident members who have registered may vote by absentee
ballot except as prohibited by Sec. 81.6. Also, whenever, due to
temporary absence from the reservation, illness, or physical disability,
a registered and otherwise eligible voter is not able to vote at the
polls and notifies the election board, the voter shall be entitled to
vote by absentee ballot. Upon his or her request, the election board
shall give or mail absentee ballots to registered voters who may be
entitled to receive them pursuant to Sec. 81.6. At the same time, such
voters will also be provided a copy of the proposal to be voted upon
when the full text does not appear
[[Page 253]]
on the ballot. Appropriate records shall be kept of those from whom
requests are received and the date they were received. The election
board shall allow an absentee voter no less than ten days from the
mailing out of an absentee ballot to receive and return the ballot. This
period shall not be afforded absentee voters desiring to exchange a
mutilated or spoiled ballot less than ten days before the election date.
While requests for absentee ballots received less than ten days before
an election will be promptly honored, no absentee ballot will be counted
if received later than either the close of the polls or after some other
deadline established by the election board. The election board shall
furnish election officials the names of individuals who have been given
or had mailed to them an absentee ballot.
(b) Accompanying the absentee ballot shall be:
(1) An inner envelope bearing on the outside, the words ``Absentee
Ballot,''
(2) Instructions for completion of the absentee ballot,
(3) A copy of the proposed amendment, and
(4) A preaddressed outer envelope, imprinted on the back with a
certificate as follows:
I, (name of voter), hereby certify that I am a qualified voter of
the (name) Tribe of Indians; that I will be 18 years of age or over at
the election date and am entitled to vote in the election to be held on
(date of election); and that I cannot appear at the polling place on the
reservation on the date of the election because (indicate one of the
following reasons): I am a non resident voter [squ]; or I expect to be
temporarily absent from the reservation [squ]; or because of illness
[squ]; or physical disability [squ]; or because no polling place has
been established [squ]. I further certify that I marked the enclosed
ballot in secret.
Signed:--------------(voter's signature).
(c) The absentee voter shall mark the ballot and the ballot shall
then be folded so as to conceal the marking and be placed in the
envelope marked ``Absentee Ballot'' and the envelope sealed. The voter
shall then place the sealed envelope marked ``Absentee Ballot'' in the
outer envelope, seal it and complete the certificate and mail it. The
preaddressed outer envelope shall be directed to the election board at
the reservation. Absentee ballots must be received by the election board
not later than the close of the polls or as otherwise directed by the
election board.
(d) The election board shall make and keep a record of ballots
mailed, to whom mailed, the date of mailing, the address on the
envelope, the date of the return of the ballot, and from whom received.
After duly recording the receipt date of absentee ballots received on
time, representatives of the election board shall open the outer
envelopes, secure them and place the unmarked inner envelopes containing
the ballots in a separate box reserved for that purpose. After all other
ballots have been counted, the absentee ballots shall be counted
immediately and included in the results of the election.
Sec. 81.20 Ballots.
(a) Ballots are to be prepared clearly and simply so that it is easy
for the voters to indicate a choice between no more than two
alternatives. For example, if a tribal council or the petitioners
propose to reduce the one-half degree blood quantum required to qualify
for membership but want the voters to decide whether it should be one-
fourth or one-eight, it would not be appropriate to put those two
alternatives on the ballot. Doing so, would deny the voters an
opportunity to vote for keeping the one-half degree blood quantum.
Neither would it be appropriate to include all three blood quantum
alternatives. Rather, those proposing the change should decide which
blood quantum is to be submitted to the voters. The ballot in the
Secretarial election would then give the electors the choice of marking
either ``yes'' or ``no.'' A vote against the proposed change would be in
favor of keeping the one-half degree blood quantum in the example.
(b) In preparing ballots for proposed amendments, care should be
taken to ensure that:
(1) Each proposed amendment addresses only a single question.
(2) If a proposed amendment conflicts with other provisions of the
document being amended, the ballot shall be prepared so that the
question includes all changes in those other directly related
[[Page 254]]
provisions in order to avoid contradictions within the document.
(3) When more than one amendment is being submitted to the voters at
a given election, the proposals shall be identified with alphabetical
designations rather than numerical. The first of the several proposals
would be labeled ``Proposed Amendment A,'' the next would be ``Proposed
Amendment B,'' etc. Those amendments that are adopted and approved would
then be assigned consecutive numbers to follow those assigned any
earlier amendments that may have been make to that governing document. A
statement similar to the following shall appear on each of the proposed
amendments and shall be completed following the election:
Having been duly adopted and approved, Proposed Amendment (A,B,C,
etc.) is hereby designated as Amendment No. -- to the (Constitution,
Charter, etc.) of the (name of tribe) Tribe.
(c) The election board will supply all ballots. Each ballot shall be
stamped in red ink on its face in the same place:
OFFICIAL BALLOT
(Facsimile Signature)
CHAIRMAN, ELECTION BOARD
(d) Should any voter spoil or mutilate a ballot in the course of
voting at a poll, the voter shall destroy it in the presence of the
election officials and the election officials shall then make note of
the destroyed ballot and furnish the voter with another ballot.
(e) Any spoiled or mutilated absentee ballot may be exchanged for a
new one by returning it to the election board with a request for
another. The board shall honor the request promptly and note the dates
of related actions. No extension of time will be granted for receipt of
exchanged ballots that might not be cast on time.
Sec. 81.21 Counting of ballots.
All duly cast ballots are to be counted. Even though it will not be
possible to determine the intent of the voter regarding spoiled and
mutilated ballots, they are to be counted for purposes of determining
whether the required percentage of voters have cast their ballots in the
election. Invalid ballots shall not be counted for purposes of
determining the required percentage of votes cast.
Sec. 81.22 Contesting of election results.
Any qualified voter, within three days following the posting of the
results of an election, may challenge the election results by filing
with the Secretary through the officer in charge the grounds for the
challenge, together with substantiating evidence. If in the opinion of
the Secretary, the objections are valid and warrant a recount or new
election, the Secretary shall order a recount or a new election. The
results of the recount or new election shall be final.
Sec. 81.23 Posting and certifying election results.
(a) The results of the election shall be posted in the local Bureau
of Indian Affairs office, tribal headquarters, and at other appropriate
public places determined by the election board.
(b) The election board shall certify the results of the election on
the following form and transmit them to the local unit of the Bureau of
Indian Affairs:
Certificate of Results of Election
Pursuant to a Secretarial election authorized by the (title of
authorizing officer) on (date), the attached Constitution and Bylaws
(Amendment, Charter or Charter Amendment) of the (name of tribe) was
submitted to the qualified voters of the tribe and on (date), was duly
(adopted) (ratified) (rejected) or (revoked) by a vote of (number) for
and (number) against and (number) cast ballots found spoiled or
mutilated in an election in which at least 30 percent (or such
``percentages'' as may be required to amend according to the
constitution) of the (number) members entitled to vote, cast their
ballot in accordance with (appropriate Federal statute). Signed: (By the
chairman of the election board and board members.)
Date: ------------------------
Sec. 81.24 Approval, disapproval, or rejection action.
(a) Action to approve or disapprove constitutional actions will be
taken promptly by the authorizing officer following receipt of the
original text of the material voted upon and the original of the
Certificate of Results of Election from the officer in charge.
[[Page 255]]
(1) When required and granted, the authorizing officer shall furnish
a tribe with written approval of constitutional actions. In the absence
of an election challenge, the approval shall be issued promptly
following the expiration of the contest period. Copies of his/her
written approval, the Certificate of Results of Election, and the text
of the material voted upon shall be transmitted to the Commissioner of
Indian Affairs, 18th and C Streets, NW., Washington, DC 20245.
(2) When a proposed constitution or charter action is rejected by
the voters, the authorizing officer shall indicate in writing to the
tribe his/her awareness of the election results and send to the
Commissioner of Indian Affairs in Washington, DC, copies of the
communication, the Certificate of Results of Election and the text of
the material voted upon.
(3) When the authorizing officer disapproves a constitutional
action, he/she shall in writing promptly notify the tribe of the
determination and furnish the Commissioner of Indian Affairs in
Washington, DC, a copy of the communication along with the Certificate
of Results of Election and the text of the material voted upon.
(b) Where Secretarial approval of proposed constitutional and
charter actions is required in conjunction with authorization of an
election, copies of the formal approval shall immediately be furnished
the Commissioner of Indian Affairs in Washington, DC, by the authorizing
officer and be followed in accordance with paragraph (a)(1) of this
section by copies of the Certificate of the Results of Election and the
text of the material voted upon as soon as it is available.
PART 82--PETITIONING PROCEDURES FOR TRIBES REORGANIZED UNDER FEDERAL STATUTE AND OTHER ORGANIZED TRIBES--Table of Contents
Sec.
82.1 Definitions.
82.2 Purpose and scope.
82.3 Applicability to tribal groups.
82.4 Entitlement to petition.
82.5 Sufficiency of a petition.
82.6 Petition format.
82.7 Notarization of petition signatures.
82.8 Filing of petitions.
82.9 Challenges.
82.10 Action on the petition.
82.11 Duration of petition.
Authority: 5 U.S.C. 301, and 25 U.S.C. 2, 9, 473a, 476, 477 and 503.
Source: 46 FR 1675, Jan. 7, 1981, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
Sec. 82.1 Definitions.
As used in this part:
(a) Area Director means the Director of the Bureau Area Office
having administrative jurisdiction over the petitioners' tribe.
(b) Bureau means the Bureau of Indian Affairs.
(c) Charter means a charter of incorporation the Secretary may issue
to a recognized tribe pursuant to a Federal Statute.
(d) Commissioner means the Commissioner of Indian Affairs or his/her
authorized representative.
(e) Constitution or Constitution and Bylaws means the written
organizational framework of any tribe for the exercise of governmental
powers.
(f) Eligible, entitled, or qualified voter means the status achieved
by a tribal member who meets the requirement of a tribal constitution or
election ordinance to vote in a tribal election; provided, that where a
tribe has reorganized pursuant to a Federal Statute, to be an entitled
or a qualified voter for purposes of this part, the tribal member must
be at least 18 years of age and be eligible to register for voting in a
Secretarial election (see part 81 of this chapter).
(g) Federal Statute means one of the following: (1) The Act of June
18, 1934, 48 Stat. 984, as amended (Indian Reorganization Act), (2) the
Act of June 26, 1936, 49 Stat. 1967 (Oklahoma Indian Welfare Act), or
(3) the Act of May 1, 1936, 49 Stat. 1250 (Alaska Native Reorganization
Act).
(h) Local Bureau Official means the Superintendent, Field
Representative, or other line officer of the Bureau of Indian Affairs
who has local administrative jurisdiction over the tribe concerned.
(i) Local Bureau unit means the Bureau office having local
administrative jurisdiction over the tribe concerned.
[[Page 256]]
(j) Member means any person who is duly enrolled in a tribe, who
meets a tribe's written criteria for membership, or is recognized as
belonging to a tribe by the local Indians comprising that tribe.
(k) Organized tribe means any tribe that has adopted a constitution
outside of a Federal Statute.
(l) Reorganized tribe means any tribe that has adopted a
constitution pursuant to a Federal Statute.
(m) Secretarial election means an election held within a tribe
pursuant to regulations prescribed by the Secretary (as distinguished
from tribal elections which are conducted under tribal authority (See
Cheyenne River Sioux Tribe v. Andrus, 566 F.2d 1085 (8th Cir., 1977),
cert. denied 439 U.S. 820 (1978)).
(n) Secretary means the Secretary of the Interior or his/her
authorized representative.
(o) Spokesman for the petitioners means the authorized voter of a
tribe initiating a petition or designated by the initiators of a
petition to speak on their behalf.
(p) Tribe means any Indian entity that is listed or is eligible to
be listed in the Federal Register pursuant to Sec. 83.6(b) of this
chapter as recognized and receiving services from the Bureau that has
adopted a constitution approved by the Secretary or the Commissioner.
Sec. 82.2 Purpose and scope.
The purpose of this part is to provide uniformity and order in the
formulation and submission of petitions requesting the Secretary or the
Commissioner to call elections to amend tribal constitutions, to issue
charters pursuant to a Federal Statute, and for such other purposes
where constitutions and charters provide for petitioning to effect
action by the Secretary or Commissioner.
Sec. 82.3 Applicability to tribal groups.
The regulations in this part apply:
(a) To any tribe which provides in its constitution for petitioning
the Secretary or the Commissioner to call elections to amend the tribal
constitution;
(b) To any tribe whose constitution or charter provides for
petitioning to effect any other action by the Secretary or Commissioner;
and
(c) To those tribal members at least 18 years of age who, pursuant
to a Federal Statute, may wish to petition the Secretary to issue a
charter to their tribe.
Sec. 82.4 Entitlement to petition.
All members eligible to vote in elections conducted by a tribe shall
be entitled to sign petitions to effect actions by the Secretary or
Commissioner within the scope of Sec. 82.2; provided, that where a tribe
is reorganized pursuant to a Federal Statute, only persons eligible to
register for Secretarial elections may petition.
Sec. 82.5 Sufficiency of a petition.
(a) The numerical sufficiency of any petition submitted pursuant to
this part shall be based upon a number determined by the local Bureau
official:
(1) By consultation with the tribal governing body regarding the
current number of tribal voters; or
(2) For reorganized tribes, the number of members considered
eligible to register for a Secretarial election and who are at least 18
years of age.
(b) The number shall be made available to the spokesman for the
petitioners upon request along with a cut-off date when, for purposes of
the petition, no further names will be added.
Sec. 82.6 Petition format.
Petitions may consist of as many pages as are necessary to
accommodate the signatures of the petitioners. However, each sheet of a
petition must set forth at least a summary of the objectives of the
petitioners and must show the date upon which the petition was signed by
each individual as well as the current mailing address of each signer.
Sec. 82.7 Notarization of petition signatures.
(a) Signatures to a petition must be authenticated in one of the
following ways:
(1) Through having each signer subscribe or acknowledge his/her
signature before a notary public;
(2) Through having the collector of signatures appeal before a
notary and sign, in his/her presence, on each sheet
[[Page 257]]
of the petition, a statement attesting that the signatures were affixed
on the dates shown and by the individuals whose names appear thereon,
and that to the best of his/her knowledge the signatories are eligible,
entitled, or qualified voters.
(b) Only an eligible, entitled, or qualified tribal voter shall be
recognized as a valid collector of petition signatures.
Sec. 82.8 Filing of petitions.
All petitions submitted pursuant to this part must be filed with the
local Bureau official having administrative jurisdiction over the tribe.
No petitions will be accepted until a spokesman for the petitioners
declares that he/she wishes to make an official filing. Once a
declaration of the official filing is made and the petition is given to
the local Bureau official, that official shall immediately enter on the
petition the date of receipt (this date becomes the date of official
filing) and shall inform the spokesman for the petitioners that no
additional signatures may be added and that no withdrawal of signatures
will be permitted. The local Bureau official shall also acknowledge, in
writing, receipt of the petition, indicating the exact number of
signatures which are attached and the official filing date. Upon this
written acknowledgment of the petition, the local Bureau official shall
publicly post at the local Bureau unit serving the tribe a statement of
the matter proposed in the petition. This statement shall remain posted
for a period of 30 days from the official filing date.
Sec. 82.9 Challenges.
(a) Once an official filing has been made, the local Bureau official
shall immediately have copies made of the petition and its signatures.
The local Bureau official shall keep these copies at the Agency or field
office for 15 days following the date of official filing, during which
time they shall be available for examination by authorized voters of the
tribe upon request. During this 15-day period, challenges of signatures
may be filed with the local Bureau official.
(b) Challenges will be considered on the following grounds:
(1) Forgery of signatures; and
(2) Lack of proper qualifications of a signer.
No challenge will be considered which is not accompanied by supporting
evidence in writing. In the event that an individual's name appears on a
petition more than once, all but one of the names shall be stricken.
Sec. 82.10 Action on the petition.
(a) Within 30 days after the official filing date, the local Bureau
official shall forward to the Area Director, or when the Area Director
is the local Bureau official, directly to the Commissioner, the original
of the petition and its accompanying signatures, together with
recommendations concerning challenges and conclusions concerning:
(1) The validity of the signatures;
(2) The adequacy of the number of signatures; and
(3) The propriety of the petitioning procedure.
(b) The Area Director or the Commissioner, as the case may be, shall
within 45 days after the official filing date decide upon each challenge
and the sufficiency of the petition and announce whether the petition
shall be acted upon. If a decision is reached that the petitioning
action is for any reason insufficient, the spokesman for the petitioners
and the governing body of the tribe will be so informed and given the
reasons for the decision. If a petitioning action warrants action by the
Secretary or Commissioner, the spokesman for the petitioners and the
governing body of the tribe concerned will be so informed. The decision
in such matters shall be final. The procedures for implementing any
action initiated by the acceptance of a petition will be determined in
accordance with pertinent directives and regulations.
Sec. 82.11 Duration of petition.
Any petition submitted under this part, shall be considered only for
the purpose stated therein. Once a petition has been acted upon, it
shall not be used again.
[[Page 258]]
PART 83--PROCEDURES FOR ESTABLISHING THAT AN AMERICAN INDIAN GROUP EXISTS AS AN INDIAN TRIBE--Table of Contents
Sec.
83.1 Definitions.
83.2 Purpose.
83.3 Scope.
83.4 Filing a letter of intent.
83.5 Duties of the Department.
83.6 General provisions for the documented petition.
83.7 Mandatory criteria for Federal acknowledgment.
83.8 Previous Federal acknowledgment
83.9 Notice of receipt of a petition.
83.10 Processing of the documented petition.
83.11 Independent review, reconsideration and final action.
83.12 Implementation of decisions.
83.13 Information collection.
Authority: 5 U.S.C. 301; 25 U.S.C. 2 and 9; 43 U.S.C. 1457; and 209
Departmental Manual 8.
Source: 59 FR 9293, Feb. 25, 1994, unless otherwise noted.
Sec. 83.1 Definitions.
As used in this part:
Area Office means a Bureau of Indian Affairs Area Office.
Assistant Secretary means the Assistant Secretary--Indian Affairs,
or that officer's authorized representative.
Autonomous means the exercise of political influence or authority
independent of the control of any other Indian governing entity.
Autonomous must be understood in the context of the history, geography,
culture and social organization of the petitioning group.
Board means the Interior Board of Indian Appeals.
Bureau means the Bureau of Indian Affairs.
Community means any group of people which can demonstrate that
consistent interactions and significant social relationships exist
within its membership and that its members are differentiated from and
identified as distinct from nonmembers. Community must be understood in
the context of the history, geography, culture and social organization
of the group.
Continental United States means the contiguous 48 states and Alaska.
Continuously or continuous means extending from first sustained
contact with non-Indians throughout the group's history to the present
substantially without interruption.
Department means the Department of the Interior.
Documented petition means the detailed arguments made by a
petitioner to substantiate its claim to continuous existence as an
Indian tribe, together with the factual exposition and all documentary
evidence necessary to demonstrate that these arguments address the
mandatory criteria in Sec. 83.7(a) through (g).
Historically, historical or history means dating from first
sustained contact with non-Indians.
Indian group or group means any Indian or Alaska Native aggregation
within the continental United States that the Secretary of the Interior
does not acknowledge to be an Indian tribe.
Indian tribe, also referred to herein as tribe, means any Indian or
Alaska Native tribe, band, pueblo, village, or community within the
continental United States that the Secretary of the Interior presently
acknowledges to exist as an Indian tribe.
Indigenous means native to the continental United States in that at
least part of the petitioner's territory at the time of sustained
contact extended into what is now the continental United States.
Informed party means any person or organization, other than an
interested party, who requests an opportunity to submit comments or
evidence or to be kept informed of general actions regarding a specific
petitioner.
Interested party means any person, organization or other entity who
can establish a legal, factual or property interest in an acknowledgment
determination and who requests an opportunity to submit comments or
evidence or to be kept informed of general actions regarding a specific
petitioner. ``Interested party'' includes the governor and attorney
general of the state in which a petitioner is located, and may include,
but is not limited to, local governmental units, and any recognized
Indian tribes and unrecognized Indian groups that might be affected by
an acknowledgment determination.
[[Page 259]]
Letter of intent means an undocumented letter or resolution by which
an Indian group requests Federal acknowledgment as an Indian tribe and
expresses its intent to submit a documented petition.
Member of an Indian group means an individual who is recognized by
an Indian group as meeting its membership criteria and who consents to
being listed as a member of that group.
Member of an Indian tribe means an individual who meets the
membership requirements of the tribe as set forth in its governing
document or, absent such a document, has been recognized as a member
collectively by those persons comprising the tribal governing body, and
has consistently maintained tribal relations with the tribe or is listed
on the tribal rolls of that tribe as a member, if such rolls are kept.
Petitioner means any entity that has submitted a letter of intent to
the Secretary requesting acknowledgment that it is an Indian tribe.
Political influence or authority means a tribal council, leadership,
internal process or other mechanism which the group has used as a means
of influencing or controlling the behavior of its members in significant
respects, and/or making decisions for the group which substantially
affect its members, and/or representing the group in dealing with
outsiders in matters of consequence. This process is to be understood in
the context of the history, culture and social organization of the
group.
Previous Federal acknowledgment means action by the Federal
government clearly premised on identification of a tribal political
entity and indicating clearly the recognition of a relationship between
that entity and the United States.
Secretary means the Secretary of the Interior or that officer's
authorized representative.
Sustained contact means the period of earliest sustained non-Indian
settlement and/or governmental presence in the local area in which the
historical tribe or tribes from which the petitioner descends was
located historically.
Tribal relations means participation by an individual in a political
and social relationship with an Indian tribe.
Tribal roll, for purposes of these regulations, means a list
exclusively of those individuals who have been determined by the tribe
to meet the tribe's membership requirements as set forth in its
governing document. In the absence of such a document, a tribal roll
means a list of those recognized as members by the tribe's governing
body. In either case, those individuals on a tribal roll must have
affirmatively demonstrated consent to being listed as members.
Sec. 83.2 Purpose.
The purpose of this part is to establish a departmental procedure
and policy for acknowledging that certain American Indian groups exist
as tribes. Acknowledgment of tribal existence by the Department is a
prerequisite to the protection, services, and benefits of the Federal
government available to Indian tribes by virtue of their status as
tribes. Acknowledgment shall also mean that the tribe is entitled to the
immunities and privileges available to other federally acknowledged
Indian tribes by virtue of their government-to-government relationship
with the United States as well as the responsibilities, powers,
limitations and obligations of such tribes. Acknowledgment shall subject
the Indian tribe to the same authority of Congress and the United States
to which other federally acknowledged tribes are subjected.
Sec. 83.3 Scope.
(a) This part applies only to those American Indian groups
indigenous to the continental United States which are not currently
acknowledged as Indian tribes by the Department. It is intended to apply
to groups that can establish a substantially continuous tribal existence
and which have functioned as autonomous entities throughout history
until the present.
(b) Indian tribes, organized bands, pueblos, Alaska Native villages,
or communities which are already acknowledged as such and are receiving
services from the Bureau of Indian Affairs may not be reviewed under the
[[Page 260]]
procedures established by these regulations.
(c) Associations, organizations, corporations or groups of any
character that have been formed in recent times may not be acknowledged
under these regulations. The fact that a group that meets the criteria
in Sec. 83.7 (a) through (g) has recently incorporated or otherwise
formalized its existing autonomous political process will be viewed as a
change in form and have no bearing on the Assistant Secretary's final
decision.
(d) Splinter groups, political factions, communities or groups of
any character that separate from the main body of a currently
acknowledged tribe may not be acknowledged under these regulations.
However, groups that can establish clearly that they have functioned
throughout history until the present as an autonomous tribal entity may
be acknowledged under this part, even though they have been regarded by
some as part of or have been associated in some manner with an
acknowledged North American Indian tribe.
(e) Further, groups which are, or the members of which are, subject
to congressional legislation terminating or forbidding the Federal
relationship may not be acknowledged under this part.
(f) Finally, groups that previously petitioned and were denied
Federal acknowledgment under these regulations or under previous
regulations in part 83 of this title, may not be acknowledged under
these regulations. This includes reorganized or reconstituted
petitioners previously denied, or splinter groups, spin-offs, or
component groups of any type that were once part of petitioners
previously denied.
(g) Indian groups whose documented petitions are under active
consideration at the effective date of these revised regulations may
choose to complete their petitioning process either under these
regulations or under the previous acknowledgment regulations in part 83
of this title. This choice must be made by April 26, 1994. This option
shall apply to any petition for which a determination is not final and
effective. Such petitioners may request a suspension of consideration
under Sec. 83.10(g) of not more than 180 days in order to provide
additional information or argument.
Sec. 83.4 Filing a letter of intent.
(a) Any Indian group in the continental United States that believes
it should be acknowledged as an Indian tribe and that it can satisfy the
criteria in Sec. 83.7 may submit a letter of intent.
(b) Letters of intent requesting acknowledgment that an Indian group
exists as an Indian tribe shall be filed with the Assistant Secretary--
Indian Affairs, Department of the Interior, 1849 C Street, NW.,
Washington, DC 20240. Attention: Branch of Acknowledgment and Research,
Mail Stop 2611-MIB. A letter of intent may be filed in advance of, or at
the same time as, a group's documented petition.
(c) A letter of intent must be produced, dated and signed by the
governing body of an Indian group and submitted to the Assistant
Secretary.
Sec. 83.5 Duties of the Department.
(a) The Department shall publish in the Federal Register, no less
frequently than every three years, a list of all Indian tribes entitled
to receive services from the Bureau by virtue of their status as Indian
tribes. The list may be published more frequently, if the Assistant
Secretary deems it necessary.
(b) The Assistant Secretary shall make available revised and
expanded guidelines for the preparation of documented petitions by
September 23, 1994. These guidelines will include an explanation of the
criteria and other provisions of the regulations, a discussion of the
types of evidence which may be used to demonstrate particular criteria
or other provisions of the regulations, and general suggestions and
guidelines on how and where to conduct research. The guidelines may be
supplemented or updated as necessary. The Department's example of a
documented petition format, while preferable, shall not preclude the use
of any other format.
(c) The Department shall, upon request, provide petitioners with
suggestions and advice regarding preparation of the documented petition.
The Department shall not be responsible for
[[Page 261]]
the actual research on behalf of the petitioner.
(d) Any notice which by the terms of these regulations must be
published in the Federal Register, shall also be mailed to the
petitioner, the governor of the state where the group is located, and to
other interested parties.
(e) After an Indian group has filed a letter of intent requesting
Federal acknowledgment as an Indian tribe and until that group has
actually submitted a documented petition, the Assistant Secretary may
contact the group periodically and request clarification, in writing, of
its intent to continue with the petitioning process.
(f) All petitioners under active consideration shall be notified, by
April 16, 1994, of the opportunity under Sec. 83.3(g) to choose whether
to complete their petitioning process under the provisions of these
revised regulations or the previous regulations as published, on
September 5, 1978, at 43 FR 39361.
(g) All other groups that have submitted documented petitions or
letters of intent shall be notified of and provided with a copy of these
regulations by July 25, 1994.
Sec. 83.6 General provisions for the documented petition.
(a) The documented petition may be in any readable form that
contains detailed, specific evidence in support of a request to the
Secretary to acknowledge tribal existence.
(b) The documented petition must include a certification, signed and
dated by members of the group's governing body, stating that it is the
group's official documented petition.
(c) A petitioner must satisfy all of the criteria in paragraphs (a)
through (g) of Sec. 83.7 in order for tribal existence to be
acknowledged. Therefore, the documented petition must include thorough
explanations and supporting documentation in response to all of the
criteria. The definitions in Sec. 83.1 are an integral part of the
regulations, and the criteria should be read carefully together with
these definitions.
(d) A petitioner may be denied acknowledgment if the evidence
available demonstrates that it does not meet one or more criteria. A
petitioner may also be denied if there is insufficient evidence that it
meets one or more of the criteria. A criterion shall be considered met
if the available evidence establishes a reasonable likelihood of the
validity of the facts relating to that criterion. Conclusive proof of
the facts relating to a criterion shall not be required in order for the
criterion to be considered met.
(e) Evaluation of petitions shall take into account historical
situations and time periods for which evidence is demonstrably limited
or not available. The limitations inherent in demonstrating the
historical existence of community and political influence or authority
shall also be taken into account. Existence of community and political
influence or authority shall be demonstrated on a substantially
continuous basis, but this demonstration does not require meeting these
criteria at every point in time. Fluctuations in tribal activity during
various years shall not in themselves be a cause for denial of
acknowledgment under these criteria.
(f) The criteria in Sec. 83.7 (a) through (g) shall be interpreted
as applying to tribes or groups that have historically combined and
functioned as a single autonomous political entity.
(g) The specific forms of evidence stated in the criteria in
Sec. 83.7 (a) through (c) and Sec. 83.7(e) are not mandatory
requirements. The criteria may be met alternatively by any suitable
evidence that demonstrates that the petitioner meets the requirements of
the criterion statement and related definitions.
Sec. 83.7 Mandatory criteria for Federal acknowledgment.
The mandatory criteria are:
(a) The petitioner has been identified as an American Indian entity
on a substantially continuous basis since 1900. Evidence that the
group's character as an Indian entity has from time to time been denied
shall not be considered to be conclusive evidence that this criterion
has not been met. Evidence to be relied upon in determining a group's
Indian identity may include one or a combination of the following, as
well as other evidence of identification by other than the petitioner
itself or its members.
[[Page 262]]
(1) Identification as an Indian entity by Federal authorities.
(2) Relationships with State governments based on identification of
the group as Indian.
(3) Dealings with a county, parish, or other local government in a
relationship based on the group's Indian identity.
(4) Identification as an Indian entity by anthropologists,
historians, and/or other scholars.
(5) Identification as an Indian entity in newspapers and books.
(6) Identification as an Indian entity in relationships with Indian
tribes or with national, regional, or state Indian organizations.
(b) A predominant portion of the petitioning group comprises a
distinct community and has existed as a community from historical times
until the present.
(1) This criterion may be demonstrated by some combination of the
following evidence and/or other evidence that the petitioner meets the
definition of community set forth in Sec. 83.1:
(i) Significant rates of marriage within the group, and/or, as may
be culturally required, patterned out-marriages with other Indian
populations.
(ii) Significant social relationships connecting individual members.
(iii) Significant rates of informal social interaction which exist
broadly among the members of a group.
(iv) A significant degree of shared or cooperative labor or other
economic activity among the membership.
(v) Evidence of strong patterns of discrimination or other social
distinctions by non-members.
(vi) Shared sacred or secular ritual activity encompassing most of
the group.
(vii) Cultural patterns shared among a significant portion of the
group that are different from those of the non-Indian populations with
whom it interacts. These patterns must function as more than a symbolic
identification of the group as Indian. They may include, but are not
limited to, language, kinship organization, or religious beliefs and
practices.
(viii) The persistence of a named, collective Indian identity
continuously over a period of more than 50 years, notwithstanding
changes in name.
(ix) A demonstration of historical political influence under the
criterion in Sec. 83.7(c) shall be evidence for demonstrating historical
community.
(2) A petitioner shall be considered to have provided sufficient
evidence of community at a given point in time if evidence is provided
to demonstrate any one of the following:
(i) More than 50 percent of the members reside in a geographical
area exclusively or almost exclusively composed of members of the group,
and the balance of the group maintains consistent interaction with some
members of the community;
(ii) At least 50 percent of the marriages in the group are between
members of the group;
(iii) At least 50 percent of the group members maintain distinct
cultural patterns such as, but not limited to, language, kinship
organization, or religious beliefs and practices;
(iv) There are distinct community social institutions encompassing
most of the members, such as kinship organizations, formal or informal
economic cooperation, or religious organizations; or
(v) The group has met the criterion in Sec. 83.7(c) using evidence
described in Sec. 83.7(c)(2).
(c) The petitioner has maintained political influence or authority
over its members as an autonomous entity from historical times until the
present.
(1) This criterion may be demonstrated by some combination of the
evidence listed below and/or by other evidence that the petitioner meets
the definition of political influence or authority in Sec. 83.1.
(i) The group is able to mobilize significant numbers of members and
significant resources from its members for group purposes.
(ii) Most of the membership considers issues acted upon or actions
taken by group leaders or governing bodies to be of importance.
(iii) There is widespread knowledge, communication and involvement
in political processes by most of the group's members.
(iv) The group meets the criterion in Sec. 83.7(b) at more than a
minimal level.
[[Page 263]]
(v) There are internal conflicts which show controversy over valued
group goals, properties, policies, processes and/or decisions.
(2) A petitioning group shall be considered to have provided
sufficient evidence to demonstrate the exercise of political influence
or authority at a given point in time by demonstrating that group
leaders and/or other mechanisms exist or existed which:
(i) Allocate group resources such as land, residence rights and the
like on a consistent basis.
(ii) Settle disputes between members or subgroups by mediation or
other means on a regular basis;
(iii) Exert strong influence on the behavior of individual members,
such as the establishment or maintenance of norms and the enforcement of
sanctions to direct or control behavior;
(iv) Organize or influence economic subsistence activities among the
members, including shared or cooperative labor.
(3) A group that has met the requirements in paragraph 83.7(b)(2) at
a given point in time shall be considered to have provided sufficient
evidence to meet this criterion at that point in time.
(d) A copy of the group's present governing document including its
membership criteria. In the absence of a written document, the
petitioner must provide a statement describing in full its membership
criteria and current governing procedures.
(e) The petitioner's membership consists of individuals who descend
from a historical Indian tribe or from historical Indian tribes which
combined and functioned as a single autonomous political entity.
(1) Evidence acceptable to the Secretary which can be used for this
purpose includes but is not limited to:
(i) Rolls prepared by the Secretary on a descendancy basis for
purposes of distributing claims money, providing allotments, or other
purposes;
(ii) State, Federal, or other official records or evidence
identifying present members or ancestors of present members as being
descendants of a historical tribe or tribes that combined and functioned
as a single autonomous political entity.
(iii) Church, school, and other similar enrollment records
identifying present members or ancestors of present members as being
descendants of a historical tribe or tribes that combined and functioned
as a single autonomous political entity.
(iv) Affidavits of recognition by tribal elders, leaders, or the
tribal governing body identifying present members or ancestors of
present members as being descendants of a historical tribe or tribes
that combined and functioned as a single autonomous political entity.
(v) Other records or evidence identifying present members or
ancestors of present members as being descendants of a historical tribe
or tribes that combined and functioned as a single autonomous political
entity.
(2) The petitioner must provide an official membership list,
separately certified by the group's governing body, of all known current
members of the group. This list must include each member's full name
(including maiden name), date of birth, and current residential address.
The petitioner must also provide a copy of each available former list of
members based on the group's own defined criteria, as well as a
statement describing the circumstances surrounding the preparation of
the current list and, insofar as possible, the circumstances surrounding
the preparation of former lists.
(f) The membership of the petitioning group is composed principally
of persons who are not members of any acknowledged North American Indian
tribe. However, under certain conditions a petitioning group may be
acknowledged even if its membership is composed principally of persons
whose names have appeared on rolls of, or who have been otherwise
associated with, an acknowledged Indian tribe. The conditions are that
the group must establish that it has functioned throughout history until
the present as a separate and autonomous Indian tribal entity, that its
members do not maintain a bilateral political relationship with the
acknowledged tribe, and that its members have provided written
confirmation of their membership in the petitioning group.
[[Page 264]]
(g) Neither the petitioner nor its members are the subject of
congressional legislation that has expressly terminated or forbidden the
Federal relationship.
Sec. 83.8 Previous Federal acknowledgment.
(a) Unambiguous previous Federal acknowledgment is acceptable
evidence of the tribal character of a petitioner to the date of the last
such previous acknowledgment. If a petitioner provides substantial
evidence of unambiguous Federal acknowledgment, the petitioner will then
only be required to demonstrate that it meets the requirements of
Sec. 83.7 to the extent required by this section.
(b) A determination of the adequacy of the evidence of previous
Federal action acknowledging tribal status shall be made during the
technical assistance review of the documented petition conducted
pursuant to Sec. 83.10(b). If a petition is awaiting active
consideration at the time of adoption of these regulations, this review
will be conducted while the petition is under active consideration
unless the petitioner requests in writing that this review be made in
advance.
(c) Evidence to demonstrate previous Federal acknowledgment
includes, but is not limited to:
(1) Evidence that the group has had treaty relations with the United
States.
(2) Evidence that the group has been denominated a tribe by act of
Congress or Executive Order.
(3) Evidence that the group has been treated by the Federal
Government as having collective rights in tribal lands or funds.
(d) To be acknowledged, a petitioner that can demonstrate previous
Federal acknowledgment must show that:
(1) The group meets the requirements of the criterion in
Sec. 83.7(a), except that such identification shall be demonstrated
since the point of last Federal acknowledgment. The group must further
have been identified by such sources as the same tribal entity that was
previously acknowledged or as a portion that has evolved from that
entity.
(2) The group meets the requirements of the criterion in
Sec. 83.7(b) to demonstrate that it comprises a distinct community at
present. However, it need not provide evidence to demonstrate existence
as a community historically.
(3) The group meets the requirements of the criterion in
Sec. 83.7(c) to demonstrate that political influence or authority is
exercised within the group at present. Sufficient evidence to meet the
criterion in Sec. 83.7(c) from the point of last Federal acknowledgment
to the present may be provided by demonstration of substantially
continuous historical identification, by authoritative, knowledgeable
external sources, of leaders and/or a governing body who exercise
political influence or authority, together with demonstration of one
form of evidence listed in Sec. 83.7(c).
(4) The group meets the requirements of the criteria in paragraphs
83.7 (d) through (g).
(5) If a petitioner which has demonstrated previous Federal
acknowledgment cannot meet the requirements in paragraphs (d) (1) and
(3), the petitioner may demonstrate alternatively that it meets the
requirements of the criteria in Sec. 83.7 (a) through (c) from last
Federal acknowledgment until the present.
Sec. 83.9 Notice of receipt of a petition.
(a) Within 30 days after receiving a letter of intent, or a
documented petition if a letter of intent has not previously been
received and noticed, the Assistant Secretary shall acknowledge such
receipt in writing and shall have published within 60 days in the
Federal Register a notice of such receipt. This notice must include the
name, location, and mailing address of the petitioner and such other
information as will identify the entity submitting the letter of intent
or documented petition and the date it was received. This notice shall
also serve to announce the opportunity for interested parties and
informed parties to submit factual or legal arguments in support of or
in opposition to the petitioner's request for acknowledgment and/or to
request to be kept informed of all general actions affecting the
petition. The notice shall also indicate where a copy of the letter
[[Page 265]]
of intent and the documented petition may be examined.
(b) The Assistant Secretary shall notify, in writing, the governor
and attorney general of the state in which a petitioner is located. The
Assistant Secretary shall also notify any recognized tribe and any other
petitioner which appears to have a historical or present relationship
with the petitioner or which may otherwise be considered to have a
potential interest in the acknowledgment determination.
(c) The Assistant Secretary shall also publish the notice of receipt
of the letter of intent, or documented petition if a letter of intent
has not been previously received, in a major newspaper or newspapers of
general circulation in the town or city nearest to the petitioner. The
notice will include all of the information in paragraph (a) of this
section.
Sec. 83.10 Processing of the documented petition.
(a) Upon receipt of a documented petition, the Assistant Secretary
shall cause a review to be conducted to determine whether the petitioner
is entitled to be acknowledged as an Indian tribe. The review shall
include consideration of the documented petition and the factual
statements contained therein. The Assistant Secretary may also initiate
other research for any purpose relative to analyzing the documented
petition and obtaining additional information about the petitioner's
status. The Assistant Secretary may likewise consider any evidence which
may be submitted by interested parties or informed parties.
(b) Prior to active consideration of the documented petition, the
Assistant Secretary shall conduct a preliminary review of the petition
for purposes of technical assistance.
(1) This technical assistance review does not constitute the
Assistant Secretary's review to determine if the petitioner is entitled
to be acknowledged as an Indian tribe. It is a preliminary review for
the purpose of providing the petitioner an opportunity to supplement or
revise the documented petition prior to active consideration. Insofar as
possible, technical assistance reviews under this paragraph will be
conducted in the order of receipt of documented petitions. However,
technical assistance reviews will not have priority over active
consideration of documented petitions.
(2) After the technical assistance review, the Assistant Secretary
shall notify the petitioner by letter of any obvious deficiencies or
significant omissions apparent in the documented petition and provide
the petitioner with an opportunity to withdraw the documented petition
for further work or to submit additional information and/or
clarification.
(3) If a petitioner's documented petition claims previous Federal
acknowledgment and/or includes evidence of previous Federal
acknowledgment, the technical assistance review will also include a
review to determine whether that evidence is sufficient to meet the
requirements of previous Federal acknowledgment as defined in Sec. 83.1.
(c) Petitioners have the option of responding in part or in full to
the technical assistance review letter or of requesting, in writing,
that the Assistant Secretary proceed with the active consideration of
the documented petition using the materials already submitted.
(1) If the petitioner requests that the materials submitted in
response to the technical assistance review letter be again reviewed for
adequacy, the Assistant Secretary will provide the additional review.
However, this additional review will not be automatic and will be
conducted only at the request of the petitioner.
(2) If the assertion of previous Federal acknowledgment under
Sec. 83.8 cannot be substantiated during the technical assistance
review, the petitioner must respond by providing additional evidence. A
petitioner claiming previous Federal acknowledgment who fails to respond
to a technical assistance review letter under this paragraph, or whose
response fails to establish the claim, shall have its documented
petition considered on the same basis as documented petitions submitted
by groups not claiming previous Federal acknowledgment. Petitioners that
fail to demonstrate previous Federal acknowledgment after a
[[Page 266]]
review of materials submitted in response to the technical assistance
review shall be so notified. Such petitioners may submit additional
materials concerning previous acknowledgment during the course of active
consideration.
(d) The order of consideration of documented petitions shall be
determined by the date of the Bureau's notification to the petitioner
that it considers that the documented petition is ready to be placed on
active consideration. The Assistant Secretary shall establish and
maintain a numbered register of documented petitions which have been
determined ready for active consideration. The Assistant Secretary shall
also maintain a numbered register of letters of intent or incomplete
petitions based on the original date of filing with the Bureau. In the
event that two or more documented petitions are determined ready for
active consideration on the same date, the register of letters of intent
or incomplete petitions shall determine the order of consideration by
the Assistant Secretary.
(e) Prior to active consideration, the Assistant Secretary shall
investigate any petitioner whose documented petition and response to the
technical assistance review letter indicates that there is little or no
evidence that establishes that the group can meet the mandatory criteria
in paragraph (e), (f) or (g) of Sec. 83.7.
(1) If this review finds that the evidence clearly establishes that
the group does not meet the mandatory criteria in paragraph (e), (f) or
(g) of Sec. 83.7, a full consideration of the documented petition under
all seven of the mandatory criteria will not be undertaken pursuant to
paragraph (a) of this section. Rather, the Assistant Secretary shall
instead decline to acknowledge that the petitioner is an Indian tribe
and publish a proposed finding to that effect in the Federal Register.
The periods for receipt of comments on the proposed finding from
petitioners, interested parties and informed parties, for consideration
of comments received, and for publication of a final determination
regarding the petitioner's status shall follow the timetables
established in paragraphs (h) through (l) of this section.
(2) If the review cannot clearly demonstrate that the group does not
meet one or more of the mandatory criteria in paragraph (e), (f) or (g)
of Sec. 83.7, a full evaluation of the documented petition under all
seven of the mandatory criteria shall be undertaken during active
consideration of the documented petition pursuant to paragraph (g) of
this section.
(f) The petitioner and interested parties shall be notified when the
documented petition comes under active consideration.
(1) They shall also be provided with the name, office address, and
telephone number of the staff member with primary administrative
responsibility for the petition; the names of the researchers conducting
the evaluation of the petition; and the name of their supervisor.
(2) The petitioner shall be notified of any substantive comment on
its petition received prior to the beginning of active consideration or
during the preparation of the proposed finding, and shall be provided an
opportunity to respond to such comments.
(g) Once active consideration of the documented petition has begun,
the Assistant Secretary shall continue the review and publish proposed
findings and a final determination in the Federal Register pursuant to
these regulations, notwithstanding any requests by the petitioner or
interested parties to cease consideration. The Assistant Secretary has
the discretion, however, to suspend active consideration of a documented
petition, either conditionally or for a stated period of time, upon a
showing to the petitioner that there are technical problems with the
documented petition or administrative problems that temporarily preclude
continuing active consideration. The Assistant Secretary shall also
consider requests by petitioners for suspension of consideration and has
the discretion to grant such requests for good cause. Upon resolution of
the technical or administrative problems that are the basis for the
suspension, the documented petition will have priority on the numbered
register of documented
[[Page 267]]
petitions insofar as possible. The Assistant Secretary shall notify the
petitioner and interested parties when active consideration of the
documented petition is resumed. The timetables in succeeding paragraphs
shall begin anew upon the resumption of active consideration.
(h) Within one year after notifying the petitioner that active
consideration of the documented petition has begun, the Assistant
Secretary shall publish proposed findings in the Federal Register. The
Assistant Secretary has the discretion to extend that period up to an
additional 180 days. The petitioner and interested parties shall be
notified of the time extension. In addition to the proposed findings,
the Assistant Secretary shall prepare a report summarizing the evidence,
reasoning, and analyses that are the basis for the proposed decision.
Copies of the report shall be provided to the petitioner, interested
parties, and informed parties and made available to others upon written
request.
(i) Upon publication of the proposed findings, the petitioner or any
individual or organization wishing to challenge or support the proposed
findings shall have 180 days to submit arguments and evidence to the
Assistant Secretary to rebut or support the proposed finding. The period
for comment on a proposed finding may be extended for up to an
additional 180 days at the Assistant Secretary's discretion upon a
finding of good cause. The petitioner and interested parties shall be
notified of the time extension. Interested and informed parties who
submit arguments and evidence to the Assistant Secretary must provide
copies of their submissions to the petitioner.
(j)(1) During the response period, the Assistant Secretary shall
provide technical advice concerning the factual basis for the proposed
finding, the reasoning used in preparing it, and suggestions regarding
the preparation of materials in response to the proposed finding. The
Assistant Secretary shall make available to the petitioner in a timely
fashion any records used for the proposed finding not already held by
the petitioner, to the extent allowable by Federal law.
(2) In addition, the Assistant Secretary shall, if requested by the
petitioner or any interested party, hold a formal meeting for the
purpose of inquiring into the reasoning, analyses, and factual bases for
the proposed finding. The proceedings of this meeting shall be on the
record. The meeting record shall be available to any participating party
and become part of the record considered by the Assistant Secretary in
reaching a final determination.
(k) The petitioner shall have a minimum of 60 days to respond to any
submissions by interested and informed parties during the response
period. This may be extended at the Assistant Secretary's discretion if
warranted by the extent and nature of the comments. The petitioner and
interested parties shall be notified by letter of any extension. No
further comments from interested or informed parties will be accepted
after the end of the regular response period.
(l) At the end of the period for comment on a proposed finding, the
Assistant Secretary shall consult with the petitioner and interested
parties to determine an equitable timeframe for consideration of written
arguments and evidence submitted during the response period. The
petitioner and interested parties shall be notified of the date such
consideration begins.
(1) Unsolicited comments submitted after the close of the response
period established in Sec. 83.10(i) and Sec. 83.10(k), will not be
considered in preparation of a final determination. The Assistant
Secretary has the discretion during the preparation of the proposed
finding, however, to request additional explanations and information
from the petitioner or from commenting parties to support or supplement
their comments on a proposed finding. The Assistant Secretary may also
conduct such additional research as is necessary to evaluate and
supplement the record. In either case, the additional materials will
become part of the petition record.
(2) After consideration of the written arguments and evidence
rebutting or supporting the proposed finding and the petitioner's
response to the comments of interested parties and informed parties, the
Assistant Secretary
[[Page 268]]
shall make a final determination regarding the petitioner's status. A
summary of this determination shall be published in the Federal Register
within 60 days from the date on which the consideration of the written
arguments and evidence rebutting or supporting the proposed finding
begins.
(3) The Assistant Secretary has the discretion to extend the period
for the preparation of a final determination if warranted by the extent
and nature of evidence and arguments received during the response
period. The petitioner and interested parties shall be notified of the
time extension.
(4) The determination will become effective 90 days from publication
unless a request for reconsideration is filed pursuant to Sec. 83.11.
(m) The Assistant Secretary shall acknowledge the existence of the
petitioner as an Indian tribe when it is determined that the group
satisfies all of the criteria in Sec. 83.7. The Assistant Secretary
shall decline to acknowledge that a petitioner is an Indian tribe if it
fails to satisfy any one of the criteria in Sec. 83.7.
(n) If the Assistant Secretary declines to acknowledge that a
petitioner is an Indian tribe, the petitioner shall be informed of
alternatives, if any, to acknowledgment under these procedures. These
alternatives may include other means through which the petitioning group
may achieve the status of an acknowledged Indian tribe or through which
any of its members may become eligible for services and benefits from
the Department as Indians, or become members of an acknowledged Indian
tribe.
(o) The determination to decline to acknowledge that the petitioner
is an Indian tribe shall be final for the Department.
(p) A petitioner that has petitioned under this part or under the
acknowledgment regulations previously effective and that has been denied
Federal acknowledgment may not re-petition under this part. The term
``petitioner'' here includes previously denied petitioners that have
reorganized or been renamed or that are wholly or primarily portions of
groups that have previously been denied under these or previous
acknowledgment regulations.
Sec. 83.11 Independent review, reconsideration and final action.
(a)(1) Upon publication of the Assistant Secretary's determination
in the Federal Register, the petitioner or any interested party may file
a request for reconsideration with the Interior Board of Indian Appeals.
Petitioners which choose under Sec. 83.3(g) to be considered under
previously effective acknowledgment regulations may nonetheless request
reconsideration under this section.
(2) A petitioner's or interested party's request for reconsideration
must be received by the Board no later than 90 days after the date of
publication of the Assistant Secretary's determination in the Federal
Register. If no request for reconsideration has been received, the
Assistant Secretary's decision shall be final for the Department 90 days
after publication of the final determination in the Federal Register.
(b) The petitioner's or interested party's request for
reconsideration shall contain a detailed statement of the grounds for
the request, and shall include any new evidence to be considered.
(1) The detailed statement of grounds for reconsideration filed by a
petitioner or interested parties shall be considered the appellant's
opening brief provided for in 43 CFR 4.311(a).
(2) The party or parties requesting the reconsideration shall mail
copies of the request to the petitioner and all other interested
parties.
(c)(1) The Board shall dismiss a request for reconsideration that is
not filed by the deadline specified in paragraph (a) of this section.
(2) If a petitioner's or interested party's request for
reconsideration is filed on time, the Board shall determine, within 120
days after publication of the Assistant Secretary's final determination
in the Federal Register, whether the request alleges any of the grounds
in paragraph (d) of this section and shall notify the petitioner and
interested parties of this determination.
(d) The Board shall have the authority to review all requests for
reconsideration that are timely and that allege any of the following:
[[Page 269]]
(1) That there is new evidence that could affect the determination;
or
(2) That a substantial portion of the evidence relied upon in the
Assistant Secretary's determination was unreliable or was of little
probative value; or
(3) That petitioner's or the Bureau's research appears inadequate or
incomplete in some material respect; or
(4) That there are reasonable alternative interpretations, not
previously considered, of the evidence used for the final determination,
that would substantially affect the determination that the petitioner
meets or does not meet one or more of the criteria in Sec. 83.7 (a)
through (g).
(e) The Board shall have administrative authority to review
determinations of the Assistant Secretary made pursuant to Sec. 83.10(m)
to the extent authorized by this section.
(1) The regulations at 43 CFR 4.310--4.318 and 4.331--4.340 shall
apply to proceedings before the Board except when they are inconsistent
with these regulations.
(2) The Board may establish such procedures as it deems appropriate
to provide a full and fair evaluation of a request for reconsideration
under this section to the extent they are not inconsistent with these
regulations.
(3) The Board, at its discretion, may request experts not associated
with the Bureau, the petitioner, or interested parties to provide
comments, recommendations, or technical advice concerning the
determination, the administrative record, or materials filed by the
petitioner or interested parties. The Board may also request, at its
discretion, comments or technical assistance from the Assistant
Secretary concerning the final determination or, pursuant to paragraph
(e)(8) of this section, the record used for the determination.
(4) Pursuant to 43 CFR 4.337(a), the Board may require, at its
discretion, a hearing conducted by an administrative law judge of the
Office of Hearings and Appeals if the Board determines that further
inquiry is necessary to resolve a genuine issue of material fact or to
otherwise augment the record before it concerning the grounds for
reconsideration.
(5) The detailed statement of grounds for reconsideration filed by a
petitioner or interested parties pursuant to paragraph (b)(1) of this
section shall be considered the appellant's opening brief provided for
in 43 CFR 4.311(a).
(6) An appellant's reply to an opposing party's answer brief,
provided for in 43 CFR 4.311(b), shall not apply to proceedings under
this section, except that a petitioner shall have the opportunity to
reply to an answer brief filed by any party that opposes a petitioner's
request for reconsideration.
(7) The opportunity for reconsideration of a Board decision provided
for in 43 CFR 4.315 shall not apply to proceedings under this section.
(8) For purposes of review by the Board, the administrative record
shall consist of all appropriate documents in the Branch of
Acknowledgment and Research relevant to the determination involved in
the request for reconsideration. The Assistant Secretary shall designate
and transmit to the Board copies of critical documents central to the
portions of the determination under a request for reconsideration. The
Branch of Acknowledgment and Research shall retain custody of the
remainder of the administrative record, to which the Board shall have
unrestricted access.
(9) The Board shall affirm the Assistant Secretary's determination
if the Board finds that the petitioner or interested party has failed to
establish, by a preponderance of the evidence, at least one of the
grounds under paragraphs (d)(1)--(d)(4) of this section.
(10) The Board shall vacate the Assistant Secretary's determination
and remand it to the Assistant Secretary for further work and
reconsideration if the Board finds that the petitioner or an interested
party has established, by a preponderance of the evidence, one or more
of the grounds under paragraphs (d)(1)--(d)(4) of this section.
(f)(1) The Board, in addition to making its determination to affirm
or remand, shall describe in its decision any grounds for
reconsideration other than those in paragraphs (d)(1)--(d)(4) of this
section alleged by a petitioner's or interested party's request for
reconsideration.
[[Page 270]]
(2) If the Board affirms the Assistant Secretary's decision under
Sec. 83.11(e)(9) but finds that the petitioner or interested parties
have alleged other grounds for reconsideration, the Board shall send the
requests for reconsideration to the Secretary. The Secretary shall have
the discretion to request that the Assistant Secretary reconsider the
final determination on those grounds.
(3) The Secretary, in reviewing the Assistant Secretary's decision,
may review any information available, whether formally part of the
record or not. Where the Secretary's review relies upon information that
is not formally part of the record, the Secretary shall insert the
information relied upon into the record, together with an identification
of its source and nature.
(4) Where the Board has sent the Secretary a request for
reconsideration under paragraph (f)(2), the petitioner and interested
parties shall have 30 days from receiving notice of the Board's decision
to submit comments to the Secretary. Where materials are submitted to
the Secretary opposing a petitioner's request for reconsideration, the
interested party shall provide copies to the petitioner and the
petitioner shall have 15 days from their receipt of the information to
file a response with the Secretary.
(5) The Secretary shall make a determination whether to request a
reconsideration of the Assistant Secretary's determination within 60
days of receipt of all comments and shall notify all parties of the
decision.
(g)(1) The Assistant Secretary shall issue a reconsidered
determination within 120 days of receipt of the Board's decision to
remand a determination or the Secretary's request for reconsideration.
(2) The Assistant Secretary's reconsideration shall address all
grounds determined to be valid grounds for reconsideration in a remand
by the Board, other grounds described by the Board pursuant to paragraph
(f)(1), and all grounds specified in any Secretarial request. The
Assistant Secretary's reconsideration may address any issues and
evidence consistent with the Board's decision or the Secretary's
request.
(h)(1) If the Board finds that no petitioner's or interested party's
request for reconsideration is timely, the Assistant Secretary's
determination shall become effective and final for the Department 120
days from the publication of the final determination in the Federal
Register.
(2) If the Secretary declines to request reconsideration under
paragraph (f)(2) of this section, the Assistant Secretary's decision
shall become effective and final for the Department as of the date of
notification to all parties of the Secretary's decision.
(3) If a determination is reconsidered by the Assistant Secretary
because of action by the Board remanding a decision or because the
Secretary has requested reconsideration, the reconsidered determination
shall be final and effective upon publication of the notice of this
reconsidered determination in the Federal Register.
Sec. 83.12 Implementation of decisions.
(a) Upon final determination that the petitioner exists as an Indian
tribe, it shall be considered eligible for the services and benefits
from the Federal government that are available to other federally
recognized tribes. The newly acknowledged tribe shall be considered a
historic tribe and shall be entitled to the privileges and immunities
available to other federally recognized historic tribes by virtue of
their government-to-government relationship with the United States. It
shall also have the responsibilities and obligations of such tribes.
Newly acknowledged Indian tribes shall likewise be subject to the same
authority of Congress and the United States as are other federally
acknowledged tribes.
(b) Upon acknowledgment as an Indian tribe, the list of members
submitted as part of the petitioners documented petition shall be the
tribe's complete base roll for purposes of Federal funding and other
administrative purposes. For Bureau purposes, any additions made to the
roll, other than individuals who are descendants of those on the roll
and who meet the tribe's membership criteria, shall be limited to those
meeting the requirements of Sec. 83.7(e) and maintaining significant
social and political ties with the tribe
[[Page 271]]
(i.e., maintaining the same relationship with the tribe as those on the
list submitted with the group's documented petition).
(c) While the newly acknowledged tribe shall be considered eligible
for benefits and services available to federally recognized tribes
because of their status as Indian tribes, acknowledgment of tribal
existence shall not create immediate access to existing programs. The
tribe may participate in existing programs after it meets the specific
program requirements, if any, and upon appropriation of funds by
Congress. Requests for appropriations shall follow a determination of
the needs of the newly acknowledged tribe.
(d) Within six months after acknowledgment, the appropriate Area
Office shall consult with the newly acknowledged tribe and develop, in
cooperation with the tribe, a determination of needs and a recommended
budget. These shall be forwarded to the Assistant Secretary. The
recommended budget will then be considered along with other
recommendations by the Assistant Secretary in the usual budget request
process.
Sec. 83.13 Information collection.
(a) The collections of information contained in Sec. 83.7 have been
approved by the Office of Management and Budget under 44 U.S.C. 3501 et
seq. and assigned clearance number 1076-0104. The information will be
used to establish historical existence as a tribe, verify family
relationships and the group's claim that its members are Indian and
descend from a historical tribe or tribes which combined, that members
are not substantially enrolled in other Indian tribes, and that they
have not individually or as a group been terminated or otherwise
forbidden the Federal relationship. Response is required to obtain a
benefit in accordance with 25 U.S.C. 2.
(b) Public reporting burden for this information is estimated to
average 1,968 hours per petition, including the time for reviewing
instructions, searching existing data sources, gathering and maintaining
the data needed, and completing and reviewing the collection of
information. Send comments regarding this collection of information,
including suggestions for reducing the burden, to both the Information
Collection Clearance Officer, Bureau of Indian Affairs, Mail Stop 336-
SIB, 1849 C Street, NW., Washington, DC 20240; and to the Office of
Information and Regulatory Affairs, Office of Management and Budget,
Washington, DC 20503.
PART 84--ENCUMBRANCES OF TRIBAL LAND--CONTRACT APPROVALS--Table of Contents
Sec.
84.001 What is the purpose of this part?
84.002 What terms must I know?
84.003 What types of contracts and agreements require Secretarial
approval under this part?
84.004 Are there types of contracts and agreements that do not require
Secretarial approval under this part?
84.005 Will the Secretary approve contracts or agreements even where
such approval is not required under this part?
84.006 Under what circumstances will the Secretary disapprove a contract
or agreement that requires Secretarial approval under this
part?
84.007 What is the status of a contract or agreement that requires
Secretarial approval under this part but has not yet been
approved?
84.008 What is the effect of the Secretary's disapproval of a contract
or agreement that requires Secretarial approval under this
part?
Authority: 25 U.S.C. 81, Pub. L. 106-179.
Source: 66 FR 38923, July 26, 2001, unless otherwise noted.
Sec. 84.001 What is the purpose of this part?
The purpose of this part is to implement the provisions of the
Indian Tribal Economic Development and Contract Encouragement Act of
2000, Public Law 106-179, which amends section 2103 of the Revised
Statutes, found at 25 U.S.C. 81.
Sec. 84.002 What terms must I know?
The Act means the Indian Tribal Economic Development and Contract
Encouragement Act of 2000, Public Law 106-179, which amends section 2103
of the Revised Statutes, found at 25 U.S.C. 81.
Encumber means to attach a claim, lien, charge, right of entry or
liability
[[Page 272]]
to real property (referred to generally as encumbrances). Encumbrances
covered by this part may include leasehold mortgages, easements, and
other contracts or agreements that by their terms could give to a third
party exclusive or nearly exclusive proprietary control over tribal
land.
Indian tribe, as defined by the Act, means any Indian tribe, nation,
or other organized group or community, including any Alaska 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 special programs and services provided by the Secretary to
Indians because of their status as Indians.
Secretary means the Secretary of the Interior or his or her
designated representative.
Tribal lands means those lands held by the United States in trust
for an Indian tribe or those lands owned by an Indian tribe subject to
federal restrictions against alienation, as referred to Public Law 106-
179 as ``Indian lands.''
Sec. 84.003 What types of contracts and agreements require Secretarial approval under this part?
Unless otherwise provided in this part, contracts and agreements
entered into by an Indian tribe that encumber trial lands for a period
of seven or more years require Secretarial approval under this part.
Sec. 84.004 Are there types of contracts and agreements that do not require Secretarial approval under this part?
Yes, the following types of contracts or agreements do not require
Secretarial approval under this part:
(a) Contracts or agreements otherwise reviewed and approved by the
Secretary under this title or other federal law or regulation. See, for
example, 25 CFR parts 152 (patents in fee, certificates or competency);
162 (non-mineral leases, leasehold mortgages); 163 (timber contracts);
166 (grazing permits); 169 (rights-of-way); 200 (coal leases); 211
(mineral leases); 216 (surface mining permits and leases); and 225
(mineral development agreements);
(b) Leases of tribal land that are exempt from approval by the
Secretary under 25 U.S.C. 415 or 25 U.S.C. 477;
(c) Sublease and assignments of leases of tribal land that do not
require approval by the Secretary under part 162 of this title;
(d) Contracts or agreements that convey to tribal members any rights
for temporary use of tribal lands, assigned by Indian tribes in
accordance with tribal laws or custom;
(e) Contracts or agreements that do not convey exclusive or nearly
exclusive proprietary control over tribal lands for a period of seven
years or more;
(f) Contracts or agreements that are exempt from Secretarial
approval under the terms of a corporate charter authorized by 25 U.S.C.
477;
(g) Tribal attorney contracts, including those for the Five
Civilized Tribes that are subject to our approval under 25 U.S.C. 82a;
(h) Contracts or agreements entered into in connection with a
contract under the Indian Self-Determination Act, 25 U.S.C. 450f, or a
compact under the Tribal Self-Governance Act, 25 U.S.C. 458aa.
(i) Contracts or agreements that are subject to approval by the
National Indian Gaming Commission under the Indian Gaming Regulatory
Act, 25 U.S.C. 2701 et seq., and the Commission's regulations; or
(j) Contracts or agreements relating to the use of tribal lands for
hydropower projects where the tribal lands meet the definition of a
``reservation'' under the Federal Power Act (FPA), provided that:
(1) Federal Energy Regulatory Commission (FERC) has issued a license
or an exemption;
(2) FERC has made the finding under section 4(e) of the FPA (16
U.S.C. 797(e)) that the license or exemption will not interfere or be
inconsistent with the purpose for which such reservation was created or
acquired; and
(3) FERC license or exemption includes the Secretary's conditions
for protection and utilization of the reservation under section 4(e) and
payment of annual use charges to the tribe under section 10(e) of the
FPA (16 U.S.C. 803(e)).
[[Page 273]]
Sec. 84.005 Will the Secretary approve contracts or agreements even where such approval is not required under this part?
No, the Secretary will not approve contracts or agreements that do
not encumber tribal lands for a period of seven or more years. Within
thirty days after receipt of final, executed documents, the Secretary
will return such contracts and agreements with a statement explaining
why Secretarial approval is not required. The provisions of the Act will
not apply to those contracts or agreements the Secretary determines are
not covered by the Act.
Sec. 84.006 Under what circumstances will the Secretary disapprove a contract or agreement that requires Secretarial approval under this part?
(a) The Secretary will disapprove a contract or agreement that
requires Secretarial approval under this part if the Secretary
determines that such contract or agreement:
(1) Violates federal law; or
(2) Does not contain at least one of the following provisions that:
(i) Provides for remedies in the event the contract or agreement is
breached;
(ii) References a tribal code, ordinance or ruling of a court of
competent jurisdiction that discloses the right of the tribe to assert
sovereign immunity as a defense in an action brought against the tribe;
or
(iii) Includes an express waiver of the right of the tribe to assert
sovereign immunity as a defense in any action brought against the tribe,
including a waiver that limits the nature of relief that may be provided
or the jurisdiction of a court with respect to such an action.
(b) The Secretary will consult with the Indian tribe as soon as
practicable before disapproving a contract or agreement regarding the
elements of the contract or agreement that may lead to disapproval.
Sec. 84.007 What is the status of a contract or agreement that requires Secretarial approval under this part but has not yet been approved?
A contract or agreement that requires Secretarial approval under
this part is not valid until the Secretary approves it.
Sec. 84.008 What is the effect of the Secretary's disapproval of a contract or agreement that requires Secretarial approval under this part?
If the Secretary disapproves a contract or agreement that requires
Secretarial approval under this part, the contract or agreement is
invalid as a matter of law.
PART 87--USE OR DISTRIBUTION OF INDIAN JUDGMENT FUNDS--Table of Contents
Sec.
87.1 Definitions.
87.2 Purpose.
87.3 Time limits.
87.4 Conduct of hearings of record.
87.5 Submittal of proposed plan by Secretary.
87.6 Extension of period for submitting plans.
87.7 Submittal of proposed legislation by Secretary.
87.8 Enrollment aspects of plans.
87.9 Programing aspects of plans.
87.10 Per capita payment aspects of plans and protection of funds
accruing to minors, legal incompetents and deceased
beneficiaries.
87.11 Investment of judgment funds.
87.12 Insuring the proper performance of approved plans.
Authority: 5 U.S.C. 301; 87 Stat. 466, 467, 468.
Source: 39 FR 1835, Jan. 15, 1974, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
Sec. 87.1 Definitions.
As used in this part 87, terms shall have the meanings set forth in
this section.
(a) Act means the Act of October 19, 1973 (Pub. L. 93-134; 87 Stat.
466, 467, 468).
(b) Secretary means the Secretary of the Interior or his authorized
representative.
(c) Commissioner means the Commissioner of Indian Affairs or his
authorized representative.
(d) Area Director means the Area Director or his equivalent of any
one of the Area Offices of the Bureau of Indian Affairs or his
authorized representative.
[[Page 274]]
(e) Superintendent means the Superintendent or Officer in Charge of
any one of the Agency Offices or other local offices of the Bureau of
Indian Affairs or his authorized representative.
(f) Congressional Committees means the Committees on Interior and
Insular Affairs of the Senate and House of Representatives of the United
States.
(g) Indian tribe or group means any Indian tribe, nation, band,
pueblo, community or identifiable group of Indians, or Alaska Native
entity.
(h) Tribal governing body means, as recognized by the Secretary, the
governing body of a formally organized or recognized tribe or group; the
governing body of any informally organized tribe or group, the governing
body of a formally organized Alaska Native entity or recognized tribe in
Oklahoma, and for the purposes of the Act the recognized spokesmen or
representatives of any descendant group.
(i) Plan means the document submitted by the Secretary, together
with all pertinent records, for the use or distribution of judgment
funds, to the Congressional Committees.
(j) Enrollment means that aspect of a plan which pertains to making
or bringing current a roll of members of an organized, reservation-based
tribe with membership criteria approved or accepted by the Secretary, a
roll of members of an organized or recognized entity in Oklahoma, or
Alaska or elsewhere, or a roll prepared for the purpose of making per
capita payments for judgments awarded by the Indian Claims Commission or
United States Court of Claims; or which pertains to using an historical
roll or records of names, including tribal rolls closed and made final,
for research or other purposes.
(k) Program means that aspect of a plan which pertains to using part
or all of the judgment funds for tribal social and economic development
projects.
(l) Per capita payment means that aspect of a plan which pertains to
the individualization of the judgment funds in the form of shares to
tribal members or to individual descendants.
(m) Use or distribution means any utilization or disposition of the
judgment funds, including programing, per capita payments, or a
combination thereof.
(n) Individual beneficiary means a tribal member or any individual
descendant, found by the Secretary to be eligible to participate in a
plan, who was born on or prior to, and is living on, the approval date
of the plan.
(o) Approval date means the date that a plan is approved by the
Congress. Except for a plan disapproved by either House, the approval
date of a plan shall be the sixtieth (60) day after formal submittal of
a plan by the Secretary to the Congressional Committees, excluding days
on which either the House of Representatives or the Senate is not in
session because of an adjournment of more than three (3) calendar days
to a day certain. In the event a proposed plan is disapproved by either
House, or in the event the Secretary is unable to submit a plan and
therefore proposes legislation, the approval date shall be the date of
the enabling legislation for the disposition of the judgment funds.
(p) Minor is an individual beneficiary who is eligible to
participate in a per capita payment and who has not reached the age of
eighteen (18) years.
(q) Legal incompetent is an individual beneficiary eligible to
participate in a per capita payment and who has been declared to be
under a legal disability, other than being a minor, by a court of
competent jurisdiction, including tribal courts.
(r) Attorney fees and litigation expenses means all fees and
expenses incurred in litigating and processing tribal claims before the
Indian Claims Commission or the United States Court of Claims.
Sec. 87.2 Purpose.
The regulations in this part govern the preparation of proposed
plans for the use or distribution, pursuant to the Act, of all judgment
funds awarded from the date of the Act to Indian tribes and groups by
the Indian Claims Commission or the United States Court of Claims,
excepting any tribe or group whose trust relationship with the Federal
Government has been terminated and for which there exists legislation
authorizing the disposition of its judgment funds; and of all funds
deriving from judgments entered prior to the date of the Act for which
there has been no enabling legislation.
[[Page 275]]
Sec. 87.3 Time limits.
(a) The Secretary shall cause to begin as early as possible the
necessary research to determine the identity of the ultimate or present
day beneficiaries of judgments. Such research shall be done under the
direction of the Commissioner of Indian Affairs. The affected tribes or
groups shall be encouraged to submit pertinent data. All pertinent data,
including cultural, political and historical material, and records,
including membership, census and other rolls shall be considered. If
more than one entity is determined to be eligible to participate in the
use or distribution of the funds, the results of the research shall
include a proposed formula for the division or apportionment of the
judgment funds among or between the involved entities.
(b) The results of all research shall be provided to the governing
bodies of all affected tribes and groups. The Area Director shall assist
the affected tribe or group in arranging for preliminary sessions or
meetings of the tribal governing body, or public meetings. The Area
Director shall make a presentation of the results of the research and
shall arrange for expertise of the Bureau of Indian Affairs to be
available at these meetings to assist the tribe or group in developing a
use or distribution proposal, bearing in mind that under the Act not
less than twenty (20) per centum of the judgment funds, including
investment income thereon, is to be used for tribal programs unless the
Secretary determines that the particular circumstances of the affected
Indian tribe clearly warrant otherwise.
Sec. 87.4 Conduct of hearings of record.
(a) As soon as appropriate after the tribal meetings have been held
and the Commissioner has reviewed the tribal proposal(s), the Area
Director, or such other official of the Department of the Interior as he
shall designate to act for him, shall hold a hearing of record to
receive testimony on the tribal proposal(s).
(b) The hearing shall be held after appropriate public notice
beginning at least twenty (20) days prior to the date of such hearing,
and after consultation with the governing body of the tribe or group
regarding the date and location of the hearing, to obtain the testimony
of members of the governing body and other representatives, spokesmen or
members of the tribe or group on the proposal(s).
(c) All testimony at the hearing shall be transcribed and a
transcript thereof shall be furnished to the Commissioner and the tribal
governing body immediately subsequent to the hearing. Particular care
shall be taken to insure that minority views are given full opportunity
for expression either during the hearing or in the form of written
communications by the date of the hearing.
(d) Whenever two or more tribes or groups are involved in the use or
distribution of the judgment funds, including situations in which two or
more Area Offices are concerned, every effort shall be made by the Area
Director or Directors to arrange for a single hearing to be conducted at
a time and location as convenient to the involved tribes and groups as
possible. Should the tribes and groups not reach agreement on such time
or place, or on the number of entities to be represented at the hearing,
the Commissioner, after considering the views of the affected tribes and
groups, shall within twenty (20) days of receipt of such advice by the
Area Director, designate a location and date for such hearing and invite
the participation of all entities he considers to be involved and the
Commissioner's decision shall be final.
Sec. 87.5 Submittal of proposed plan by Secretary.
Subsequent to the hearing of record, the Commissioner shall prepare
all pertinent materials for the review of the Secretary. Pertinent
materials shall include:
(a) The tribal use or distribution proposal or any alternate
proposals;
(b) A copy of the transcript of the hearing of record;
(c) A statement on the hearing of record and other evidence
reflecting the extent to which such proposal(s) meets the desires of the
affected tribe or group, including minorities views;
(d) Copies of all pertinent resolutions and other communications or
documents received from the affected tribe or group, including
minorities;
[[Page 276]]
(e) A copy of the tribal constitution and bylaws, or other
organizational document, if any; a copy of the tribal enrollment
ordinance, if any; and a statement as to the availability or status of
the membership roll of the affected tribe or group;
(f) A statement reflecting the nature and results of the investment
of the judgment funds as of thirty (30) days of the submittal of the
proposed plan, including a statement concerning attorney fees and
litigation expenses;
(g) A statement justifying any compromise proposal developed by the
Commissioner in the event of the absence of agreement among any and all
entities on the division or apportionment of the funds, should two or
more entities be involved;
(h) And a statement regarding the feasibility of the proposed plan,
including a timetable prepared in cooperation with the tribal governing
body, for the implementation of programing and roll preparation.
Within one hundred and eighty (180) days of the appropriation of the
judgment funds the Secretary shall submit a proposed plan, together with
the pertinent materials described above, simultaneously to each of the
Chairmen of the Congressional Committees, at the same time sending
copies of the proposed plan and materials to the governing body of the
affected tribe or group. The one hundred and eighty (180) day period
shall begin on the date of the Act with respect to all judgments for
which funds have been appropriated and for which enabling legislation
has not been enacted.
Sec. 87.6 Extension of period for submitting plans.
An extension of the one hundred and eighty (180) day period, not to
exceed ninety (90) days, may be requested by the Secretary or by the
governing body of any affected tribe or group submitting such request to
both Congressional Committees through the Secretary, and any such
request shall be subject to the approval of both Congressional
Committees.
Sec. 87.7 Submittal of proposed legislation by Secretary.
(a) Within thirty (30) calendar days after the date of a resolution
by either House disapproving a plan, the Secretary shall simultaneously
submit proposed legislation authorizing the use or distribution of the
funds, together with a report thereon, to the Chairmen of both
Congressional Committees, at the same time sending copies of the
proposed legislation to the governing body of the affected tribe or
group. Such proposed legislation shall be developed on the basis of
further consultation with the affected tribe or group.
(b) In any instance in which the Secretary determines that
circumstances are not conducive to the preparation and submission of a
plan, he shall, after appropriate consultation with the affected tribe
or group, submit proposed legislation within the 180-day period to both
Congressional Committee simultaneously.
Sec. 87.8 Enrollment aspects of plans.
An approved plan that includes provisions for enrollment requiring
formal adoption of enrollment rules and regulations shall be implemented
through the publication of such rules and regulations in the Federal
Register. Persons not members of organized or recognized tribes and who
are not citizens of the United States shall not, unless otherwise
provided by Congress, be eligible to participate in the use or
distribution of judgment funds, excepting heirs or legatees of deceased
individual beneficiaries.
Sec. 87.9 Programing aspects of plans.
In assessing any tribal programing proposal the Secretary shall
consider all pertinent factors, including the following: the percentage
of tribal members residing on or near the subject reservation, including
former reservation areas in Oklahoma, or Alaska Native villages; the
formal educational level and the general level of social and economic
adjustment of such reservation residents; the nature of recent
programing affecting the subject tribe or group and particularly the
reservation
[[Page 277]]
residents; the needs and aspirations of any local Indian communities or
districts within the reservation and the nature of organization of such
local entities; the feasibility of the participation of tribal members
not in residence on the reservation; the availability of funds for
programing purposes derived from sources other than the subject
judgment; and all other pertinent social and economic data developed to
support any proposed program.
Sec. 87.10 Per capita payment aspects of plans and protection of funds accruing to minors, legal incompetents and deceased beneficiaries.
(a) The per capita shares of living competent adults shall be paid
directly to them. The shares of minors, legal incompetents and deceased
individual beneficiaries, enhanced by investment earnings, shall be held
in individual Indian money (IIM) accounts unless otherwise provided as
set out in this section. While held in IIM accounts, said shares shall
be invested pursuant to 25 U.S.C. 162a and shall be the property of the
minors or legal incompetents or the estates of the deceased individual
beneficiaries to whom the per capita payments were made.
(b)(1) Unless otherwise provided in paragraph (b)(2) of this
section, minors' per capita shares, until the minors attain the age of
18 years, shall be retained in individually segregated IIM accounts and
handled as provided in Sec. 115.4 of this chapter. Should it be
determined that the funds are to be invested pursuant to a trust, minors
who will have reached the age of 18 years within six months after the
establishment of the trust shall have their funds retained at interest
in IIM accounts and paid to them upon attaining their majority.
(2) A private trust for the minors' per capita shares may be
established subject to the approval of the tribal governing body and the
Secretary on the following conditions:
(i) The tribal governing body specifically requests the
establishment of such trust, and the trust provides for segregated
amounts to each individual minor, based on his per capita share, and
(ii) The trust agreement specifically provides that the investment
policy to be followed is that of preserving the trust corpus and of
obtaining the highest interest rates current money markets can safely
provide. The trust agreement must further provide that maturity dates of
investments cannot exceed the period of the trust and that only the
following types of investment shall be made: United States Treasury
obligations; Federal agency obligations; repurchase/resell agreements;
United States Treasury bills; Bankers' acceptance, provided the assets
of the issuing bank exceed $1 billion or the issuing bank pledges full
collateral; Certificates of deposit, provided the assets of the issuing
bank exceed $1 billion or the issuing bank pledges full collateral;
Commercial paper, provided it is rated prime-2 by Moody or A-2 by
Standard and Poor or is obligation of a company with outstanding
unsecured debt rated Aa by Standard and Poor.
(c) The per capita shares of legal incompetents shall be held in IIM
accounts and administered pursuant to the provisions of Sec. 115.5 of
this chapter.
(d) The shares of deceased individual beneficiaries, plus all
interest and investment income accruing thereto, shall be paid to their
heirs and legatees upon their determination as provided in 43 CFR part
4, subpart D.
(e) All per capita shares, including all interest and investment
income accruing thereto, while they are held in trust under the
provisions of this section, shall be exempt from Federal and State
income taxes and shall not be considered as income or resources when
determining the extent of eligibility for assistance under the Social
Security Act, as amended.
(f) All per capita shares or portions thereof, including all
interest and investment income accruing thereto, which are not paid out
but which remain unclaimed with the Federal Government shall be
maintained separately and be enhanced by investment, and shall, unless
otherwise provided in an effective plan or in enabling legislation, be
subject to the provisions of the Act of September 22, 1961, 75 Stat.
584. No per capita share or portion thereof
[[Page 278]]
shall be transferred to the U.S. Treasury as ``Monies Belonging to
Individuals Whose Whereabouts are Unknown.''
[41 FR 48735, Nov. 5, 1976. Redesignated at 47 FR 13327, Mar. 30, 1982]
Sec. 87.11 Investment of judgment funds.
As soon as possible after the appropriation of judgment funds and
pending approval of a plan or the enactment of legislation authorizing
the use or distribution of the funds, the Commissioner shall invest such
funds pursuant to 25 U.S.C. 162a. Investments of judgment funds and of
investment income therefrom will continue to be made by the Commissioner
after the approval of a plan or enactment of use or distribution
legislation to the extent funds remain available for investment under
such plan or legislation, and provided that thereafter investments of
judgment funds made available for tribal use are not undertaken by the
tribe pursuant to authorizing law. Invested judgment funds, including
investment income therefrom, shall be withdrawn from investment only as
currently needed under approved plans or legislation authorizing the use
or distribution of such funds.
Sec. 87.12 Insuring the proper performance of approved plans.
A timetable prepared in cooperation with the tribal governing body
shall be included in the plan submitted by the Secretary for the
implementation of all programing and enrollment aspects of a plan. At
any time within one calendar year after the approval date of a plan, the
Area Director shall report to the Commissioner on the status of the
implementation of the plan, including all enrollment and programing
aspects, and thenceforth shall report to the Commissioner on an annual
basis regarding any remaining or unfulfilled aspects of a plan. The Area
Director shall include in his first and all subsequent annual reports a
statement regarding the maintenance of the timetable, a full accounting
of any per capita distribution, and the expenditure of all programing
funds. The Commissioner shall report the deficient performance of any
aspect of a plan to the Secretary, together with the corrective measures
he has taken or intends to take.
PART 88--RECOGNITION OF ATTORNEYS AND AGENTS TO REPRESENT CLAIMANTS--Table of Contents
Sec.
88.1 Employment of attorneys.
88.2 Employment by tribes or individual claimants.
Authority: 5 U.S.C. 301.
Cross References: For law and order regulations on Indian
reservations, see part 11 of this chapter. For probate procedure, see
part 15 of this chapter. For regulations governing the admission of
attorneys to practice before the Department of the Interior and the
offices and bureaus thereof, see 43 CFR part 1. For regulations
governing the execution of attorney contracts with Indians, see part 89
of this subchapter.
Sec. 88.1 Employment of attorneys.
(a) Indian tribes organized pursuant to the Indian Reorganization
Act of June 18, 1934 (48 Stat. 984; 25 U.S.C. 461-479), as amended, may
employ legal counsel. The choice of counsel and the fixing of fees are
subject under 25 U.S.C. 476 to the approval of the Secretary of the
Interior or his authorized representative.
(b) Attorneys may be employed by Indian tribes not organized under
the Act of June 18, 1934, under contracts subject to approval under 25
U.S.C. 81 and the Reorganization Plan No. 3 of 1950, 5 U.S.C. 481, note,
by the Secretary of the Interior or his authorized representative.
(c) Any action of the authorized representative of the Secretary of
the Interior which approves, disapproves or conditionally approves a
contract pursuant to paragraph (a) or (b) of this section shall be
final.
(d) Practice of such attorneys before the Bureau of Indian Affairs
and the Department of the Interior is subject to the requirements of 43
CFR 1.1 through 1.7.
[27 FR 11548, Nov. 24, 1962. Redesignated at 47 FR 13327, Mar. 30, 1982]
[[Page 279]]
Sec. 88.2 Employment by tribes or individual claimants.
All such attorneys or agents seeking approval of their employment by
Indian tribes or desiring to represent individual claimants before the
Indian Bureau shall be required to comply fully with the regulations of
the Department promulgated September 27, 1917, governing admission to
practice, and to take the oath of allegiance and to support the
Constitution of the United States, as required by section 3478 of the
United States Revised Statutes (31 U.S.C. 204).
[22 FR 10538, Dec. 24, 1957. Redesignated at 47 FR 13327, Mar. 30, 1982]
PART 89--ATTORNEY CONTRACTS WITH INDIAN TRIBES--Table of Contents
Tribes Organized Under The Indian Reorganization Act
Sec.
89.1-89.26 [Reserved]
Five Civilized Tribes
89.30 Contents and approval of contracts.
89.31 Negotiation of contract.
89.32 Notice from the principal officer.
89.33 Notice from attorney.
89.34 Tentative form of contract.
89.35 Execution in quintuplet.
Payment of Tribal Attorney Fees With Appropriated Funds
89.40 General policy.
89.41 Exceptions to policy.
89.42 Factors to be considered.
89.43 Procedures.
Authority: 5 U.S.C. 301; secs. 89.30 to 89.35 also issued under 25
U.S.C. 2, 9, and 82a; secs. 89.40 to 89.43 also issued under 25 U.S.C.
13, 450 et seq.
Cross Reference: For recognition of attorneys and agents to
represent claimants, see part 88 of this subchapter.
Tribes Organized Under The Indian Reorganization Act
Sec. 89.1-89.26 [Reserved]
Five Civilized Tribes
Sec. 89.30 Contents and approval of contracts.
All contracts for the services of legal counsel or technical
specialists negotiated and executed with the Choctaw, Chickasaw,
Cherokee, Creek, or Seminole Tribes or Nations, also known as the Five
Civilized Tribes, shall be in strict compliance with the requirements of
section 2103 of the Revised Statutes of the United States (25 U.S.C.
81).
[37 FR 10440, May 23, 1972. Redesignated at 47 FR 13327, Mar. 30, 1982]
Sec. 89.31 Negotiation of contract.
That person or governing entity recognized as having authority to
act for and in behalf of any one of the Five Civilized Tribes in matters
of importance may, when it is found there is a substantial need and
demand therefor, negotiate and contract for services of a tribal counsel
or counsels and technical specialist or specialists, subject to the
approval of the Secretary of the Interior or his authorized
representative.
[37 FR 10440, May 23, 1972. Redesignated at 47 FR 13327, Mar. 30, 1982]
Sec. 89.32 Notice from the principal officer.
Notice of intention to negotiate with attorneys or with technical
specialists shall be sent by the principal tribal officer to the
Superintendent. Such notice shall be accompanied by a full statement
concerning the need for retaining counsel or specialists, as the case
may be, the purpose for which such assistance is needed and the scope of
the intended employment. The notice and statement shall be transmitted
to the Area Director by the Superintendent together with the latter's
report and recommendations with respect to the approval of such
contract.
[37 FR 10440, May 23, 1972. Redesignated at 47 FR 13327, Mar. 30, 1982]
Sec. 89.33 Notice from attorney.
Attorneys desiring to execute contracts with any one of the Five
Civilized Tribes shall be required to give written notice to the Area
Director through the Superintendent having jurisdiction over said tribe.
[37 FR 10440, May 23, 1972. Redesignated at 47 FR 13327, Mar. 30, 1982]
[[Page 280]]
Sec. 89.34 Tentative form of contract.
The principal officer of any one of the Choctaw, Cherokee, Creek,
Seminole, and Chickasaw Tribes may, if he desires, obtain a tentative
form of contract by written application to the office of the appropriate
Agency Superintendent. Requests for forms for an attorney contract
should include a statement reciting whether the attorney is desired as a
general legal counsel in connection with the business of the tribe or as
counsel in respect to specific problems on which legal counsel is
desired, or specific matters requiring representation in court or before
committees of Congress and the Departments of Government. Requests for
forms for technical service contracts should include a statement of the
particular type of service required and the purpose for which it is
needed. The anticipated term of each proposed contract should be stated.
[37 FR 10440, May 23, 1972. Redesignated at 47 FR 13327, Mar. 30, 1982]
Sec. 89.35 Execution in quintuplet.
The contract should be executed in quintuplet, and all copies of it
shall be transmitted by the Superintendent to the Area Director.
[37 FR 10440, May 23, 1972. Redesignated at 47 FR 13327, Mar. 30, 1982]
Payment of Tribal Attorney Fees With Appropriated Funds
Source: 48 FR 3969, Jan. 28, 1983, unless otherwise noted.
Sec. 89.40 General policy.
In ordinary circumstances, legal services with respect to trust
resources are provided for Indian tribe(s):
(a) By private counsel employed by tribes when such tribe is
financially able and elects to do so, or
(b) By the United States as trustee through the Office of the
Solicitor and/or the Department of Justice.
It is the policy of the Department of the Interior not to use federally
appropriated funds to pay for private counsel to represent Indian
tribes. Exceptions to that policy are listed in Sec. 89.41 of this part.
Sec. 89.41 Exceptions to policy.
The Assistant Secretary--Indian Affairs upon concurrence of the
Solicitor and receipt of a recommendation as provided by Sec. 89.43 may,
in his/her discretion, authorize the direct or indirect expenditure of
appropriated funds to pay reasonable attorney's fees in order to permit
an Indian tribe to secure private legal representation in the following
circumstances:
(a) When a tribe determines it necessary to bring a court action or
to defend itself to protect its trust resources, rights claimed under a
treaty, agreement, executive order, or statute, or its governmental
powers and the Attorney General refuses assistance or advises that
assistance is not otherwise available (Comptroller General's Opinion B-
114868, December 6, 1976).
(b) When a tribe determines it necessary to institute or to defend
itself in an administrative proceeding to protect its trust resources,
rights claimed under a treaty, agreement, executive order, or statute,
or to protect its governmental powers and the Solicitor is unable to
provide representation due to a conflict of interest or other reasons.
(c) When a tribe determines legal assistance necessary, other than
for litigation, pursuant to a contract executed under Pub. L. 93-638 and
the Solicitor has determined that the services of his office are not
available.
(d) When a tribe determines it critical, and the Assistant
Secretary--Indian Affairs finds the concerns of the tribe to have merit
after consultation with and the advice of the Solicitor, to intervene,
in a lawsuit being handled by the Justice Department or in an
administrative proceeding being handled by the Solicitor because the
responsible Government Attorney refuses either to exclude or to include
some facet of the suit or proceedings which the tribe claims renders
such legal representation completely inadequate to protect or in
contravention of the rights and interests of the tribe. Prior to
consulting with and advising the Assistant Secretary--Indian Affairs, in
a lawsuit being handled by the Justice Department, the Solicitor shall
seek the comments and advice of the Attorney General.
[[Page 281]]
(e) When a tribe determines, and the Assistant Secretary--Indian
Affairs, after consultation with the Solicitor concurs, that a
substantial possibility of a negotiated settlement or agreement exists.
(f) Payment of fees will not be allowed if such payment was not
authorized before services were performed.
(g) This rule applies to expenditure of appropriated Federal funds
and not a tribe's own funds on deposit in the U.S. Treasury.
Sec. 89.42 Factors to be considered.
The following factors are to be considered in determining whether
funds should be paid to provide private legal representation for a
tribe.
(a) The merits of the legal position which the tribe asserts.
Greater weight will be given to those cases where the tribe's legal
argument is deemed particularly meritorious than to those cases where
the tribe's position, although not entirely without merit, may be
relatively weak;
(b) The ability of the tribe to pay all or a part of its legal
expenses out of its own funds. A review of the tribe's financial
resources under this subsection will include an examination of the
tribe's total expenditures to determine whether its expenditures for
other purposes comport with the asserted importance of the case for
which it seeks funds;
(c) Whether the question the tribe seeks to litigate is being
litigated in another case by another tribe;
(d) Whether, as a matter of strategy, the issues the tribe seeks to
litigate could be more satisfactorily resolved in another forum, in a
different factual context, or a different time; and
(e) Whether the issue should be litigated at all in preference to a
legislative or other solution.
Sec. 89.43 Procedures.
The information collection requirements contained in this section do
not require approval by the Office of Management and Budget under 44
U.S.C. 3051 et seq., because it is anticipated there will be fewer than
10 respondents annually.
(a) A tribe or other organization seeking funds under Sec. 89.41
shall submit a written request through the Agency Superintendent and the
Area Director, including
(1) A detailed statement describing the nature and scope of the
problems for which legal services are sought;
(2) A statement of the terms, including total anticipated costs, of
the requested legal services contract;
(3) A current financial statement and a statement that the tribe
does not possess sufficient tribal funds or assets to pay for all or a
part of the legal services sought; and
(4) A statement of why the matter must be handled by a private
attorney as opposed to Department of Justice or Department of Interior
attorneys.
All requests shall be considered by a committee consisting of the Deputy
Assistant Secretary--Indian Affairs (Policy), or his delegate, the
Director of the Office of Trust Responsibilities in BIA or his delegate,
and the Associate Solicitor--Indian Affairs or his delegate.
(b) If two of the three committee members recommend approval of a
tribe's request, the request, along with the committee's recommendation,
shall be submitted to the Assistant Secretary for final determination
after consultation with and the advice of the Solicitor. The committee's
recommendation shall indicate the amount of funds recommended to assist
the tribe, the hourly rate allowed, the maximum amount permitted to be
expended in the recommended action and the tribal contributions, if any.
The Assistant Secretary shall approve the request only with the
concurrence of the Solicitor.
(c) The requirements imposed by this policy are supplementary to
those contained in all existing regulations dealing with attorney
contracts with Indian tribes and, in particular, those contained in
parts 88 and 89 of this title.
PART 90--ELECTION OF OFFICERS OF THE OSAGE TRIBE--Table of Contents
General
Sec.
90.1 Definitions.
90.2 Statutory provisions.
[[Page 282]]
Eligibility
90.21 General.
Elections
90.30 Nominating conventions and petitions.
90.31 Applicability.
90.32 Election Board.
90.33 Watchers and challengers.
90.35 List of voters.
90.36 Disputes on eligibility of voters.
90.37 Election notices.
90.38 Opening and closing of poll.
90.39 Voters to announce name and residence.
90.40 Ballots.
90.41 Absentee voting.
90.42 Absentee ballots.
90.43 Canvass of election returns.
90.44 Statement of supervisor.
90.45 Electioneering.
90.46 Notification of election of tribal officers.
90.47 Contesting elections.
90.48 Notice of contest.
90.49 Expenses of elections.
Authority: Sec. 9, 34 Stat. 539; sec. 7, 45 Stat. 1478; 71 Stat.
471, unless otherwise noted.
Source: 23 FR 1948, Mar. 25, 1958; 23 FR 2026, Mar. 27, 1958, unless
otherwise noted. Redesignated at 47 FR 13327, Mar. 30, 1982.
General
Sec. 90.1 Definitions.
As used in this part:
(a) The term supervisor means the tribal election official chosen
and appointed by the Principal Chief or Assistant Principal Chief to act
as chairman of the election board and shall in the absence of the
supervisor denote the Assistant Supervisor.
Sec. 90.2 Statutory provisions.
Section 7 of the Act of March 2, 1929 (45 Stat. 1481) provides in
part as follows:
That there shall be a quadrennial election of officers of the Osage
Tribe as follows: A principal chief, an assistant principal chief, and
eight members of the Osage tribal council, to succeed the officers
elected in the year 1928, said officers to be elected at a general
election to be held in the town of Pawhuska, Oklahoma, on the first
Monday in June 1930 and on the first Monday in June each four years
thereafter, in the manner to be prescribed by the Commissioner of Indian
Affairs, and said officers shall be elected for a period of four years
commencing on the 1st day of July following said elections. * * *
Eligibility
Sec. 90.21 General.
Only members of the Osage Tribe who will be eighteen years of age or
over on election day and whose names appear on the quarterly annuity
roll at the Osage Agency as of the last quarterly payment immediately
preceding the date of election will be entitled to hold office or vote
for any tribal officers. Each such voter shall be entitled to cast one
ballot and each ballot shall have exactly the same value as the voter's
headright interest shown on the last quarterly annuity roll. Any
fraction of a headright, however, shall be valued as to the first two
decimals only unless such interest is less than one-hundredth of a
share, then it shall have its full value.
(45 Stat. 1481)
[43 FR 8798, Mar. 3, 1978. Redesignated at 47 FR 13327, Mar. 30, 1982]
Elections
Sec. 90.30 Nominating conventions and petitions.
Conventions shall be held on or before the first Monday in April of
the year in which a quadrennial election is held, and there shall be
written reports of such conventions, duly certified by the secretary or
presiding officer showing total number of qualified voters in
attendance, together with the names of candidates nominated for the
various offices: Provided, That at least 25 qualified voters shall have
been in attendance at any such convention; also, names of any
independent candidates nominated by petition of not less than 25
qualified voters, each signature to be witnessed by two persons, shall
be filed with the supervisor not later than 5 p.m. on the first Monday
in April of the year in which a quadrennial election is held in order
that such names may be placed on the official ballot. No person shall be
considered a candidate for tribal office unless and until the
requirements of this section have been met.
[32 FR 10253, July 12, 1967. Redesignated at 47 FR 13327, Mar. 30, 1982]
[[Page 283]]
Sec. 90.31 Applicability.
The manner of carrying out elections to be held under the act of
June 28, 1906 (34 Stat. 539), as amended by the act of March 2, 1929 (45
Stat. 1478), as amended by the act of August 28, 1957 (71 Stat. 471), is
covered in the regulations set forth in this part. The next election
will be held on the first Monday in June 1958 and subsequent elections
will be held on the first Monday in June each four years thereafter.
Sec. 90.32 Election Board.
The Principal Chief, or in his absence, the Assistant Principal
Chief shall, not more than seventy-five days nor less than sixty-five
days preceding the day appointed by law for the holding of an election
of officers of the Osage Tribe, issue in the form and manner prescribed
in Sec. 90.37, an election notice and appoint an election board
consisting of a Supervisor who shall be chairman, Assistant Supervisor,
five judges, one of whom in addition to his regular duties shall act as
interpreter, and five clerks, whose duties shall be to conduct the
election as provided in the regulations in this part:
Provided further, That the Superintendent on the recommendation of
the election board may designate extra clerical assistants. Prior to the
date of the election, the election board shall assemble and make
necessary arrangements for the election in a building to be designated
by the Superintendent of the Osage Agency as the polling site and make
the necessary preparation for receiving prospective voters, for
receiving absentee ballots, and see to it that voting booths are
arranged to afford privacy. Members of the election board and any extra
clerical assistants designated by the Superintendent under authority
contained in this section, other than employees of the Osage Agency when
duly appointed or designated as provided for in this part may be
compensated for conducting each quadrennial election at rates to be
fixed by the Osage Tribal Council. If a member of the election board
desires to be relieved from duty for any cause, he shall notify the
Principal Chief or in his absence the Assistant Principal Chief, in
writing to that effect and the Principal Chief, or in his absence the
Assistant Principal Chief shall designate someone else to serve as a
member of the election board. The Supervisor, or in his absence the
Assistant Supervisor, shall see that the rules prescribed for conducting
the election are faithfully carried out. The ballots shall be handed out
by a judge to the voters as they present themselves to vote, after being
identified by a clerk who shall be supplied with a copy of the list of
voters prepared pursuant to Sec. 90.35. The judge before handing out a
ballot shall remove the detachable portion. A judge shall receive the
ballot after the voter has indicated his choice thereon by placing an
``X'' mark opposite the name of each candidate for whom he desires his
vote counted and shall deposit same in the ballot box. The duties of the
remaining judges in conjunction with the Supervisor will be to read the
names on the ballot when requested so as to identify the candidates or
furnish such other information as may be desired in that connection and
also to assist prospective voters unable because of language
difficulties or physical incapacity to cast votes for candidates of
their choice, and to undertake such other duties as may be assigned by
the Supervisor.
[27 FR 2458, Mar. 15, 1962. Redesignated at 47 FR 13327, Mar. 30, 1982]
Sec. 90.33 Watchers and challengers.
Any candidate or political party may name a person to act as watcher
and challenger at any election provided for by the regulations in this
part. Each watcher and challenger shall be appointed in writing by the
candidate or political party he or she represents. The watchers and
challengers shall have the right to be present in the polling place but
outside the voting booths and to watch the election officials, the
balloting, the call, the tally, and the recording of the result of the
vote. It shall be the duty of the watcher to watch, listen, and observe
the count for all candidates voted for to insist upon an honest and fair
count but shall have no further authority than to have the election
judges and clerks note or record any objections to the count and to
challenge the result thereof. The challenger shall have the right to
question any voter and his right to vote.
[[Page 284]]
Watchers shall not divulge or give out any intimation or information as
to the count prior to announcement by the election board and shall be
subject to the same rules governing the election board with regard to
leaving and returning to the polling place. A watcher or challenger
shall receive no compensation for his services.
[27 FR 2458, Mar. 15, 1962. Redesignated at 47 FR 13327, Mar. 30, 1982]
Sec. 90.35 List of voters.
The Superintendent of the Osage Agency shall compile a list of the
voters of the Tribe who are qualified under Sec. 90.21. Such list shall
set forth only the name and last known address of each voter. The
Superintendent shall furnish copies of the list to the Supervisor of the
election board and shall post copies at the headquarters of the Osage
Agency at Pawhuska, Okla., and such other places as the election board
may determine to be appropriate. The compilation, posting and
distribution of copies to the Supervisor of the election board shall be
done as soon as possible after preparation of the last quarterly annuity
roll preceding the election. Copies of the list shall also be made
available to all qualified candidates for office and for the purpose of
checking off the name of each voter as his ballot is cast and for
determining, in the event of question, the right of any individual to
vote.
[27 FR 2458, Mar. 15, 1962. Redesignated at 47 FR 13327, Mar. 30, 1982]
Sec. 90.36 Disputes on eligibility of voters.
(a) The election board shall fix a date not less than five days
before the election at which time all complaints will be heard. The
election board shall, at least three days before the date of election,
determine any claim or challenge as to the right of any person to be
listed on the roll of eligible voters.
(b) Any voter of the tribe shall have the right to challenge any
person presenting himself to vote and it shall be the duty of the
supervisor and a judge of the board to make such investigation then and
there as they deem essential, and decide the question of whether or not
a person is a listed voter.
Sec. 90.37 Election notices.
The election notice shall set forth the place, date and time for
holding the election, qualification of voters, method of nominating
candidates, and closing date for same, method of locating each name on
the ballot and the names of each member of the election board. As soon
as possible a copy of the notice of the election, after approval by the
Superintendent of the Osage Agency, shall be mailed to each qualified
voter at his last known address.
Sec. 90.38 Opening and closing of poll.
The poll shall remain open without intermission from 8 a.m. to 8
p.m. on the date of the election. When all else is in readiness for the
opening of the poll the supervisor shall open the ballot box in view of
the other election officers, shall turn same top down to show that no
ballots are contained therein, and shall then lock the box and retain
the key in his possession.
[32 FR 10253, July 12, 1967. Redesignated at 47 FR 13327, Mar. 30, 1982]
Sec. 90.39 Voters to announce name and residence.
Each voter shall upon presenting himself to vote announce to the
clerk his name, and address.
Sec. 90.40 Ballots.
The Superintendent of the Osage Agency shall have ballots printed
showing the name and the office for which each candidate has been
nominated and also space for showing the value of the respective
ballots. The Superintendent shall have recorded on a detachable portion
of each ballot the name of the voter. The value of each voter's ballot
shall be recorded on the principal portion of the respective ballots.
Any faction or group has the right to nominate any candidate it chooses,
in accordance with the regulations prescribed in this part. The names of
such candidates shall be printed on the ballot in the manner set forth
as follows:
(a) Under the heading, Principal Chief, with notation to vote for
one, shall appear names of all candidates for that office. Under the
heading, Assistant Chief, with notation to vote for
[[Page 285]]
one, shall appear the names of all candidates for that office. Under the
heading, Members of Council, with notation to vote for eight, shall
appear names of all candidates for council. Names of candidates for
office shall appear only once on ballot, regardless of the fact that
they may have been nominated on more than one ticket. The order in which
names of qualified candidates for office will be placed on the ballot
shall be by lot method of drawing in a manner to be determined by the
tribal council, and to be free from or regardless of party or factional
affiliations. A candidate may use one nickname. Titles and professional
designations will not be shown on the ballot. A record shall be kept of
any ballots that may be mutilated, canceled, or used as samples.
(b) A space will be provided on each ballot in which the clerk prior
to issuing the ballot shall note the value of the ballot which shall be
exactly the same value as the voter's headright interest as shown on the
last quarterly annuity roll, except any fraction of a headright shall be
valued as to the first two decimals only unless such interest is less
than one one-hundredth then it shall have its full value. As
verification the clerk shall initial the ballot so numbered in the
margin. In addition each ballot shall be stamped ``Official Ballot''
(facsimile signature Supervisor Osage Election Board). Should any voter
spoil or mutilate his ballot in his effort to vote he may surrender the
ballot to the supervisor who shall give the voter in lieu thereof
another ballot which shall show its appropriate value. The spoiled or
mutilated ballot or any portion of a spoiled or mutilated ballot shall
be retained with other records pertaining to the election.
[32 FR 10253, July 12, 1967. Redesignated at 47 FR 13327, Mar. 30, 1982]
Sec. 90.41 Absentee voting.
(a) An eligible voter who will be unable to appear at the poll in
Pawhuska on election day shall be entitled to vote by absentee ballot.
Absentee ballots shall be identical to the ballots described in
Sec. 90.40 with the exception that each such ballot shall be stamped
``Absentee Ballot,'' and reflect the date of issuance. All applications
for absentee ballots shall be made in writing by the voter. Each ballot
shall indicate the value of the vote to which the voter is entitled. The
supervisor shall maintain a file of all applications, together with a
record of the names and addresses of all persons to whom absentee
ballots are mailed or delivered, including the date of mailing or
delivery. All absentee ballots must be postmarked and be in the Pawhuska
Post Office prior to 8 a.m. on election day.
(b) It shall be the duty of the supervisor, upon receipt of an
application, to mail or deliver to the applicant an envelope containing
a ballot (after removing the detachable portion), and an inner and outer
envelope as described herein. This shall be done not more than 30 days
before the election, except that the envelopes and ballots may be mailed
to absentee voters residing outside the continental limits of the United
States at any time after mailing of the election notice.
(c) If the absentee ballot and accompanying envelopes are to be
mailed to the prospective voter, the written request must be submitted
to the supervisor on or before 5 p.m. of the Wednesday preceding the
election. The absentee ballot and accompanying envelopes may be
delivered personally to the prospective voter any time prior to the
opening of the poll.
(d) The absentee voter shall mark the ballot and seal it only in the
inner envelope. The following shall be printed on the inner envelope:
Absentee Ballot
election of officers of the osage tribe
june --, 19--
(e) The absentee voter shall enclose the inner envelope in the outer
envelope and after sealing same shall execute the certificate imprinted
thereon which certificate shall be in the following form:
I will be unable to appear at the poll in Pawhuska, Oklahoma, on the
---- day of June 19-- and have enclosed my ballot for the election of
officers of the Osage Tribe.\1\
---------------------------------------------------------------------------
\1\ Criminal penalties are provided by statute for knowingly filing
false information in such statements (18 U.S.C. 1001).
---------------------------------------------------------------------------
[[Page 286]]
(Voter's signature)--------------------.
The outer envelope shall be preaddressed as follows: Supervisor, Osage
Election Board, Post Office Box ----, Pawhuska, Okla. 74056.
(45 Stat. 1481)
[23 FR 1948, Mar. 25, 1958; 23 FR 2026, Mar. 27, 1958, as amended at 43
FR 8799, Mar. 3, 1978. Redesignated at 47 FR 13327, Mar. 30, 1982]
Sec. 90.42 Absentee ballots.
The absentee ballots shall remain in the locked box in the post
office, Pawhuska, Okla., until 8 a.m. on the day of election at which
time the supervisor or assistant supervisor of the election board,
accompanied by the Superintendent of the Osage Agency or his designated
representatives, shall receive the locked box from the post office and
shall personally transport the locked box to the polling site where it
shall be delivered immediately to the supervisor or assistant supervisor
of the election board. The supervisor or the assistant supervisor in the
presence of at least two judges shall unlock the locked box containing
the absentee ballots and shall then determine whether the person whose
name is signed to the statement is a qualified voter of the Osage Tribe
and check said voter off the poll list before opening the outer
envelope. After it has been determined which of the absentee ballots
have been cast by duly qualified electors, the supervisor in the
presence of the election board shall cause the valid ballots in the
sealed inner envelopes to be placed in the ballot box.
[32 FR 10254, July 12, 1967. Redesignated at 47 FR 13327, Mar. 30, 1982]
Sec. 90.43 Canvass of election returns.
(a) Immediately after the polls are closed at 8 p.m., the counting
of the ballots shall commence. The supervisor and not less than two
judges shall remain continuously in the room until the ballots are
finally counted. One or more judges shall act as official counters and
two or more clerks shall record the value of each vote and shall
comprise a vote tallying team. The vote shall be recorded on two tally
sheets by each team of judges and clerks under the name of each
candidate for whom the voter designated his choice. The count shall
continue until all votes have been recorded. The duties of the remaining
officials of the election board will be to assist in conducting the
election. After the vote of each ballot is recorded, the ballot shall be
pierced by needle and string and after the ballots have been so counted,
the ends of the string shall be tied together. After all other ballots
have been counted, the sealed inner envelopes containing the absentee
ballots shall be opened and all ballots found to be valid shall be
counted and treated in the same manner as other valid ballots. All
ballots and mutilated ballots; registration lists of voters, both
absentee and those appearing at the poll; all tally sheets; and all
other election materials shall be placed in the ballot box which shall
be locked. The supervisor shall then deliver the locked ballot box and
keys to same to the Superintendent, Osage Agency, and the box shall be
retained in a safe place until opened by order of the supervisor or
election board in the event a contest is filed. If no contest is filed,
the ballots shall be destroyed 180 days after the election. No
information concerning voting shall be posted or made public information
until after 8 p.m.
(b) Should any ballot be marked for more than one principal chief or
assistant chief or for more than eight councilmen, only that section of
the ballot wherein the error was made shall be declared void and the
remaining section or sections shall be counted in the same manner as
other ballots. Absentee ballots shall be declared void when items other
than the ballot are enclosed in the inner envelope, the voter fails to
sign the statement appearing on the outer envelope, and for failure to
seal the inner envelope or enclose the inner envelope in the outer
envelope. Votes cast for individuals whose names are not printed on the
official ballot shall not be counted.
[32 FR 10254, July 12, 1967, as amended at 43 FR 8799, Mar. 3, 1978.
Redesignated at 47 FR 13327, Mar. 30, 1982]
Sec. 90.44 Statement of supervisor.
Following the election a statement is to be prepared by the
supervisor pertaining to the conduct of the election and certifying to
the correct tabulation of the votes for each candidate. The statement
shall also set forth the
[[Page 287]]
names of the elected candidates and the office to which each was
elected. The statement shall be duly acknowledged before an officer
qualified to administer oaths and delivered to the Superintendent of the
Osage Agency.
[32 FR 10254, July 12, 1967. Redesignated at 47 FR 13327, Mar. 30, 1982]
Sec. 90.45 Electioneering.
No person shall be allowed to electioneer within the building where
and when the election is in progress and it will be the duty of the
supervisor to request the detail of a police officer to assist him in
maintaining order about the building during the progress of the
election.
Sec. 90.46 Notification of election of tribal officers.
The Superintendent of the Osage Indian Agency shall in due time give
written notice to candidates of their election to the various tribal
offices and as soon thereafter as practicable such tribal officers shall
appear and subscribe to oath of office before an officer qualified to
administer oaths and such oaths shall be delivered to the Superintendent
and by him transmitted to the Commissioner of Indian Affairs.
Sec. 90.47 Contesting elections.
Any unsuccessful candidate may before noon on Monday next following
the tribal election file with the supervisor a challenge to the
correctness of the vote cast for the office for which he was a
candidate, which challenge must be accompanied by a deposit of $500. The
election board or the supervisor shall order a recount and proceed with
same as provided in this part. If the recount results in the contestant
being elected, the deposit shall be refunded; otherwise, the deposit
shall be used to defray all expenses of said recount and any balance not
so used shall be returned to the contestant.
[32 FR 10254, July 12, 1967. Redesignated at 47 FR 13327, Mar. 30, 1982]
Sec. 90.48 Notice of contest.
It shall be the duty of the supervisor, to serve upon the contestee,
or contestees, directly affected by such challenge or contest, a true
copy of said written application, the original of which is required to
be filed with the supervisor. Said service shall be made in person,
where possible, within twenty-four hours after the filing of said
original challenge or contest, and where personal service is impossible
within such time, on account of the absence of contestee, or contestees,
from Osage County, or for any other reason, it is hereby made the duty
of the supervisor to serve a true copy upon the Superintendent of the
Osage Indian Agency: Provided, That for the purpose of such constructive
service, the Superintendent is hereby made and constituted the service
agent of each and every candidate in all tribal elections, and by filing
petition as a candidate, such candidate shall thereby be presumed
conclusively to have accepted the terms and provisions hereof and
specifically the constructive service as aforesaid.
Sec. 90.49 Expenses of elections.
All expenses of elections including compensation to the members of
the election board and any clerical assistants designated by the
Superintendent under Sec. 90.32, stationery supplies, meals, printing
and postage shall be borne by the Osage Tribe as set forth in an
appropriate Osage Tribal Council resolution establishing current pay
scale.
[27 FR 2459, Mar. 15, 1962. Redesignated at 47 FR 13327, Mar. 30, 1982]
PART 91--GOVERNMENT OF INDIAN VILLAGES, OSAGE RESERVATION, OKLAHOMA--Table of Contents
Sec.
91.1 Purpose.
91.2 Definitions.
91.3 Description of village reserves.
91.4 Plats of village reserves.
91.5 Tracts reserved from selection by individuals.
91.6 Custody of public buildings and tracts reserved from selection by
individuals; village committees.
91.7 Permits to occupy land for dwelling purposes.
91.8 Sale or mortgage of improvements.
91.9 Inheritance of improvements.
91.10 Renting of improvements.
91.11 Domestic animals in village reserves.
[[Page 288]]
91.12 Business enterprises and public buildings.
91.13 Health, sanitation, and sewerage disposal.
91.14 Confirmation of permits.
91.15 Suspension or amendment of regulations.
Authority: Subdivision 9 of sec. 2, sec. 12, Act of June 28, 1906
(34 Stat. 539), sec. 3, Act of June 24, 1938 (52 Stat. 1034). Interpret
or apply Act of April 18, 1912 (37 Stat. 86).
Source: 28 FR 10203, Sept. 18, 1963, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
Sec. 91.1 Purpose.
The purpose of the regulations in this part is to establish policies
and procedures for the government of Indian villages, Osage Reservation,
Oklahoma.
Sec. 91.2 Definitions.
As used in this part:
(a) Secretary means the Secretary of the Interior or his authorized
representative.
(b) Superintendent means the Superintendent or other officer in
charge of Osage Agency.
(c) Council means the Osage Tribal Council, that elected governing
body of the Osage Tribe of Indians.
(d) Tribal Member means any person of Osage Indian blood of whatever
degree, allotted or unallotted.
(e) Minor means any person under 21 years of age.
(f) Resident means an adult tribal member who has resided in the
village for thirty (30) days, in the 12-month period preceding the
election.
Sec. 91.3 Description of village reserves.
The act of June 28, 1906 (34 Stat. 539), as amended by the act of
June 24, 1938 (52 Stat. 1034), set aside certain tribal lands
exclusively as dwelling sites for the use and benefit of the Osage
Indians until January 1, 1984, unless otherwise provided by Act of
Congress. These lands are described as follows:
(a) Grayhorse Indian Village. The southeast quarter (SE \1/2\) of
the southeast quarter (SE \1/4\), and the west half (W \1/2\) of the
southwest quarter (SW \1/4\) of the southeast quarter (SE \1/4\), and
the south half (S \1/2\) of the northeast quarter (NE \1/4\) of the
southeast quarter (SE \1/4\) of the southwest quarter (SW \1/4\), and
the south half (S \1/2\) of the north half (N \1/2\) of the northeast
quarter (NE \1/4\) of the southeast quarter (SE \1/4\) of the southwest
quarter (SW \1/4\), and the southeast quarter (SE \1/2\) of the
southeast quarter (SE \1/4\) of the southwest quarter (SW \1/4\) of sec.
fifteen (15); and the north half (N \1/2\) of the northeast quarter (NE
\1/4\), and the northeast quarter (NE \1/4\) of the northwest quarter
(NW \1/4\) of sec. twenty-two (22), all in township twenty-four (24)
north, range six (6) east of the Indian meridian, and containing 197.5
acres, more or less.
(b) Hominy Indian Village. Lots Six (6) and Seven (7), and the East
Half (E \1/2\) of the Southwest Quarter (SW \1/4\) of Section Six (6) in
Township Twenty-two (22) North, Range Nine (9) East of the Indian
Meridian, and containing 160 acres, more or less.
(c) Pawhuska Indian Village. Lots One (1) and Two (2), and the South
Half (S \1/2\) of the Northeast Quarter (NE \1/4\) of Section Three (3)
in Township Twenty-five (25) North, Range Nine (9) East of the Indian
Meridian, and containing 160 acres, more or less.
[28 FR 10203, Sept. 18, 1963, as amended at 33 FR 8270, June 4, 1968.
Redesignated at 47 FR 13327, Mar. 30, 1982]
Sec. 91.4 Plats of village reserves.
Plats of the Grayhorse Indian Village, the Pawhuska Indian Village,
and the Hominy Indian Village, certified by Ralph M. Tolson, Registered
Engineer, on July 5, 1966, are the official plats of dedication of said
villages and shall be filed of record with the county clerk of Osage
County, State of Oklahoma.
[33 FR 8270, June 4, 1968. Redesignated at 47 FR 13327, Mar. 30, 1982]
Sec. 91.5 Tracts reserved from selection by individuals.
The following described tracts, as shown on the plats of the three
villages, are reserved from selection by individuals and are set aside
for sepultural use or for public use by tribal members:
(a) Grayhorse Indian Village:
(1) Public Squares.
(2) Parks, and
(3) Cemetery.
(b) Hominy Indian Village:
(1) Public squares.
(2) Cemetery, and
[[Page 289]]
(3) Lot 1 in block 1 set aside for religious and educational
purposes to the Society of Friends, its Associate Executive Committee of
Friends on Indian Affairs and its or their representative at Hominy,
Okla., by Resolution of the Osage Tribal Council dated June 6, 1956, and
approved by the Assistant Secretary of the Interior, September 7, 1956.
(c) Pawhuska Indian Village:
(1) Wakon Iron Square.
(d) Those individuals who have summer homes or dance arbors located
on the Public Square of the Hominy Indian Village shall be permitted to
retain said summer homes or dance arbors during their lifetimes if they
are maintained in a condition satisfactory to the Hominy Indian Village
Committee. Following the owner's death, the improvements shall be
removed within ninety (90) days or become the property of the Hominy
Indian Village.
[33 FR 8270, June 4, 1968. Redesignated at 47 FR 13327, Mar. 30, 1982]
Sec. 91.6 Custody of public buildings and tracts reserved from selection by individuals; village committees.
Each of the three (3) villages described herein shall organize a
village committee to provide for the health, safety and welfare of its
inhabitants, for the maintenance of tribal property, and to serve as
custodian and manager of tribal property and improvements located within
said village except that tract described in Sec. 91.5(b)(3). Each
village committee shall be composed of five (5) members, domiciled in
the village, one of whom shall be designated by the committee as
chairman. The committees shall be elected biennially by the residents of
the villages, except in the Grayhorse Indian Village where the committee
shall be appointed by the Council from among those tribal members
residing in or historically associated with the village. The procedure
for initial committee elections shall be established by the Council.
Each village committee shall prepare a constitution and by-laws to be
approved by the Council and the Superintendent before said committee
will have any authority to govern, and any changes or amendments thereto
must likewise be approved by the Council and the Superintendent. All
actions of the committee are subject to appeal to the Council whose
decision shall be final: Provided, That such committee shall have no
control or authority to grant permission for the use of tribal property
described in Sec. 91.5 for the holding of dances. Such authority shall
remain in the Council and any group or individual using the property for
dance purposes without the written permission of the Council shall be in
violation of these regulations: Provided, further, That the village
committee shall not permit the use of any of the tracts described in
Sec. 91.5 in any manner that would conflict with Council authorization
for dance purposes.
Sec. 91.7 Permits to occupy land for dwelling purposes.
The issuance of permits for the use of land for dwelling purposes
within any village reserve described in Sec. 91.3 except tracts reserved
for specific purposes by Sec. 91.5 will be under the jurisdiction of the
Superintendent. Permits may be issued only to tribal members upon
application to the Superintendent: Provided, That only one permit shall
be issued to any one individual and that erection of a dwelling house
shall be started on such land within six (6) months from date of
approval of the permit or such permit shall be automatically terminated
except that upon written application the Superintendent may extend such
permit for an addition six (6) months: Provided, further, That only one
dwelling shall be constructed under any one permit. Permits shall be
issued for the use of one to three contiguous lots, depending upon the
quality and permanency of the improvements to be placed thereon. Permits
issued under this section shall be made in duplicate in a manner to be
prescribed by the Superintendent. The original copy shall be filed in
the Branch of Realty, Osage Agency, and the duplicate copy shall be
mailed to the permittee.
[33 FR 8270, June 4, 1968. Redesignated at 47 FR 13327, Mar. 30, 1982]
Sec. 91.8 Sale or mortgage of improvements.
No improvements located within the village reserves described in
Sec. 91.3 shall
[[Page 290]]
be sold, mortgaged, transferred or assigned without the approval of the
Superintendent.
(a) Improvements may be mortgaged for home improvements or the
erection of new improvements. Such mortgages shall be made with
acceptable lending agencies and shall be approved by the Superintendent.
The lending agency shall have the right:
(1) To foreclose the mortgage and to sell the improvements within
six (6) months of the date of foreclosure judgment to any eligible
tribal member with the understanding that the use of the land on which
the improvements are situated shall be transferable to the new owner; or
(2) To foreclose the mortgage and to sell the improvements to a non-
tribal member, who shall remove the improvements from the village
reserve within six (6) months of the date of sale. In the event of
removal of the mortgaged property, it shall be the responsibility of the
lending agency to level the land on which such improvements were located
and to remove all debris, sidewalks, etc., leaving the premises in an
orderly condition. Failure to make such disposition within the time
stated in this paragraph shall result in forfeiture of the improvements
to the village committee.
(b) Improvements may be sold by the owner thereof with the approval
of the Superintendent. Sale of such improvements shall be accomplished
by bill of sale executed by the owner in triplicate who shall file all
copies with the Superintendent. If the purchaser of such improvements is
a member of the Osage Tribe, the bill of sale shall be accompanied by a
relinquishment of the permit in favor of the vendee for the occupancy of
the land on which such improvements are located. If the purchaser is not
a member of the Osage Tribe, such purchaser shall be required to endorse
an agreement on the reverse of all copies of the bill of sale that he
will:
(1) Remove the improvements from the village reserve within six (6)
months of date of approval of the bill of sale;
(2) Transfer the title thereof as provided in this section to a
tribal member who is eligible; or
(3) Failing to make such disposition within the time stated forfeit
title to the village committee.
(c) Upon approval of the bill of sale by the Superintendent, the
original or certified copy shall be filed in the Branch of Realty, Osage
Agency, the duplicate copy mailed to the purchaser, and the triplicate
copy mailed to the seller.
Sec. 91.9 Inheritance of improvements.
(a) Upon the death of the owner of improvements in a village
reserve, such improvements shall, in probate matters, be subject to the
jurisdiction of the county courts, State of Oklahoma, and shall be
subject to inheritance or bequest in accordance with applicable State
and Federal laws. The land within a village reserve is held in trust for
the benefit of tribal members and is not subject to inheritance or
purchase.
(b) When such improvements or interests therein are inherited by or
bequeathed to a non-tribal member, he or she shall dispose of such
improvements in the manner provided for disposition of improvements by
purchaser under Sec. 91.8: Provided, That when such non-tribal member is
a legally adopted minor child such child may continue to occupy the land
during its minority: Provided, further, That when such non-tribal member
is the surviving spouse such individual, so long as he or she remains
single may continue to occupy the land during his or her lifetime or may
sell the improvements as provided herein and may receive a proceeds
therefrom. In the event such surviving spouse remarries, the right to
continuous occupancy of the land pursuant to this Sec. 91.9 shall
terminate and such surviving spouse shall make disposition of such
improvements as provided for purchasers in Sec. 91.8. If upon the death
of the surviving spouse title to the improvements vests in a non-tribal
member, they shall be sold as provided in Sec. 91.8 and the proceeds
distributed to the persons entitled thereto.
(c) Improvements inherited by tribal members may be occupied or
rented in accordance with Sec. 91.10: Provided, No tribal member shall
be issued more than two permits or own more than two sets of
improvements, one of which
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must be inherited property and one occupied by the tribal member:
Provided, further, No tribal member shall be permitted to retain more
than one set of improvements for rental. If this provision is violated,
the tribal member will have three years, from the date of written notice
from the Superintendent that such provision has been violated, within
which to dispose of the surplus property in accordance with Sec. 91.8.
Sec. 91.10 Renting of improvements.
The Superintendent may issue a certificate of permission to rent for
a period of one (1) year improvements located on land held under valid
permit, subject to renewal in the discretion of the Superintendent, upon
written application by the owner of such improvements and the
prospective tenant: Provided, That such prospective tenant is a tribal
member and the property to be rented is that heretofore occupied or
inherited by the owner. Certificates of permission issued under this
section may be withdrawn upon 30-day notice to the tenant by the
Superintendent and such tenant expelled from the village reserve. The
application and certificate of permission on a form to be prescribed by
the Superintendent shall be made in triplicate and all copies forwarded
to the Superintendent for action. Upon approval by the Superintendent,
the original copy of the application and certificate shall be filed in
the Branch of Realty, Osage Agency, the duplicate copy of each forwarded
to the owner, and the triplicate copy of each forwarded to the tenant.
Sec. 91.11 Domestic animals in village reserves.
(a) No livestock shall be permitted to trespass in any village
reserve except that unassigned lots or unplatted areas enclosed by
adequate fences may be leased by the village committee with the approval
of the Superintendent and the proceeds therefrom credited to the account
of the village committee. Trespassing livestock may be impounded by the
village committee. The village committee shall give notice of
impoundment to the owner of the animal, if known, by certified mail or
by posting in the village square. The notice shall advise the owner that
a $10 charge shall be assessed per day for each animal impounded and a
reasonable charge for forage consumed and that the animal or animals
shall be sold at the expiration of twenty (20) days from the date of
mailing or posting the notice. In the event an animal is sold, the
balance after deducting $10 per day for impoundment and a reasonable
forage charge, shall be deposited at the Osage Agency and the owner may
claim said funds if satisfactory proof of ownership is presented to the
Superintendent of the Osage Agency within six (6) months of the date of
sale. After six (6) months, any funds remaining on deposit will become
the property of the village in which the animal was trespassing.
(b) No horses, mules, bovine, hogs, sheep, or goats shall be penned
on assigned lots.
[33 FR 8270, June 4, 1968. Redesignated at 47 FR 13327, Mar. 30, 1982]
Sec. 91.12 Business enterprises and public buildings.
No permanent business enterprises shall be carried on within the
boundaries of a village reserve and no public buildings shall be erected
on lands within the boundaries of a village reserve except on tracts
described in Sec. 91.5 maintained for the use and benefit of tribal
members. The construction or acquisition of dwellings for rental
purposes is prohibited. The village committee may grant permission and
charge fees for temporary concessions within the village reserve during
Indian celebrations, dances, community gatherings, etc., such temporary
permits to last only for the term of activities for which granted.
Sec. 91.13 Health, sanitation, and sewerage disposal.
Health, sanitation, and sewerage disposal problems within the
village reserves shall be subject to and controlled by applicable County
and State laws.
Sec. 91.14 Confirmation of permits.
The Superintendent shall prepare a certified list of all current
permittees with a description of lots held, which descriptions shall
conform to the plats certified July 5, 1966. Said list shall be
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served by certified mail on the individual permittees and the village
committee chairman and shall be posted at the Osage Agency and each of
the three village squares. Unless a protest is filed with the
Superintendent within ninety (90) days of the mailing and posting, said
certified list of assigned lots and the individual permittees shall be
final and conclusive. Protests may be filed by tribal members claiming
an interest in an assigned lot and such protest shall be determined by
the Superintendent after notice and hearing.
[33 FR 8271, June 4, 1968. Redesignated at 47 FR 13327, Mar. 30, 1982]
Sec. 91.15 Suspension or amendment of regulations.
The regulations in this part may be suspended or amended at any time
by the Secretary of the Interior: Provided, That such amendments or
suspension shall not serve to change the terms or conditions of any
mortgage approved in accordance with Sec. 91.8(a).
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