[Federal Register Volume 59, Number 13 (Thursday, January 20, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-1275]
[[Page Unknown]]
[Federal Register: January 20, 1994]
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Part V
Department of the Interior
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Bureau of Indian Affairs
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25 CFR Part 67
Preparation of a Roll of Independent Seminole Indians of Florida; Final
Rule
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 67
RIN 1076-AC48
Preparation of a Roll of Independent Seminole Indians of Florida
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Final rule.
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SUMMARY: The Bureau of Indian Affairs (BIA) is adding a new part 67 to
title 25 of the Code of Federal Regulations to provide procedures to
govern the preparation, certification and approval of a descendancy
roll of Independent Seminole Indians of Florida. The descendancy roll
of Independent Seminole Indians of Florida will be used as the basis
for compiling a list of persons eligible for a per capita distribution
of a portion of the Seminole judgment funds.
EFFECTIVE DATE: January 20, 1994.
FOR FURTHER INFORMATION CONTACT: Bill D. Ott, Area Director, Bureau of
Indian Affairs, Eastern Area Office, 3701 North Fairfax Drive, Mailstop
260, Virginia Square Plaza, Arlington, Virginia 22201, telephone
number: (703) 235-3006.
SUPPLEMENTARY INFORMATION: This final rule is published in exercise of
the authority delegated by the Secretary of the Interior (Secretary) to
the Assistant Secretary-Indian Affairs in the Departmental Manual at
209 DM 8.
Section 7 of the Act of April 30, 1990, (Act) Public Law 101-277,
104 Stat. 143, which provides for the use and distribution of funds
awarded the Seminole Indians in Dockets 73, 151, and 73-A of the Indian
Claims Commission, directs the Secretary to compile a roll of certain
individuals of Seminole Indian descent under regulations prescribed by
the Secretary. To be eligible for enrollment, Seminole Indian
descendants must have been living on April 30, 1990, must be listed on
or be lineal descendants of persons listed on the annotated Florida
Seminole Agency Census of 1957 as independent Seminoles, and must not
be members of a federally-recognized tribe.
To establish eligibility for enrollment, the final rule requires
persons to file or have filed on their behalf an application form with
the Superintendent, Seminole Agency, Bureau of Indian Affairs, by the
deadline specified in proposed Sec. 67.4(b). The deadline is 150 days
from the date of publication of the final rule in the Federal Register.
An application filed more than 150 days after the date of publication
of the final rule will be rejected for failure to file on time
regardless of whether the applicant otherwise meets the qualifications
for enrollment.
Section 7(d) of the Act provides that except for persons who apply
for enrollment and are determined eligible and who apply for and accept
a per capita share of the payment, ``distribution of the award in
accordance with this Act shall not be construed to impair, diminish or
affect in any manner any rights and claims of the independent Seminole
Indians, either as a group or individually, to any lands or natural
resources in the State.'' Because acceptance of a per capita share of
the judgment funds may impair, diminish or affect the claims of the
Independent Seminole Indians to lands or natural resources in the State
of Florida, the BIA has determined that individual applicants must be
made aware of this before accepting a per capita share of the judgment
funds.
The final rule provides for the applicant to make an election on
the application form as to whether he or she wishes to share in the per
capita payment. In other words, individuals will not only be applying
to establish that they qualify for enrollment, but will also be
electing whether they wish to receive a per capita payment of the
judgment funds if they are determined to meet the qualifications for
enrollment.
Because of the serious potential impact of such an election, the
final rule restricts the making of the election to accept the per
capita payment to adult applicants or to legal guardians of incompetent
adults or, in the case of minors, such election is restricted to the
parents or legal guardians. Therefore, those who fail to elect to share
in the payment will not be eligible to share in the payment even though
they have qualified for enrollment.
In most cases where the BIA is preparing a roll of Indians, general
public notice and actual notice to potentially eligible individual
beneficiaries is provided. Actual notice to potentially eligible
individuals is possible because of the existence, in most cases, of a
previously prepared roll or a tribal membership roll. In this instance,
there exists no previously prepared or tribal membership roll because
the Independent Seminole Indians of Florida have not been affiliated
with any other group or tribe of Indians.
The census roll prepared in 1957 does not show addresses for the
persons named on the roll. Even if there were addresses shown, after
the elapse of more than 30 years, the addresses would be so out-of-date
that it would be impractical to use them. Consequently, no general
mailings of notices to potentially eligible beneficiaries is
anticipated. Reasonable effort will be made to place notices for public
display in community buildings, tribal buildings and Indian centers as
well as publishing notices in newspapers in appropriate localities
throughout the State of Florida. It is also anticipated that public
meetings will be held in appropriate localities in the State of Florida
to explain the provisions of the Act and the need to apply for
enrollment by the deadline specified.
The information collection requirement contained in this final rule
does not require the approval of the Office of Management and Budget
under 44 U.S.C. 3501 et seq.
The Department of the Interior (Department) has determined that
this is not a major rule under Executive Order (E.O.) 12291 because
only a limited number of individuals will be affected. Those
individuals who are enrolled will be eligible to participate in the
distribution of a portion of a relatively small judgment award granted
the Seminole Indians.
Comments and Changes
A proposed rule to add a new part 67 to title 25 of the CFR was
published for public comment in the Federal Register on Wednesday,
September 30, 1992, (57 FR 45252). Interested persons were invited to
submit comments by October 30, 1992. The period for comment on proposed
part 67 to title 25 of the CFR to provide procedures to govern the
preparation, certification, and approval of a descendancy roll of
Independent Seminole Indians of Florida, closed on October 30, 1992. No
timely written comments were received.
The Department has certified to the Office of Management and Budget
that these final regulations meet the applicable standards provided in
sections 2(a) and 2(b) (2) of E.O. 12778.
The Department has determined that this rule will not have a
significant economic impact on a substantial number of small entities
within the meaning of the Regulatory Flexibility Act (5 U.S.C. 601 et
seq.).
In accordance with E.O. 12630, the Department has determined that
this rule does not have significant takings implications.
The Department has determined that this rule does not have
significant federalism effects.
The Department has determined that this rule is not a major Federal
action significantly affecting the quality of the human environment and
that neither an environmental assessment nor an environmental impact
statement is required pursuant to the National Environmental Policy Act
of 1969.
List of Subjects in 25 CFR Part 67
Indians--claims, Indians--enrollment.
For the reasons set out in the preamble, a new part 67 of title 25,
chapter I of the Code of Federal Regulations is added as set forth
below.
PART 67--PREPARATION OF A ROLL OF INDEPENDENT SEMINOLE INDIANS OF
FLORIDA
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.
Sec. 67.1 Definitions.
As used in this part:
Act means the Act of Congress approved April 30, 1990, Public Law
101-277, 104 Stat. 143, which authorizes the use and distribution of
funds awarded the Seminole Indians in Dockets 73, 151, and 73-A of the
Indian Claims Commission.
Adopted person means a person whose natural parents' parental
rights have been terminated by court order and persons other than the
natural parents have exercised or do exercise parental rights with
regard to the adopted person.
Applicant means a person who is making application for inclusion on
the roll prepared by the Secretary pursuant to the Act of April 30,
1990, by either personally filing an application or by having a sponsor
complete and file an application on his or her behalf.
Assistant Secretary means the Assistant Secretary for Indian
Affairs or authorized representative.
BIA means the Bureau of Indian Affairs, Department of the Interior.
Commissioner means the Commissioner of Indian Affairs or authorized
representative.
Director means the Area Director, Eastern Area Office, Bureau of
Indian Affairs or authorized representative.
Lineal descendant(s) means those persons who are the issue of the
ancestor through whom enrollment rights are claimed; namely, the
children, grandchildren, etc. It does not include collateral relatives
such as brothers, sisters, nieces, nephews, cousins, etc., or adopted
children, adopted grandchildren, etc.
Living means born on or before and alive on the date specified.
Secretary means the Secretary of the Interior or authorized
representative.
Sponsor means any person who files an application for enrollment or
an appeal on behalf of another person.
Superintendent means the Superintendent, Seminole Agency, Bureau of
Indian Affairs or authorized representative.
Sec. 67.2 Purpose.
The regulations in this part govern the compilation of a roll of
persons who meet the requirements specified in section 7 of the Act who
will be eligible to share in the distribution of a portion of the
judgment funds awarded the Seminole Indians in Dockets 73, 151, and 73-
A of the Indian Claims Commission.
Sec. 67.3 Information collection.
The information collection requirement contained in this part does
not require approval by the Office of Management and Budget under 44
U.S.C. 3501 et seq.
Sec. 67.4 Qualifications for enrollment and the deadline for filing
application forms.
(a) The roll shall contain the names of persons of Seminole Indian
descent who:
(1) Were born on or before, and living on April 30, 1990;
(2) Are listed on or who are lineal descendants of persons listed
on the annotated Seminole Agency Census of 1957 as Independent
Seminoles; and
(3) Are not members of an Indian tribe recognized by the Secretary
on the most recent list of such Indian tribes published in the Federal
Register.
(b) To qualify for enrollment, all persons must file application
forms with the Superintendent, Seminole Agency, Bureau of Indian
Affairs, 6075 Stirling Road, Hollywood, Florida 33024 by June 19, 1994.
An application filed after June 19, 1994 will be rejected for failure
to file on time regardless of whether the applicant otherwise meets the
qualifications for enrollment.
Sec. 67.5 Notices.
(a) The Director shall give notice to all Area Directors of the BIA
and all Superintendents within the jurisdiction of the Director of the
preparation of the roll for public display in BIA field offices.
Notices shall be placed for public display in community buildings,
tribal buildings and Indian centers.
(b) The Superintendent shall, on the basis of available residence
data, publish, and republish when advisable, notices of the preparation
of the roll in appropriate localities utilizing media suitable to the
circumstances.
(c) Notices shall advise of the preparation of the roll and the
relevant procedures to be followed, including the qualifications for
enrollment and the deadline for filing application forms to be eligible
for enrollment. The notices shall also state how and where application
forms may be obtained, as well as the name, address, and telephone
number of a person who may be contacted for further information.
Sec. 67.6 Application forms.
(a) Application forms to be filed by or for applicants for
enrollment shall be furnished by the Area Director, Superintendent, or
other designated persons upon written or oral request. Each person
furnishing application forms shall keep a record of the names of
individuals to whom forms are given, as well as the control numbers of
the forms and the date furnished. Instructions for completing and
filing application forms shall be furnished with each form. The form
shall indicate prominently the deadline date for filing application
forms.
(b) Among other information, each application form shall contain:
(1) Certification as to whether the application form is for a
natural child or an adopted child of the parent through whom
eligibility is claimed.
(2) If the application form is filed by a sponsor, the name and
address of the sponsor and the sponsor's relationship to the applicant.
(3) A control number for the purpose of keeping a record of forms
furnished to interested individuals.
(4) Certification that the information given on the application
form is true to the best of the knowledge and belief of the person
filing the application. Criminal penalties are provided by statute for
knowingly filing false information in such applications (18 U.S.C.
1001).
(5) An election by the applicant as to whether the applicant, if
determined to meet the qualifications for enrollment, wishes to share
in the per capita payment.
(c) Sponsors may file application forms on behalf of other persons,
but may not file elections to share in the per capita payment.
(1) The election to share in the per capita payment shall be made
as follows:
(i) If the applicant is a competent adult, the election shall be
made by the applicant.
(ii) If the applicant is not a competent adult, the election shall
be made by the applicant's legal guardian.
(iii) If the applicant is a minor, the election shall be made by
the applicant's parent or legal guardian.
(2) When an application is filed by a sponsor, the Superintendent
shall:
(i) Furnish the sponsor a copy of the application for forwarding to
the applicant or his/her guardian for completion of the election to
share in the per capita payment; and
(ii) Make a reasonable effort to furnish a copy of the application
directly to the applicant or his/her guardian for completion of the
election to share in the per capita payment.
(d) Every applicant or sponsor shall furnish the applicant's
mailing address on the application form. Thereafter, the applicant or
sponsor shall promptly notify the Superintendent of any change in
address, giving appropriate identification of the applicant. Otherwise,
the mailing address as stated on the application form shall be accepted
as the address of record for all purposes under the regulations in this
part.
Sec. 67.7 Filing of application forms.
(a) Application forms filed by mail must be postmarked no later
than midnight on the deadline date specified in Sec. 67.4(b). Where
there is no postmark date showing on the envelope or the postmark date
is illegible, application forms mailed from within the United States,
including Alaska and Hawaii, received more than 15 days after the
specified deadline, and application forms mailed from outside of the
United States received more than 30 days after the specified deadline
in the office of the Superintendent, will be rejected for failure to
file in time.
(b) Application forms filed by personal delivery must be received
in the office of the Superintendent no later than close of business on
the deadline date specified in Sec. 67.4(b).
(c) If the deadline date for filing application forms falls on a
Saturday, Sunday, legal holiday, or other nonbusiness day, the deadline
will be the next working day thereafter.
Sec. 67.8 Burden of proof.
The burden of proof rests upon the applicant to establish
eligibility for enrollment. Documentary evidence such as birth
certificates, death certificates, baptismal records, copies of probate
findings, or affidavits may be used to support claims of eligibility
for enrollment. Records of the BIA may be used to establish
eligibility.
Sec. 67.9 Action by Superintendent.
(a) The Superintendent shall notify each individual applicant or
sponsor, as applicable, upon receipt of an application. The
Superintendent shall consider each application and all documentation.
Upon determining an individual's eligibility, the Superintendent shall
notify the individual; the parent or guardian having legal custody of a
minor or incompetent adult; or the sponsor, as applicable.
(1) Written notification of the Superintendent's decision shall be
sent to the applicant by certified mail, for receipt by the addressee
only, return receipt requested.
(2) If a decision by the Superintendent is sent out of the United
States, registered mail will be used. If a certified or registered
notice is returned as ``Unclaimed,'' the Superintendent shall remail
the notice by regular mail together with an acknowledgment of receipt
form to be completed by the addressee and returned to the
Superintendent. If the acknowledgment of receipt is not returned,
computation of the period specified for changes in election and for
appeals shall begin on the date the notice was remailed. A certified or
registered notice returned for any reason other than ``Unclaimed'' need
not be remailed.
(3) If an individual files an application on behalf of more than
one person, one notice of eligibility or adverse action may be
addressed to the person who filed the applications. However, the notice
must list the name of each person to whom the notice is applicable.
Where an individual is represented by a sponsor, notification to the
sponsor of eligibility or adverse action shall be considered
notification to the individual.
(b) On the basis of an applicant's election with regard to whether
he or she wishes to share in the per capita payment, the
Superintendent's decision shall also state whether the applicant's name
will be included on the per capita payment roll. If no election has
been made by the applicant, parent, or legal guardian on the
application form, the individual applicant's name will not be included
on the per capita payment roll.
(1) The eligible individual will have 30 days from notification of
his or her eligibility in which to request a change in the election of
whether to share in the per capita payment. Computation of the 30-day
period will be in accordance with Sec. 67.9(a)(2) and Sec. 67.9(d).
Upon written request received within the 30-day period, to avoid
hardship or gross injustice, the Superintendent may grant an applicant
additional time, not to exceed 30 days, in which to submit a request
for a change in election.
(2) A change in the election of whether to share in the per capita
payment can only be made by competent adult applicants; by the legal
guardian of an incompetent adult; or, in the case of a minor, by the
minor's parent or legal guardian.
(c) If the Superintendent determines that an applicant is not
eligible for enrollment as an Independent Seminole Indian of Florida,
the Superintendent shall notify the applicant of the decision and shall
fully explain the reasons for the adverse action and explain the
rejected applicant's right to appeal to the Area Director. The decision
of the Area Director shall be final and conclusive.
(d) Except as provided in paragraph (a)(2) of this section, a
notice of adverse action concerning an individual's enrollment
eligibility or the inclusion or exclusion of an individual's name on
the per capita payment roll is considered to have been made, and
computation of the period for appeal shall begin on the earliest of the
following dates:
(1) Delivery date indicated on the return receipt;
(2) Date of acknowledgment of receipt;
(3) Date of personal delivery; or
(4) Date of return by the post office of an undelivered certified
or registered letter.
(e) To avoid hardship or gross injustice, the Area Director or the
Superintendent may waive technical deficiencies in application forms or
other submittals. Failure to file by the deadline date does not
constitute a technical deficiency.
Sec. 67.10 Appeals.
(a) Appeals from or on behalf of applicants who have been rejected
for enrollment must be in writing and must be filed pursuant to part 62
of this chapter. When the appeal is on behalf of more than one person,
the name of each person must be listed in the appeal.
(b) A copy of part 62 of this chapter shall be furnished with each
notice of adverse action. All sections of part 62 shall be applicable
to appeals filed under this part except 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.
(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.
Dated: November 19, 1993.
Ada E. Deer,
Assistant Secretary, Indian Affairs.
[FR Doc. 94-1275 Filed 1-19-94; 8:45 am]
BILLING CODE 4310-02-P