Title 25—Indians--Volume 1
PART 2—APPEALS FROM ADMINISTRATIVE DECISIONS
§ 2.100   What is the purpose of this part?
If you are adversely affected by certain decisions of a Bureau of Indian Affairs (Bureau) official, you can challenge (appeal) that decision to a higher authority within the Department of the Interior (Department) by following the procedures in this part. Except as otherwise provided in this part or in other applicable laws and regulations, you must exhaust the appeal mechanisms available under this part before you can seek review in a Federal district court under the Administrative Procedure Act (5 U.S.C. 704).
§ 2.101   What terms do I need to know?
Administrative record means all documents and materials that were considered directly or indirectly, or were presented for consideration, in the course of making the decision that is the subject of the appeal.
Adversely affected means the decision on appeal has caused or is likely to cause injury to a legally protected interest.
Agency means the Department of the Interior, inclusive of all its offices and bureaus.
Appeal means:
(1) A written request for administrative review of a decision-maker's decision or inaction that is claimed to adversely affect the interested party making the request; or
(2) The process you must follow when you seek administrative review of a decision-maker's decision or inaction.
Appellant means the person or entity who files an appeal.
AS-IA means the Assistant Secretary—Indian Affairs, Department of the Interior. AS-IA also means the Principal Deputy Assistant Secretary—Indian Affairs or other official delegated the authority of the AS-IA when the office of the AS-IA is vacant, when the AS-IA is unable to perform the functions of the office, or when the AS-IA is recused from the matter.
BIA means the Bureau of Indian Affairs.
BIE means the Bureau of Indian Education.
BTFA means the Bureau of Trust Funds Administration.
Days mean calendar days, unless otherwise provided. Days during which the agency is closed because of a lapse in appropriations do not count as days for purposes of calculating deadlines for actions by Federal officials under this part.
Decision means an agency action that permits, approves, or grants permission, requires compliance, or grants or denies requested relief.
Decision-maker means the Indian Affairs official whose decision or inaction is being appealed.
Effective means that the decision will be implemented by the Department.
Final agency action means a decision that represents the consummation of the agency's decision-making process and is subject to judicial review under 5 U.S.C. 704. Final agency actions are immediately effective unless the decision provides otherwise.
IBIA means the Interior Board of Indian Appeals within the Office of Hearings and Appeals.
IED means the Office of Indian Economic Development.
Indian Affairs means all offices and personnel subject to the authority of the AS-IA.
Interested party means a person or entity whose legally protected interests are adversely affected by the decision on appeal or may be adversely affected by the decision of the reviewing official.
Local Bureau Official (“LBO”) means the Superintendent, Field Representative, or other BIA official who serves as the primary point of contact between BIA and a Tribe or individual Indian.
Notice of Appeal (“NOA”) means a written document that an appellant files with the reviewing official and serves on the decision-maker and interested parties.
OIG means the Office of Indian Gaming.
OJS means the Office of Justice Services.
OSG means the Office of Self Governance.
Participant means the appellant, any interested party who files a response as provided for in § 2.209, and any Tribe that is an interested party.
Person means an individual human being or other entity.
Reviewing official means an Indian Affairs official who is authorized to review and issue decisions on appeals filed under this part, and the IBIA, unless otherwise provided in this part.
Trust Asset means trust lands, natural resources, trust funds, or other assets held by the Federal Government in trust for Indian Tribes and individual Indians.
We, us, and our, mean the officers and employees of Indian Affairs.
You (in the text of each section) and I (in the section headings) mean an interested party who is considering, pursuing, or participating in an administrative appeal as provided for in this part.
§ 2.102   What may I appeal under this part?
(a) Subject to the exceptions in this part and other applicable law or regulation, you may appeal:
(1) Any discrete, written decision made by a decision-maker that adversely affects you, including a determination by the decision-maker that she or he lacks either the duty or authority to take the action that you have requested; and
(2) Inaction by Indian Affairs officials by following the procedures in subpart F of this part.
(b) You may not appeal in the following circumstances.
(1) You may not separately appeal the issuance of component documents of the administrative record, including, but not limited to, appraisals or market studies, reports, studies, investigations, notices of impoundment or public sale, recommendations, or National Environmental Policy Act documents. The adequacy of these types of documents cannot be challenged unless and until an appealable decision is made in reliance upon these documents.
(2) You may not appeal an agency's notification to you that it is pursuing or is considering pursuing action against you in Federal district court, unless separate regulations in this title require you to follow administrative appeal procedures in accordance with this part or other regulations such as those listed in § 2.103 to appeal the notification. Such notifications include, but are not limited to, notices that could lead the agency to pursue actions for money damages against you, such as actions for trespass, ejectment, eviction, nuisance, conversion, or waste to Indian land under the Federal common law or statute.
(3) You may not appeal final agency actions (though you may be able to seek review in Federal district court).
(c) Any challenge to preliminary, procedural, or intermediate actions by a reviewing official must be submitted to the reviewing official prior to that official's issuing the decision. The reviewing official will address such challenges in the final decision. Such a challenge is not a separate appeal.
§ 2.103   Are all appeals subject to this part?
Not all appeals are subject to this part. Decisions by some Indian Affairs officials may be appealed to the Interior Board of Indian Appeals, subject to the regulations at 43 CFR part 4. Other regulations govern appeals of administrative decisions regarding certain topics. Table 1 to this section lists some decision topics that are subject to different appeals regulations, in whole or in part, and where to find those regulations.
Table 1 to § 2.103
§ 2.104   How will I know what decisions are appealable under this part?
(a) When an Indian Affairs official makes a decision that is subject to an appeal under this part, she or he will transmit the decision to interested parties by U.S. Mail or, upon request, by electronic mail. Unless the decision is immediately effective, and except for decisions that are subject to appeal to IBIA, the official will include the following notice of appeal rights at the end of the decision document:
This decision may be appealed by any person or entity who is adversely affected by the decision. Appeals must be submitted to the—[appropriate reviewing official]—at—[address, including email address]. The appeals process begins when you file with the reviewing official a notice of appeal, complying with the provisions of 25 CFR 2.205-2.207.
Deadline for Appeal. Your notice of appeal must be submitted in accordance with the provisions of 25 CFR 2.214 within 30 days of the date you receive notice of this decision pursuant to 25 CFR 2.203. If you do not file a timely appeal, you will have failed to exhaust administrative remedies as required by 25 CFR part 2. If no appeal is timely filed, this decision will become effective at the expiration of the appeal period. No extension of time may be granted for filing a notice of appeal.
Appeal Contents and Packaging. Your notice of appeal must comply with the requirements in 25 CFR 2.214. It must clearly identify the decision being appealed. If possible, attach a copy of this decision letter. The notice and the envelope in which it is mailed should be clearly labeled, “Notice of Appeal.” If electronic filing is available, “Notice of Appeal” must appear in the subject line of the email submission. Your notice of appeal must list the names and addresses of the interested parties known to you and certify that you have sent them and this office copies of the notice by any of the mechanisms permitted for transmitting the NOA to the BIA.
Where to Send Copies of Your Appeal.
[For appeals to IA officials, not IBIA]: In addition to sending your appeal to—[the reviewing official],—you must send a copy of your appeal to this office at the address on the letterhead—[if an email address is included in the letterhead, you may submit your appeals documents via email, with “Notice of Appeal” in the subject line of the email submission].
[For appeals to the IBIA]: If the reviewing official is the IBIA, you must also send a copy of your appeal to the AS-IA and to the Associate Solicitor, Division of Indian Affairs. If the reviewing official is the IBIA, your appeal will be governed by the IBIA's regulations, at 43 CFR part 4.
Assistance. If you can establish that you are an enrolled member of a federally recognized Tribe and you are not represented by an attorney, you may, within 10 days of receipt of this decision, request assistance from this office in the preparation of your appeal. Our assistance is limited to serving your filings on the interested parties and allowing limited access to government records and other documents in the possession of this office. We cannot obtain an attorney for you or act as your attorney on the merits of the appeal.
(b) If a decision-maker issues a decision that does not include notice of appeal rights, the decision-maker will provide written notice of appeal rights and the decision may be appealed as follows:
(1) If the decision-maker discovers within 30 days of issuing the decision that the decision did not include notice of appeal rights, then the decision-maker will provide written notice of appeal rights to interested parties, and inform them that they may appeal the decision within 30 days from the date of receipt of the notice. If no appeal is filed by the new deadline, the interested parties will have failed to exhaust administrative remedies as required by this part and the decision will become effective.
(2) If the decision-maker does not discover within 30 days of issuing the decision that the decision did not include notice of appeal rights and no administrative appeal is filed within 30 days of the issuance of the decision, then the decision becomes effective 31 days after it was issued.
(3) If the decision-maker discovers, more than 30 days but less than 365 days, after the date of the decision that the decision did not include notice of appeal rights, then the decision-maker will immediately notify the interested parties that the decision was issued without the requisite notice of appeal rights. If the decision has not actually been implemented, the decision-maker shall stay the implementation of the decision and reissue the decision with the appeal rights notice as provided in this section. If the decision has been implemented, the decision maker shall notify the interested parties of that fact, and notify them that they may file a challenge to the decision in Federal court, or pursue the administrative appeal process set out in this section.
§ 2.105   Who will receive notice of decisions that are appealable under this part?
Except as provided in other regulations governing specific types of decisions (see § 2.103), the decision-maker will transmit a copy of all appealable decisions to all known interested parties at the addresses the decision-maker has on file for them.
§ 2.106   How does this part comply with the Paperwork Reduction Act?
The information collected from the public under this part is cleared and covered by Office of Management and Budget (OMB) Control Number 1076-NEW. Please note that a Federal Agency may not conduct or sponsor, and you are not required to respond to, a collection of information unless it displays a currently valid OMB control number.
§ 2.200   Who may appeal a decision?
You have a right to appeal a decision made by an Indian Affairs official if you can show, through credible statements, that you are adversely affected by the decision.
§ 2.201   Do I need a lawyer in order to file a document in an appeal?
No. You may represent yourself. If you are represented by someone else, your representative must meet the standards established in 43 CFR part 1 and must provide documentation of his or her authority to act on your behalf.
§ 2.202   Who decides administrative appeals?
Except where a specific section of this part sets out a different appellate hierarchy, table 1 to this section identifies the reviewing officials for appeals under this part:
Table 1 to § 2.202
§ 2.203   How long do I have to file an appeal?
(a) You have 30 days after you receive a copy of the decision you are appealing to file a Notice of Appeal, except as provided in § 2.104(b).
(b) We will presume that you have received notice of the decision 10 days after the date that the decision was mailed to you, if the decision-maker mailed the document to the last address the decision-maker has on file for you.
(c) If the reviewing official receives proof that the document was delivered before the expiration of the 10-day period, you are presumed to have received notice on the date of delivery, and you have 30 days from that date to file an appeal.
§ 2.204   Will the reviewing official grant a request for an extension of time to file a Notice of Appeal?
No. No extensions of time to file a Notice of Appeal will be granted.
§ 2.205   How do I file a Notice of Appeal?
(a) To file a Notice of Appeal to an Indian Affairs official, you must submit the Notice of Appeal to the reviewing official identified in the decision document's notice of appeal rights, as prescribed in § 2.104. Your submission must comply with § 2.214.
(b) If you are appealing to the IBIA, you must comply with IBIA's regulations, set out at 43 CFR part 4.
§ 2.206   What must I include in my Notice of Appeal?
In addition to meeting the requirements of § 2.214, your Notice of Appeal must include an explanation of how you satisfy the requirements of standing set out in § 2.200 and a copy of the decision being appealed, if possible.
§ 2.207   Do I have to send the Notice of Appeal to anyone other than the reviewing official?
(a) Yes. You must provide copies of your Notice of Appeal to the decision-maker and all interested parties known to you. If you are an individual Indian and are not represented by an attorney, you may request that we make the copies for you and mail your appeal documents to all interested parties.
(b) If you are appealing to the IBIA, you must also send a copy of your Notice of Appeal to the AS-IA and to the Associate Solicitor for Indian Affairs at the same time you send the appeal to the IBIA.
§ 2.208   What must I file in addition to the Notice of Appeal?
No later than 10 days after filing your Notice of Appeal, you must submit to the reviewing official, the decision-maker, and interested parties a statement of reasons that:
(a) Explains why you believe the decision was wrong;
(b) Identifies relevant information or evidence you believe the decision-maker failed to consider;
(c) Describes the relief you seek;
(d) Provides all documentation you believe supports your arguments; and
(e) Complies with the requirements of § 2.214.
§ 2.209   Who may file a response to the statement of reasons?
Any interested party may file a response to the statement of reasons, thereby becoming a participant. The decision-maker may also file a response to the statement of reasons.
§ 2.210   How long does the decision-maker or an interested party have to file a response?
The decision-maker or an interested party has 30 days after receiving a copy of the statement of reasons to file a response.
§ 2.211   What must a response to the statement of reasons include?
(a) A response to a statement of reasons must comply with § 2.214. In addition, the response must:
(1) State when the interested party or decision-maker submitting the response received the statement of reasons;
(2) Explain how the interested party submitting the response is adversely affected by the decision being appealed or may be adversely affected by the reviewing official's decision; and
(3) Explain why the interested party or decision maker submitting the response believes the arguments made in the appellant's Notice of Appeal and statement of reasons are right or wrong.
(b) The response may also include statements and documents supporting the position of the interested party or decision-maker submitting.
§ 2.212   Will the reviewing official accept additional briefings?
(a) Yes. The appellant may file a reply with the reviewing official within 21 days of receiving a copy of any response brief.
(b) Any interested party may, within 10 days after receiving the table of contents of the administrative record (AR), request copies of some or all of the AR. Such party may submit a supplemental brief within 10 days after receiving the requested documents.
(c) Any interested party may ask the reviewing official for permission to file additional briefing. The reviewing official's decision on whether to grant the request is not appealable.
(d) No documents other than those specified in this part and those permitted by the reviewing official under paragraph (c) of this section may be filed.
(e) The reviewing official will not consider documents not timely filed.
§ 2.213   What role does the decision-maker have in the appeal process?
(a) The decision-maker is responsible for:
(1) Compiling the administrative record;
(2) Sending the administrative record to the reviewing official within 20 days of the decision-maker's receipt of the Notice of Appeal; and
(3) Making available a copy of the administrative record for review by interested parties. When the decision-maker transmits the administrative record to the reviewing official, the decision-maker shall transmit to the interested parties a copy of the table of contents of the administrative record. Interested parties may view the administrative record at the office of the decision-maker. Interested parties may request copies of all or part of the administrative record. Where reproduction and transmission of the administrative record imposes costs on BIA exceeding $50, BIA may charge the requestor for those costs. BIA shall not incur such costs without the requestor's approval. The decision-maker shall respond to requests for documents in the administrative record within 30 days of receipt of the request, either by providing the requested documents or identifying a date by which the documents shall be provided. The decision-maker shall redact the documents provided to the requestor as required by law ( e.g., the Privacy Act). The decision-maker may withhold information in the administrative record, invoking privileges available in civil litigation; such withholding being subject to judicial review. Provision of documents in the administrative record to an interested party under this part is not governed by the Freedom of Information Act. Failure of a decision-maker to respond to a request for documents under this section may be appealed as provided in subpart F of this part.
(b) If a decision-maker believes that a compacting or contracting Tribe possesses Federal records that are relevant to the analysis of the appeal, the decision-maker may request that the Tribe produce the documents. Within two weeks of receiving the decision-maker's request, the Tribe shall either provide the requested documents to the decision-maker or explain why it is not providing the documents. This section does not apply to Tribal records. See 25 U.S.C. 5329(b).
(c) The decision-maker may file a response to the statement of reasons.
§ 2.214   What requirements apply to my submission of documents?
Except where a section in this part (or 43 CFR part 4 with respect to submissions to the IBIA) sets out other requirements, you must comply with the following provisions:
(a) Information required in every submission. (1) The submitter's contact information, consisting of name, mailing address, telephone number, and email address if any; or the name, mailing address, telephone number, and email address of the submitter's representative;
(2) A certificate of service by the submitter that the submission was served on all interested parties known to the submitter, a list of parties served, and the date and method of service; and
(3) The signature of the interested party or his or her representative.
(b) Filing documents. A document is properly filed with an agency official by:
(1) Personal delivery, either hand delivery by an interested party or via private mail carrier, during regular business hours to the person designated to receive mail in the immediate office of the official;
(2) United States mail to the facility officially designated for receipt of mail addressed to the official. The document is considered filed by mail on the date that it is postmarked; and
(3) Electronic mail (email) is permissible only in accordance with the provisions in paragraph (i) of this section.
(c) Service generally. A copy of each document filed in a proceeding under this part must be served by the filing party on the relevant agency official(s) and all other known interested parties. If an interested party is represented by an attorney, service of any document shall be made upon such attorney. Where an interested party is represented by more than one attorney, service upon one of the attorneys shall be sufficient.
(d) Record address. Every person who files a document in an appeal shall, at the time of the initial filing in the matter, provide his or her contact information. Such person must promptly inform the decision-maker or reviewing official of any change in address. Any successors in interest of such person shall promptly inform the decision-maker or reviewing official of his or her interest in the matter and provide contact information. Agency officials and other parties to an appeal shall have fulfilled their service requirement by transmitting documents to a party's last known address.
(e) Computation of time for filing and service. Documents must be filed within the deadlines established in this part (or by 43 CFR part 4 for filings submitted to the IBIA), or as established by Department officials in a particular matter. Except as otherwise provided by law, in computing any period of time prescribed for filing and serving a document, the day upon which the decision or document to be appealed from or answered was served, or the day of any other event after which the designated period of time begins to run, is not included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday, Federal legal holiday, or other day on which the office to which the document is addressed is not conducting business, in which event the period runs until the end of the next day on which the office to which the document is addressed is conducting business. When the time prescribed or allowed is 7 days or less, intermediate Saturdays, Sundays, Federal legal holidays, and other nonbusiness days shall be excluded in the computation.
(f) Extensions of time. (1) The deadline for filing and serving any document may be extended by the agency official before whom the proceeding is pending, except that the deadline for filing a Notice of Appeal may not be extended.
(2) A request for an extension of time must be filed within the time allowed for the filing or serving of the document.
(3) A request for extension of time must be filed with the same office as the document that is the subject of the request.
(g) Formatting. All submissions, except exhibits, must be typed in 12-point font, (double-spaced) using a standard 8 1/2 - by 11-inch word processing format, except that a document submitted by an interested party who is not represented by an attorney may be hand-written. An agency official may decline to consider an illegible hand-written submission. An agency official who declines to consider a hand-written submission shall promptly notify the submitter of the decision not to consider the submission.
(h) Page limits for particular filings are set out in the sections addressing those filings. Attachments and exhibits not drafted by or for the submitter do not count toward the page limit.
(i) Submitting and serving documents by email. Submitting documents by email to an agency official is only permitted when the receiving official has notified the known interested parties that email submissions are acceptable. Documents may only be served via email on interested parties who have stated, in writing, their willingness to accept service by email. No single email submission may exceed 10 megabytes (MB). Submissions may be divided into separate emails for purposes of complying with this requirement. Filings submitted by email shall be in PDF format. Email submissions that arrive at the agency official's office after 5:00 p.m. shall be deemed to have arrived on the next work day.
(j) Non-compliant submissions. An agency official may decline to consider a submission that does not comply with the requirements in this section, or take other action she/he deems appropriate. A non-compliant submission is nonetheless a Federal record, and must be preserved as other Federal records.
§ 2.300   When is a decision effective?
(a) Agency decisions that are subject to further administrative appeal become effective when the appeal period expires without an appeal being filed, except as provided elsewhere in this chapter.
(b) When an agency decision is effective pursuant to paragraph (c) of this section or § 2.714, the administrative appeal will proceed unless an interested party challenges the agency decision in Federal court.
(c) Agency decisions that are subject to further administrative appeal and for which an appeal is timely filed may be made immediately effective by the reviewing official based on public safety, Indian education safety, protection of trust resources, or other public exigency.
(1) A decision-maker whose decision has been appealed may ask the reviewing official to make the appealed decision immediately effective or the reviewing official may make the appealed decision immediately effective on his or her own initiative.
(2) A reviewing official's decision to make an appealed decision immediately effective must explain why public safety, Indian education safety, protection of trust resources, or other public exigency justifies making the decision immediately effective. Any challenge to the decision to put an appealed decision into immediate effect shall be incorporated into the ongoing appeal.
(3) A decision by a reviewing official (other than the IBIA) to place an appealed decision into immediate effect must be in writing and include the following notice of appeal rights:
As explained above, based on concerns about public safety, Indian education safety, protection of trust resources, or other exigency, I have placed the challenged decision into immediate effect, as authorized by 25 CFR 2.300. I will continue with my review of the matter on appeal unless and until an interested party files suit in federal court challenging the agency decision.
§ 2.301   When is a decision a final agency action?
An agency decision that is not subject to administrative appeal is a final agency action and immediately effective when issued unless the decision provides otherwise.
§ 2.400   When may the reviewing official require an appeal bond?
(a) Any interested party who may suffer a financial loss or damage to Indian Trust Assets as a result of an appeal may ask the reviewing official to require the appellant to post an appeal bond.
(b) The reviewing official may decide on his or her own initiative to require an appeal bond in accordance with this subpart.
§ 2.401   How will the reviewing official determine whether to require an appeal bond?
The reviewing official may require an appeal bond if the party requesting the appeal bond can demonstrate that the delay caused by the appeal may result in a measurable and substantial financial loss or damage to Indian Trust Assets. The amount of the appeal bond will be commensurate with the estimated financial loss or damage to Indian Trust Assets.
§ 2.402   What form of appeal bond will the reviewing official accept?
The reviewing official will only accept an appeal bond that has a market value at least equal to the total bond amount in one, or a combination of, the following forms.
(a) Negotiable U.S. Treasury securities, accompanied by a statement granting the AS-IA full authority to sell the securities and direct the proceeds to the party who was harmed by the appellant's unsuccessful appeal.
(b) Certificates of deposit that indicate on their face that AS-IA approval is required prior to redemption by any party.
(c) An irrevocable letter of credit issued by a federally insured financial institution and made payable to the Office of the AS-IA. The letter of credit must have an initial expiration date of not less than two years from the date of issuance and be automatically renewable for at least one year.
(d) A surety bond issued by a company approved by the U.S. Department of the Treasury.
§ 2.403   May I appeal the decision whether to require an appeal bond?
No. The reviewing official's decision whether to require an appeal bond is not appealable.
§ 2.404   What will happen to my appeal if I fail to post a required appeal bond?
If you are required to post a bond and fail to do so within the time allowed by the reviewing official to post the bond, the reviewing official will dismiss your appeal.
§ 2.405   How will the reviewing official notify interested parties of the decision on a request for an appeals bond?
When the reviewing official decides whether to require an appeal bond, she or he will provide the interested parties with written notice of the decision
§ 2.500   May an appeal be consolidated with other appeals?
Yes. The reviewing official may, either on his or her own initiative or upon request by the decision-maker or interested party, consolidate identical or similar appeals filed by you and others or consolidate multiple appeals that you file that also contain identical or similar issues.
§ 2.501   May an appealed decision be partially implemented?
Yes. The reviewing official may identify any parts of a decision-maker's decision that have not been appealed, to allow the decision-maker to implement those parts of the decision. The reviewing official will notify interested parties of a determination to implement unchallenged components of the decision-maker's decision. An interested party who disagrees with the reviewing official's determination may seek reconsideration by the reviewing official. A request for reconsideration must be filed within 15 days of issuance of the determination.
§ 2.502   May I withdraw my appeal once it has been filed?
Yes. You may withdraw your appeal at any time before the reviewing official issues a decision. To withdraw an appeal, you must write to the reviewing official and all participants stating that you want to withdraw your appeal. If you withdraw your appeal, it will be dismissed by the reviewing official. While the dismissal of a withdrawn appeal is without prejudice, the appeals time frame set out in this part will be unaffected by a withdrawn appeal. Therefore, any refiling of a withdrawn appeal must be within the original filing deadline established pursuant to § 2.104.
§ 2.503   May an appeal be dismissed without a decision on the merits?
Yes, the reviewing official may dismiss an appeal without a decision on the merits when:
(a) You are late in filing your appeal;
(b) You lack standing because you do not meet the requirements of § 2.200 for bringing an appeal;
(c) You have withdrawn the appeal;
(d) You have failed to pay a required appeal bond;
(e) The reviewing official lacks the authority to grant the requested relief;
(f) If you are represented and your representative does not meet the standards established in 43 CFR part 1 related to eligibility to practice before the Department, and you have failed to substitute yourself or an eligible representative after being given an opportunity to do so; or
(g) The reviewing official determines there are other circumstances that warrant a dismissal and explains those circumstances in the dismissal order.
§ 2.504   What information will the reviewing official consider?
(a) The reviewing official will consider:
(1) The administrative record for the decision, prepared by the decision-maker under § 2.213;
(2) All relevant documents submitted by the decision-maker and participants that were filed in accordance with applicable deadlines; and
(3) Laws, regulations, Secretarial Orders, Solicitor's Opinions, policies, implementing guidance, and prior judicial and administrative decisions that are relevant to the appeal.
(b) If the reviewing official considers documentation that was not included in the administrative record, the reviewing official will:
(1) Provide a copy of that documentation to the decision-maker and interested parties; and
(2) Establish a schedule for the decision-maker and interested parties to review and comment on the documentation.
§ 2.505   When will the reviewing official issue a decision on an appeal?
(a) The reviewing official (other than the IBIA) will issue a written decision, including the basis for the decision, within 90 days after the latest of:
(1) The filing of the statement of reasons;
(2) The filing of any responses, replies, or supplemental briefs under §§ 2.209 through 2.212; or
(3) The filing of any comments on additional material under § 2.504(b).
(b) A reviewing official (other than the IBIA) may, for good cause and with notice to the decision-maker and participants, extend the deadline for the official's decision one time by no more than 90 days.
§ 2.506   How does the reviewing official notify the appellant and other interested parties of a decision?
The reviewing official will send the decision to the decision-maker and interested parties.
§ 2.507   How do I appeal a reviewing official's decision?
(a) To appeal a reviewing official's decision that is not a final agency action, you must file your appeal in accordance with the instructions for appeal contained in the decision.
(b) The decision will include instructions that briefly describe how to appeal the decision, to whom the appeal should be directed, and the deadline for filing an appeal, and will refer interested parties to the regulations governing the appeal.
(c) If you are appealing to the IBIA, you must comply with IBIA's regulations, set out at 43 CFR part 4.
(d) Except where a specific section of this part sets out a different appellate hierarchy, table 1 to this paragraph (d) indicates the official to whom subsequent appeals should be addressed.
Table 1 to Paragraph ( d )
§ 2.508   May the AS-IA take jurisdiction over an appeal to the IBIA?
Yes. The AS-IA has 40 days from the date on which the IBIA received your Notice of Appeal to take jurisdiction from the IBIA. The AS-IA will notify the IBIA in writing of the assumption of jurisdiction and request the administrative record of the appeal. At any time in the 40 days, the AS-IA may notify the IBIA that she or he is not going to take jurisdiction over an appeal, at which point the IBIA will assign a docket number to the appeal under its regulations in 43 CFR part 4. If the IBIA does not receive written notice from the AS-IA within the 40-day period of the AS-IA's intent to take jurisdiction over the appeal, the IBIA will assign a docket number to your appeal.
§ 2.509   May I ask the AS-IA to take jurisdiction over my appeal?
No. The AS-IA will not consider a request from any interested party to take jurisdiction over an appeal.
§ 2.510   How will the AS-IA handle my appeal?
If the AS-IA takes jurisdiction over your appeal, or if an appeal is made to the AS-IA in accordance with table 1 to paragraph (d) in § 2.507, the following procedures shall apply:
(a) Within 10 days of receipt of an appeal, or of assumption of jurisdiction over an appeal to the IBIA, the AS-IA shall transmit to the official who issued the decision being appealed and all known interested parties a notice that will include information on when and how to file briefs, access to the administrative record, and may include instructions for filing briefs via email.
(b) Briefs shall comply with § 2.214, and be submitted as follows, unless the AS-IA specifies otherwise:
(1) Initial briefs are invited from the appellant, all interested parties, and the official whose decision is on appeal. Initial briefs may not exceed 30 pages and shall be due within 21 days of the date of the AS-IA's notice. Initial briefs must include certification of service on the reviewing official and all other interested parties identified in the AS-IA's initial notice to interested parties;
(2) Answering briefs shall be due within 35 days of the date of the AS-IA's notice. Answering briefs shall not exceed 15 pages; and
(3) For good cause shown, the AS-IA may extend deadlines, may allow handwritten briefs, may provide for different page limits, and may permit submission of reply briefs.
(c) The AS-IA shall render a decision on the appeal within 60 days of the end of briefing. The AS-IA may, for good cause and with notice to the participants, extend the deadline for issuing a decision by no more than 60 days.
(d) The AS-IA may summarily affirm the decision of the official whose decision is on appeal based on the record before the official whose decision is on appeal.
(e) The AS-IA may delegate to the Principal Deputy Assistant Secretary—Indian Affairs the authority and responsibility for rendering a final agency decision on an appeal over which the AS-IA is exercising jurisdiction.
§ 2.511   May the Secretary decide an appeal?
Yes. Nothing in this part will be construed as affecting the Secretary's authority to take jurisdiction over an appeal as set out in 43 CFR 4.5(a).
§ 2.512   May the Director of the Office of Hearings and Appeals take jurisdiction over a matter?
Yes. Nothing in this part will be construed as affecting the authority vested in the Director of the Office of Hearings and Appeals to take jurisdiction over matters in front of the IBIA, as provided in 43 CFR 4.5(b).
§ 2.600   May I compel an agency official to take action?
(a) Yes. If a decision-maker fails to take action on a written request for action that you believe the decision-maker is required to take, you may make the decision-maker's inaction the subject of appeal.
(b) Before filing an appeal with the next official in the decision-maker's chain of command, you must:
(1) Send a written request to the decision-maker, asking that he or she take the action originally asked of him or her;
(2) Identify the statute, regulation, or other source of law that you believe requires the decision-maker to take the action being requested;
(3) Describe the interest adversely affected by the decision-maker's inaction, including a description of the loss, impairment or impediment of such interest caused by the inaction; and
(4) State that, unless the decision-maker either takes action on the written request within 15 days of receipt of your request, or establishes a date by which a decision will be made, you will appeal the decision-maker's inaction in accordance with this subpart.
(c) You must include a copy of your original request to the decision-maker, or other documentation establishing the date and nature of the original request.
§ 2.601   When must a decision-maker respond to a request to act?
A decision-maker receiving a request as specified in § 2.600 has 15 days from receiving the request to issue a written response. The response may be a decision, a procedural order that will further the decision-making process, or a written notice that a decision will be rendered by a date no later than 60 days from the date of the request.
§ 2.602   What may I do if the decision-maker fails to respond?
If the decision-maker does not respond as provided for in § 2.601, you may appeal the decision-maker's continued inaction to the next official in the decision-maker's chain of command. For purposes of this subpart:
(a) BIA's chain of command is as follows:
(1) Local Bureau Official;
(2) Regional Director (find addresses on the Indian Affairs website, currently at https://www.bia.gov/regional-offices );
(3) Director, Bureau of Indian Affairs (1849 C Street NW, MS 4606, Washington, DC 20240); and
(4) Assistant Secretary—Indian Affairs (1849 C Street NW, MS 4660, Washington, DC 20240).
(b) BIE's chain of command is as follows:
(1) Principal of Bureau-operated school;
(2) Education Program Administrator;
(3) Associate Deputy Director, BIE;
(4) Director, BIE; and
(5) AS-IA.
(c) The Office of Justice Services' chain of command is as follows:
(1) Deputy Director BIA, Office of Justice Services;
(2) Director, BIA; and
(3) AS-IA
(d) You may appeal inaction by an official within the Office of the AS-IA to the AS-IA.
§ 2.603   How do I submit an appeal of inaction?
You may appeal the inaction of a decision-maker by sending a written “appeal from inaction of an official” to the next official in the decision-maker's chain of command. You must enclose a copy of the original request for decision to which the decision-maker has not responded and a copy of the request for decision that you sent to the decision-maker pursuant to § 2.600. If filing by email is permitted, “Appeal of Inaction” must appear in the subject line of the email submission.
§ 2.604   What will the next official in the decision-maker's chain of command do in response to my appeal?
An official who receives an appeal from the inaction of a decision-maker that complies with the requirements of this subpart will, within 15 days of receiving the appeal, formally direct the decision-maker to respond within 15 days of the decision-maker's receipt of the official direction. The official will send to all interested parties a copy of his or her instructions to the decision-maker.
§ 2.605   May I appeal continued inaction by the decision-maker or the next official in the decision-maker's chain of command?
Yes. If the official fails to timely direct the decision-maker to respond to the request for decision, or if the decision-maker fails to respond within the time frame identified by the official pursuant to § 2.604, you may appeal the continued inaction by either agency official to the next highest officer in the chain of command above both agency officials. Your appeal must be submitted as provided for in §§ 2.602 and 2.603. The official will respond as provided for in § 2.604.
§ 2.606   May I appeal inaction by a reviewing official on an appeal from a decision?
(a) Yes. If a reviewing official fails to take action on the appeal within the timeframes established in § 2.505, any interested party may appeal the reviewing official's inaction as provided for in this subpart.
(b) Inaction by the IBIA or by the AS-IA is not subject to appeal under this part.
§ 2.607   What happens if no official responds to my requests under this subpart?
If you exhaust all the provisions of this subpart and the Department has still not taken action on your request, the Department's inaction may be subject to judicial review pursuant to 5 U.S.C. 706(1).
§ 2.700   What is the purpose of this subpart?
The purpose of this subpart is to expedite administrative review of a Bureau decision to recognize, or to decline to recognize, a Tribal representative. Provisions in subparts A through F of this part also apply, except that, if a provision in this subpart conflicts with a provision in subparts A through F of this part, the provision in this subpart will govern.
§ 2.701   May a Local Bureau Official's decision to recognize, or decline to recognize, a Tribal representative be appealed?
Yes. A written decision by the LBO to recognize or decline to recognize a Tribal representative is appealable.
§ 2.702   How will I know what decisions are appealable under this subpart?
When an LBO issues a Tribal representative recognition decision, the official will include the following notice of appeal rights at the end of the decision document:
YOU HAVE 10 DAYS TO APPEAL THIS DECISION.
This decision may be appealed to the —[appropriate reviewing official. If the LBO is a Regional Director, the reviewing official is the Director of the BIA]—at—[address, including email address if filing by email is permitted].
Deadline for Appeal. Your notice of appeal must be submitted as provided for in 25 CFR 2.214 within 10 (ten) days of the date you receive notice of this decision. Your notice of appeal must explain how you satisfy the standing requirements in 25 CFR 2.200. If you do not file a timely appeal, you will have failed to exhaust administrative remedies required by these regulations. If no appeal is timely filed, this decision will become effective at the expiration of the appeal period. No extension of time may be granted for filing a notice of appeal.
§ 2.703   How do I file a Notice of Appeal of a Tribal representative recognition decision?
To file a Notice of Appeal, you must submit, as provided in § 2.214, the Notice of Appeal to the reviewing official identified in the decision document's notice of appeal rights, as prescribed in § 2.702.
§ 2.704   How long do I have to file an appeal of a Tribal representative recognition decision?
You have 10 days after you receive the Tribal representative recognition decision to file a Notice of Appeal.
§ 2.705   Is there anything else I must file?
Yes. You must file a statement of reasons setting out your arguments in support of your appeal, and include any supporting documentation you wish to present to the reviewing official. Your statement of reasons must comply with the requirements set out in § 2.214.
§ 2.706   When must I file my statement of reasons?
You must submit your statement of reasons to the reviewing official and interested parties no later than 10 days after filing your Notice of Appeal.
§ 2.707   May the LBO and interested parties file a response to the statement of reasons?
Yes. Any interested party, as well as the LBO, may file a response to the statement of reasons, thereby becoming a participant.
§ 2.708   How long do interested parties have to file a response?
(a) The LBO and any interested party have 10 days after receiving a copy of the statement of reasons to file a response, which must be served on the appellant, the LBO and other interested parties.
(b) For good cause shown, the reviewing official may allow the appellant to file a reply brief.
§ 2.709   What will the LBO do in response to my appeal?
Upon receipt of your Notice of Appeal, the LBO must transmit, within 15 days, the administrative record to the reviewing official and transmit your Notice of Appeal to the AS-IA.
§ 2.710   When will the reviewing official decide a Tribal representative recognition appeal?
The reviewing official will issue a written decision, including the basis for the decision, within 30 days after the latest of the filing of your statement of reasons or interested parties' response.
§ 2.711   May the decision deadline be extended?
Yes. A reviewing official may, for good cause and with notice to the interested parties and the LBO, extend the deadline for the reviewing official's decision one time, for no more than an additional 30 days.
§ 2.712   May the AS-IA take jurisdiction over the appeal?
Yes. The AS-IA may take jurisdiction over the appeal at any time before the reviewing official issues a final decision.
§ 2.713   May I ask the AS-IA to take jurisdiction over the appeal?
No. The AS-IA will not consider a request from any interested party to take jurisdiction over the appeal.
§ 2.714   May the reviewing official's decision on Tribal representative recognition be appealed?
Yes. The reviewing official's decision is immediately effective, but not final for the Department. Therefore, any participant may appeal the reviewing official's decision as provided for in this part, or pursue judicial review in Federal court. Notwithstanding any other regulation, the reviewing official's Tribal representative recognition decision shall remain in effect and binding on the Department unless and until the reviewing official's decision is reversed by superior agency authority or reversed or stayed by order of a Federal court.
§ 2.800   What is the purpose of this subpart?
(a) The purpose of this subpart is to allow an account holder to dispute the accuracy of the activity contained within a Statement of Performance.
(b) The appeals process in this subpart is summarized as follows:
(1) Account holders receive a Statement of Performance at least each quarter. In limited circumstances, account holders may only receive a Statement of Performance annually based upon activity.
(2) An account holder may submit an Objection to the Statement of Performance (“Objection”) to the decision-maker.
(3) The decision-maker will render a Decision on the Objection to the Statement of Performance (“Decision”).
(4) An account holder may submit an Appeal of the Decision on the Objection to the Statement of Performance (“Appeal”) to the Director, BTFA.
(5) The Director, BTFA will render the BTFA's ruling on the account holder's appeal.
(6) An account holder may appeal the BTFA's ruling to the AS-IA.
(7) The AS-IA's decision on the account holder's appeal is a final agency action.
§ 2.801   What terms do I need to know for this subpart?
Account holder means a Tribe or a person who owns the funds in a Tribal or Individual Indian Money (IIM) account that is maintained by the Secretary.
Appeal of the Decision on the Objection to the Statement of Performance (“Appeal”) means your appeal of the decision-maker's decision.
Basis of Objection to the Statement of Performance (“Basis of Objection”) means the documentation you submit supporting your Objection to the Statement of Performance.
BTFA means the Bureau of Trust Funds Administration.
BTFA's Ruling means the ruling issued by Director, BTFA on your Appeal of the decision-maker's decision.
Decision on the Objection to the Statement of Performance (“Decision”) means the decision-maker's decision on your Objection to the Statement of Performance.
Decision-maker means the Director, Office of Trust Analysis and Research within the Bureau of Trust Funds Administration who reviews your Objection to the Statement of Performance.
Objection to the Statement of Performance (“Objection”) means the document you submit to the decision-maker, alleging errors in your Statement of Performance.
Reviewing official means the Director, BTFA.
Statement of Performance (SOP) means the document that is issued to each account holder that identifies:
(1) The source, type, and status of the funds;
(2) The beginning balance;
(3) The gains and losses;
(4) Receipts and disbursements; and
(5) The ending balance.
§ 2.802   What must I do if I want to challenge the accuracy of activity within a Statement of Performance?
If you want to challenge the accuracy of activity within a Statement of Performance, you must submit an Objection to the Statement of Performance within 60 calendar days of the statement date.
§ 2.803   Is every account holder allowed to challenge the accuracy of activity within a Statement of Performance?
Yes. However, if a Tribe has entered into a settlement with the United States and that settlement contains language concerning the challenge of a statement of performance, the language in the settlement agreement will control.
§ 2.804   May I challenge the underlying action that generated the proceeds deposited into my account under this subpart?
No. This subpart is solely for the purpose of challenging the accuracy of the activity within the SOP. If you want to challenge the underlying action that generated the proceeds deposited into your trust account, you must contact the BIA agency responsible for the action.
§ 2.805   May I challenge anything other than the activity in the account under this subpart?
No. The purpose of this subpart is to provide a method for account holders to dispute the activity in the account.
§ 2.806   What must my Objection to the Statement of Performance contain?
Your Objection to the Statement of Performance must be in writing and contain all of the following:
(a) Your name, address, and telephone number;
(b) The statement date of the specific Statement of Performance that you are challenging;
(c) A copy of the Statement of Performance being challenged; and
(d) The Basis of Objection.
§ 2.807   What must my Basis of Objection contain?
Your Basis of Objection must be in writing and contain:
(a) A statement that details all of the errors or omissions that you believe exist in the Statement of Performance, with as much explanatory detail as possible;
(b) A statement describing the corrective action that you believe BTFA should take; and
(c) All information that you believe relates to the error(s) or omission(s) in the specific Statement of Performance.
§ 2.808   To whom must I submit my Objection to the Statement of Performance?
(a) You must submit your Objection to the Statement of Performance to the decision-maker at: U.S. Department of the Interior, Bureau of Trust Funds Administration, Attn: Director, Office of Trust Analysis and Research, 1849 C Street NW, Washington, DC 20240.
(b) Your submission must comply with the provisions of § 2.214.
§ 2.809   When must I submit my Objection to the Statement of Performance?
You must submit your Objection to the Statement of Performance within 60 calendar days of the statement date on the Statement of Performance you are challenging.
§ 2.810   Will the decision-maker acknowledge receipt of my Objection to the Statement of Performance?
Yes. The decision-maker will provide an acknowledgement of receipt of your Objection to the Statement of Performance within 10 calendar days of receipt in the form of a letter that will be mailed to the address you provided in your Objection.
§ 2.811   May I request an extension of time to submit my Objection to the Statement of Performance?
Yes. Within 60 calendar days of the statement date on your Statement of Performance, you may request an extension of time, submitted in compliance with the provisions of § 2.214, from the decision-maker to submit your Objection to the Statement of Performance. The decision-maker may grant one 30-day extension of time in which to submit your Objection to the Statement of Performance.
§ 2.812   May I appeal the denial of my request for an extension of time?
No. The denial of an extension of time to submit the Objection to the Statement of Performance is not appealable.
§ 2.813   If I fail to submit either an Objection to the Statement of Performance or the Basis of Objection within the applicable deadlines, what is the consequence?
If you fail to submit either the Objection to the Statement of Performance or the Basis of Objection within the applicable deadlines:
(a) The Statement of Performance at issue will be deemed accurate and complete for all purposes;
(b) You will have waived your right to invoke the remainder of the review and appeals process as to that Statement of Performance; and
(c) You will have failed to exhaust the administrative remedies available within the Department.
§ 2.814   How long will the decision-maker have to issue a Decision on my Objection to the Statement of Performance?
The decision-maker will have 30 calendar days from the date of receipt of your Basis of Objection to the Statement of Performance to issue a Decision on your Objection to the Statement of Performance. If your Basis of Objection is not received when you submit your Objection to the Statement of Performance and an extension of time was not asked for and granted, the decision-maker will dismiss your Objection to the Statement of Performance.
§ 2.815   What information will the Decision on my Objection to the Statement of Performance contain?
The Decision on your Objection to the Statement of Performance will contain an explanation as to whether the decision-maker agrees or disagrees with your Objection to the Statement of Performance. If the decision-maker agrees with your Objection to the Statement of Performance, a correction will be made and reflected on your Statement of Performance. If the decision-maker disagrees with your Objection to the Statement of Performance, the Decision will provide information about your right to appeal the Decision.
§ 2.816   May I appeal the Decision on my Objection to the Statement of Performance?
Yes. The Decision issued by the decision-maker is appealable to the reviewing official, who is the Director, BTFA.
§ 2.817   What must my Appeal of the Decision on the Objection to the Statement of Performance contain?
Your Appeal must comply with the instructions in § 2.214 and must include the statement date of the specific Statement of Performance that you are appealing.
§ 2.818   To whom must I submit my Appeal of a Decision on my Objection to the Statement of Performance?
You must submit your Appeal, as provided in § 2.214, to the reviewing official, at: U.S. Department of the Interior, Bureau of Trust Funds Administration, Attn: Director, BTFA, 1849 C Street NW, Washington, DC 20240.
§ 2.819   When must my Appeal be filed?
You must file your Appeal within 30 calendar days of the date that the decision-maker issued the Decision.
§ 2.820   May I submit any other documents in support of my Appeal?
No. You may not submit any other documents in support of your Appeal. The reviewing official may only consider the documents that were reviewed by the decision-maker.
§ 2.821   May I request an extension of time to submit my Appeal?
No. You must submit the Appeal within 30 calendar days of the issuance of the Decision. The reviewing official will not grant an extension of time to submit your appeal of a Decision.
§ 2.822   What happens if I do not submit my Appeal within the 30-day deadline?
If you fail to submit your Appeal within the 30-day deadline:
(a) The decision-maker's decision will be effective;
(b) The Statement of Performance at issue will be deemed accurate and complete;
(c) You will have waived your right to invoke the remainder of the review and appeals process as to that same Statement of Performance; and
(d) You will have failed to exhaust the administrative remedies available within the Department.
§ 2.823   When will the reviewing official issue the BTFA's ruling?
The reviewing official will issue the BTFA's ruling within 30 calendar days of receipt of your Appeal of a Decision on your Objection to the Statement of Performance. The ruling will provide information about your right to further appeal.
§ 2.824   May I appeal the BTFA's ruling?
Yes. The BTFA's ruling may be appealed to the AS-IA. The procedures, requirements, and deadlines set out in §§ 2.816, 2.817, and 2.819 through 2.821 apply to appeals to the AS-IA under this subpart. Submit your Appeal to: U.S. Department of the Interior, Office of the Assistant Secretary—Indian Affairs, MS 4660, 1849 C Street NW, Washington, DC 20240, as provided in § 2.214.
§ 2.825   When does the Statement of Performance or a Decision become final?
(a) Statements of Performance, and decisions rendered by Department officials under this subpart, are final when the deadline for submitting an Objection to the Statement of Performance or an Appeal has expired and the account holder has not submitted an Objection to the Statement of Performance or an Appeal.
(b) A decision rendered by the AS-IA is a final agency action.
§ 2.900   Is there a procedure other than a formal appeal for resolving disputes?
Yes. We strongly encourage parties to work together to reach a consensual resolution of disputes whenever possible. Use of an alternative approach to dispute resolution can save time and money, produce more durable and creative solutions, and foster improved relationships. It may be appropriate and beneficial to consider the use of alternative dispute resolution (ADR) processes and techniques at any stage in a dispute. The parties may request information from the decision-maker on the use of an ADR process.
§ 2.901   How do I request alternative dispute resolution?
If you are interested in pursuing alternative dispute resolution, you may contact the reviewing official to make a request to use ADR for a particular issue or dispute.
§ 2.902   When do I initiate alternative dispute resolution?
We will consider a request to use alternative dispute resolution at any time. If you file a Notice of Appeal, you may request the opportunity to use a consensual form of dispute resolution.
§ 2.903   What will Indian Affairs do if I request alternative dispute resolution?
If all interested parties concur, the reviewing official may stay (discontinue consideration of) the appeal while the parties pursue ADR. Where the parties agree to use ADR, Indian Affairs and other interested parties may seek assistance from the Department of the Interior's Office of Collaborative Action and Dispute Resolution (CADR). CADR can assist in planning and facilitating an effective collaboration or dispute resolution process. Parties are encouraged to consider best practices for engagement, including but not limited to, the use of neutral facilitation and other collaborative problem-solving approaches to promote effective dialogue and conflict resolution.