7068 Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations

DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Parts 15, 114, 115, 162 and 166

RIN 1076–AE00

Trust Management Reform: Leasing/

Permitting, Grazing, Probate and

Funds Held in Trust

AGENCY: Bureau of Indian Affairs.

ACTION: Final Rule.

SUMMARY: The Department of the

Interior, Bureau of Indian Affairs (BIA),

revises its regulations in the areas of

probate, funds held in trust for Indian

tribes and individual Indians, leasing/

permitting, and grazing. These revisions

are meant to further fulfill the

Secretary’s fiduciary responsibility to

federally-recognized tribes and

individual Indians. Particularly,

revisions to the probate regulations

institute necessary procedures to

expedite the probate process for Indian

decedents’ estates. Revisions to

regulations dealing with funds held in

trust standardize the process for

collecting, distributing, and accounting

for individual Indian monies and

monies held in trust for tribal

governments. Revisions to leasing/

permitting regulations implement the

Indian Agricultural Resource

Management Act and address

appropriate procedures for entering into

leases and permits on Indian lands and,

more importantly, aid in properly

determining and accounting for the

value of such leases to individual land

owners and tribal entities. Revisions in

the grazing permit regulations address

similar concerns and further standardize

the process and forms utilized in

granting permits on Indian lands. In the

interests of economy of administration,

and because all the revisions clarify and

standardize Departmental policy, they

are illustrated in one rulemaking

vehicle.

EFFECTIVE DATE: March 23, 2001.

FOR FURTHER INFORMATION CONTACT:

Duncan L. Brown, Department of the

Interior, Office of the Secretary, 1849 C

Street, NW., MS 7412 MIB, Washington,

DC 20240, telephone 202/208–4582.

SUPPLEMENTARY INFORMATION:

I. Background

II. Response to Comments

III. Part-by-Part Analysis

IV. Procedural Requirements

A. Review Under Executive Order 12866

B. Review Under Executive Order 12988

C. Review Under the Regulatory Flexibility

Act

D. Review Under Small Businesses

Regulatory Enforcement Fairness Act of

1996

E. Review Under the Paperwork Reduction

act

F. Review Under Executive Order 13132—

Federalism

G. Review Under the National

Environmental Policy Act

H. Review Under the Unfunded Mandates

Reform Act of 1995

I. Background

Pursuant to the Department’s ‘‘Trust

Management Improvement Project—

High Level Implementation Plan,’’

certain parts within 25 CFR were

identified for immediate revision. These

parts were identified through an

internal review by the Bureau of Indian

Affairs (BIA) in consultation with the

Office of the Special Trustee for

American Indians (OST), and from tribal

responses to consultations held in the

field over a period of years.

Additionally, non-governmental Indian

organizations were consulted on areas of

BIA trust management needing

clarification and more uniform

application of policy and administration

throughout Indian Country. This

rulemaking was initiated as an

appropriate response to the

Administration’s stated goal of

improving the administration and

management of individual Indian and

tribal trust resources. The Final Rule

was developed with attention to

Secretarial Order 3215, ‘‘Principles for

the Discharge of the Secretary’s Trust

Responsibility,’’ of April 28, 2000,

which was converted to and made

permanent in the Departmental Manual

on October 31, 2000. See 303 DM 2.

The proposed regulation was

published in the Federal Register on

July 14, 2000, (65 FR 43874) with a 90-

day public comment period. During the

comment period, the BIA held eight

formal tribal consultation sessions to

discuss the proposed regulations and

receive oral comments on the record.

Additionally, the BIA met informally

with the interested organizations, such

as the policies and procedures working

group formed with the National

Congress of American Indians (NCAI)

and the Inter-Tribal Agricultural

Council, and encouraged them to

provide written comments.

Comments were forwarded to a

clearinghouse for compilation, and

responses by the BIA to substantive

comments are noted below. The

comments and compilation documents

were carefully reviewed by the

regulation drafting teams, made up of

BIA employees from central, regional

and agency offices, and trust program

attorneys from the Solicitor’s Office. As

noted in the part-by-part analysis below,

in direct response to comments the

regulations have been clarified and

reorganized. Additionally, some

sections have been deleted, while new

provisions have been added to provide

for increased clarity and precision. The

regulations generally have been revised

to afford greater recognition of tribal

sovereignty and self-determination, as

well as greater recognition of the

inherent rights of the Indian

landowners. Time frames for BIA or

Departmental action have been added,

as have provisions identifying the entity

within the Department responsible for

taking official action. Further, we have

strengthened the provisions for the

BIA’s enforcement of leases and permits

on trust and restricted lands, including

collection of trust income. Further, we

have revised and standardized the

provisions in each part that address the

creation and maintenance of trust

records.

As we explain below in the part-bypart analysis, the passage of the Indian

Land Consolidation Act Amendments of

2000, Public Law 106–462 (ILCA

Amendments), extensively alters the

legal framework governing activities on

fractionated trust and restricted lands.

As a result, at this time the Department

will not issue new final regulations

affecting business and residential leases.

Such regulations will be re-proposed

after the full impact of the ILCA

Amendments is fully ascertained and

more consultation with tribes is held.

Lastly, as explained more fully below,

in order to accommodate many of the

comments pertaining to Individual

Indian Money (IIM) accounts, including

supervised accounts and the use of IIM

accounts to secure loans, the BIA will

not issue final regulations in part 115

that would directly address these

subjects. These provisions will be reproposed for further comment and

consultations.

To facilitate comparison between the

Proposed Rule and the Final Rule, we

have provided the following tables.

Sections deleted from the Proposed Rule

are denoted with asterisks (**) in the

final regulation columns, and new

sections added to the final regulations

are denoted by their section numbers

and a plus (+) sign in the column for

final regulations.

Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations 7069

25 CFR PART 15.—PROBATE OF INDIAN ESTATES EXCEPT FOR MEMBERS OF THE FIVE CIVILIZED TRIBES

Proposed Final Proposed Final Proposed Final Proposed Final Proposed Final Proposed Final

.1 ................................................ .1 .104 .106 .202 .202 .303 .303 .310 .310 .............. +.405

.2 ................................................ .2 .105 .104 .203 .203 .304 .304 .311 .311 .405 .403

.3 ................................................ .3 .106 .105 .204 .206 .305 .305 .312 .312 .501 .501

.4 ................................................ .4 .107 .107 .205 ** .306 .306 .401 .401 .502 .502

.101 ............................................... .101 .108 .108 .206 .205 .307 .307 .402 .402 .503 **

.102 ............................................... .102 .109 .109 .301 .301 .308 .308 .403 .403 .............. +.503

.103 ............................................... .103 .201 .201 .302 .302 .309 .309 .404 .404 .............. +.504

25 CFR PART 115.—TRUST FUNDS FOR TRIBES AND INDIVIDUAL INDIANS

Proposed Final Proposed Final Proposed Final Proposed Final Proposed Final Proposed Final Proposed Final

.1 ............... .001 .208 .812 .311 ** .337 .502 .363 ** .389 ** .506 .607

.2 ............... .002 .209 ** .312 ** .338 .503 .364 .418 .390 ** .507 .608

.100 ............... .700 .210 .806 .313 ** .339 .504 .365 .413 .400 .900 .508 .609

.101 ............... .701 .211 .814 .314 .409 .340 .403 .366 .428 .............. +.400 .509 .610

.102 ............... .103 .212 .818 .315 .416 .341 ** .367 .429 .401 .901 .510 .611

.102 ............... .702 .213 .819 .316 ** .342 ** .368 .430 .............. +.401 .511 .612

.103 ............... .805 .214 .820 .317 ** .343 ** .369 ** .402 .902 .512 .613

.104 ............... ** .215 .808 .318 ** .344 .422 .370 .431 .340 +.402 .513 .614

.105 ............... ** .216 .809 .319 ** .345 .423 .371 ** .403 .903 .514 .615

.106 ............... .703 .216 .813 .320 ** .346 .424 .372 ** .404 .904 .............. +.606

.107 ............... .705 .217 .810 .321 ** .347 .425 .373 ** .............. +.406 .............. +.616

.108 ............... .706 .218 .811 .322 ** .348 .102 .374 ** .314 +.407 .515 .617

.109 ............... .707 .219 .815 .323 ** .349 ** .375 ** .............. +.408 .516 .618

.110 ............... .708 .220 .816 .324 ** .350 ** .376 ** .............. +.412 .517 .619

.111 ............... .710 .221 .817 .325 ** .351 ** .377 ** .............. +.414 .518 .620

.112 ............... .711 .300 ** .326 ** .352 ** .378 ** .............. +.419 .600 .107

.113 ............... .712 .301 ** .327 ** .353 ** .379 ** .358 +.421 .700 .1000

.114 ............... .713 .302 ** .328 .102 .354 ** .380 ** .............. +.500 .701 **

.200 ............... .800 .303 ** .329 .410 .355 ** .381 ** +.501 .702 .1001

.201 ............... .801 .304 .404 .330 .411 .356 ** .382 ** .............. +.600 +.704

.202 ............... .802 .305 .709 .331 ** .357 .421 .383 ** .500 .601 .801 .105

.203 ............... .803 .306 .405 .332 .415 .358 .420 .384 ** .501 ** .802 .106

.204 ............... .709 .307 ** .333 ** .359 .417 .385 .104 .502 .602 .803 .100

.205 ............... ** .308 ** .334 ** .360 .427 .386 ** .503 .603 .............. .804

.206 ............... ** .309 ** .335 ** .361 ** .387 ** .504 .604 .............. +.807

.207 ............... ** .310 ** .336 ** .362 ** .388 ** .505 .605 .............. ..............

PART 162.—LEASES AND PERMITS

Proposed Final Proposed Final Proposed Final Proposed Final Proposed Final Proposed Final

.1 ................................................. .100 .23 .244 .42 .226 .83 ** .126 .252 .173 **

.1 ................................................. .103 .24 .230 .43 .227 .84 ** .126 .619 .174 **

.2 ................................................. .101 .25 .230 .44 .223 .85 ** .127 .240 .175 **

.3 ................................................. .103 .26 .219 .45 .234 .86 ** .127 .612 .176 **

+.105 .26 .220 .46 .234 .87 ** .............. +.254 .177 **

+.106 .26 .221 .47 .235 .88 ** .128 .255 .178 **

+.107 .26 .223 .48 .236 .89 ** .............. +.256 .179 **

.3 ................................................. .200 .26 .231 .49 .236 .90 ** .129 ** .180 .111

.4 ................................................. .108 .26 .238 .50 .236 .91 ** .130 .620 .180 .112

+.109 .27 .229 .51 .237 .100 .226 .140 .102 .............. +.300

.5 ................................................. .202 .28 ** .52 .237 .101 .226 .141 ** .............. +.400

.6 ................................................. .203 .............. +.231 .............. +.239 .102 .110 .142 ** .190 .500

.7 ................................................. .205 .29 .232 .60 ** .110 .228 .143 ** .191 .501

.8 ................................................. .204 .30 .233 .61 ** .110 .241 .144 ** .192 .502

.9 ................................................. .202 .31 .233 .62 .206 .111 .228 .145 ** .193 **

.10 ................................................. ** .32 .224 .63 ** .111 .241 .146 ** .194 .503

.11 ................................................. .201 .33 ** .64 .207 .112 .228 .147 .102 .195 **

.12 ................................................. .214 .34 .224 .65 ** .112 .241 .150 .211 .............. .601

.12 ................................................. .215 .34 .613 .66 .207 .113 .228 .151 .211 .............. .602

.13 ................................................. .213 .35 .224 .66 .212 .113 .241 .152 .222 .............. .603

.14 ................................................. .217 .35 .247 .67 .104 .114 .228 .160 ** .............. .604

.15 ................................................. .217 .36 .248 .68 .104 .114 .241 .161 ** .............. .605

.16 ................................................. .217 .36 .615 .70 .102 .120 ** .162 ** .............. .606

.17 ................................................. .110 .37 .225 .70 .207 .121 .250 .163 ** .............. .607

7070 Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations

PART 162.—LEASES AND PERMITS—Continued

Proposed Final Proposed Final Proposed Final Proposed Final Proposed Final Proposed Final

.18 ................................................. .218 .37 .249 .71 .208 .121 .617 .164 ** .............. .608

.19 ................................................. ** .37 .614 .71 .209 .122 .251 .165 ** .............. .609

.20 ................................................. .221 .37 .616 .72 .207 .122 .618 .166 ** .............. .610

.21 ................................................. .230 .38 .248 .73 .210 .123 .251 .167 ** .............. .611

.21 ................................................. .242 .38 .615 .74 .207 .123 .618 .168 ** .............. +.621

........................................................ .22 .230 .39 .224 .75 .216 .124 .251 .169 ** +.622

+.243 .40 .224 .80 ** .124 .253 .170 ** .............. +.623

+.245 .............. .............. .81 ** .125 .252 .171 ** .............. ..............

.22 ................................................. .246 .41 .226 .82 ** .125 .619 .172 ** .............. ..............

25 CFR PART 166.—GRAZING PERMITS ON INDIAN LANDS

Proposed Final Proposed Final Proposed Final Proposed Final Proposed Final Proposed Final

.1 .......................... .1 .122 .221 ................ +.308 .412 .418 .606 .607 .811 .811

+.2 .123 .222 .206 .309 .413 .411 .607 .608 .812 .812

.2 .......................... .3 .124 .223 .207 .310 .414 .412 .700 .700 .813 .813

.100 ......................... .200 .125 .224 .208 .316 .415 .419 .701 .701 .814 .814

.101 ......................... .201 .126 .225 .209 .317 .416 .420 ................ +.702 .815 .815

.102 ......................... .203 .127 .226 .210 .311 .417 .414 .702 .703 .816 .816

.103 ......................... .204 .128 .1 .211 .312 ................ +.415 .703 .704 .817 .817

+.205 .129 ** 212 .313 .418 .413 .704 .706 .818 .818

.104 ......................... .202 .130 ** ................ +.314 .419 ** .705 .606 .819 .819

.105 ......................... .206 .131 ** ................ +.315 .420 .419 .706 .705 .900 **

.106 ......................... .207 .132 ** .300 .100 .421 .416 .707 ** .1000 .1000

.107 ......................... .208 .133 ** .301 .101 .422 .417 ................ +.707 .1000 .1001

.108 ......................... .209 .134 ** .302 .102 ................ .421 .708 .708 .1100 .900

.109 ......................... .209 .135 .1 .303 .103 .423 .422 .709 ** .1101 .901

.110 ......................... .209 .136 .227 .304 .104 .424 .423 ................ +.709 .1102 .902

.111 ......................... .212 .137 .228 .400 .400 .425 .424 .800 .800 .1103 .903

.112 ......................... .213 .138 .229 .401 .401 .500 .500 .801 .801 .1104 .904

.113 ......................... .214 ................ +.230 .402 .402 .501 .501 .802 .802 .1105 .905

.114 ......................... .210 ................ +.231 .403 .403 .502 .502 .803 .803 .1106 .906

+.211 .200 .300 .404 .404 .503 .503 .804 .804 .1107 .907

.115 ......................... .215 .201 .301 .405 .405 .504 .504 .805 ** .1108 .908

.116 ......................... .216 .202 .302 .406 .406 .600 .600 ................ +.805 .1109 .909

.117 ......................... .217 .203 .303 .407 .407 .601 .601 .806 .806 .1110 .910

.118 ......................... .218 ................ +.304 .408 .309 .602 .602 .807 .807 ................ ................

.119 ......................... .219 .204 .305 .409 .408 .603 .603 .808 .808 ................ ................

.120 ......................... .220 ................ +.306 .410 .409 .604 .604 .809 .809 ................ ................

.121 ......................... ** .205 .307 .411 .410 .605 .605 .810 .810 ................ ................

II. Response to Comments

The Department solicited comments

from all interested parties through its

publication of the Proposed Rule on July

14, 2000, and further solicited informal

comments through eight regional

consultation sessions: Aberdeen, SD

(August 7–8, 2000); Anchorage, AK

(August 10, 2000); Oklahoma City, OK

(August 10, 2000); Bloomington, MN

(August 17, 2000); Albuquerque, NM

(August 21 and 22, 2000) [two separate

consultation meetings]; Billings, MT

(August 24, 2000); and Reno, NV

(August 28–29, 2000). Transcripts were

made of these sessions in order to

ensure that both oral and written

comments were considered. Following

the consultation meetings, several BIA

regional and agency offices established

informal local working groups with

tribes to encourage discussion of the

proposed regulations and submission of

written comments. Throughout the

comment period we met on an informal

basis to discuss the regulations with

interested organizations, including the

NCAI working group and the InterTribal Agricultural Council.

The Department received a total of

317 written comments on all parts of the

proposed rulemaking, representing 349

individual signatures. Written responses

were received from respondents in 25

states, although many responses were

received in a format that did not reveal

their geographic origin. The Department

received 159 written responses from

tribal governments (representing 168

signatures and including four tribal

government resolutions), and 31

responses from non-governmental

Indian organizations (representing 34

signatures). Six respondents identified

themselves as tribal members.

Additionally, one response was received

from a state governmental entity, and

five from business entities. The

remaining respondents included

unaffiliated individuals (57 responses)

and federal agencies (58 responses,

representing 78 individual signatures).

All substantive comments were

reviewed by the Department and,

depending upon their merit, the

Department accepted, accepted with

revision, or rejected for reason

particular comments made on each part

of the rule. Substantive comments are

summarized below.

A. General Comments—Overall

Rulemaking

Many tribes, tribal organizations and

individuals expressed strong opinions

that the Department should not finalize

these regulations as planned. Primarily,

respondents expressed concern that the

process by which the regulations were

Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations 7071

developed did not include sufficient

time to analyze the scope of the

regulations and identify and resolve

issues, nor did it incorporate sufficient

consultation with tribes and affected

individuals. The regulations were

proposed only after full communication

of the Department’s intentions after

requesting information and opinions

from the tribes and individual Indians

affected by the regulations.

The Department has committed to this

schedule in response to the tremendous

need to improve the execution of the

Secretary’s trust responsibility in

accordance with the American Indian

Trust Fund Management Reform Act, 25

U.S.C. § 4001 et seq. We have

committed to this schedule through the

Department’s High Level

Implementation Plan, developed in

cooperation with and under the

oversight of the OST, and in response to

ongoing litigation.

Well before the proposed regulations

were published in the Federal Register,

the Department recognized the need to

complete these revisions prior to the

end of the current Administration in

order to prevent delays caused by the

upcoming presidential transition. Based

on priorities identified by BIA trust

program staff, we identified the

regulatory reforms that could be

accomplished within this time frame

and developed a schedule that would

ensure consultation with tribes and

consideration of their opinions to the

greatest extent possible. We invited the

NCAI to convene a work group of tribal

representatives and other interested

persons to assist in developing the

regulations. To assist the NCAI, the BIA

provided funding and agreed to meet as

many times as necessary to complete the

job. Also, we conducted early

consultations with tribal leaders,

advising them of the specific trust

regulations to be addressed first. These

meetings provided an early opportunity

for meaningful input into the rule

making process.

In a significant departure from past

practice, the BIA distributed the

preliminary drafts of the proposed

regulations to the NCAI and to tribes

through BIA regional directors, with a

request for comments and

recommendations. Several subsequent

meetings were held with the NCAI

working group to discuss the evolving

draft regulations prior to publishing the

proposed regulations on July 14, 2000.

These meetings included the Assistant

Secretary—Indian Affairs, the Deputy

Commissioner of Indian Affairs, staff of

the Trust Policies and Procedures (TPP)

project, trust program managers, and

trust program attorneys from the

Solicitor’s Office. Notably, tribal

representatives from each BIA region

and BIA managers participated in a

three-day meeting in Mesa, AZ, in April

2000, to discuss the draft regulations.

Following the publication of the

proposed rules, as noted above TPP staff

conducted eight regional consultation

meetings with tribal leaders, individual

Indians, and other interested parties. In

sum, despite the accelerated schedule

for developing and issuing these

regulations, tribes and individual

Indians have had an extraordinary

opportunity to provide meaningful

input on the proposed regulations

through informal consultations on the

early drafts, formal consultations, and

the public comment period.

Many respondents asserted that

Executive Order 13084 required a

negotiated rule-making process in

developing and implementing the

proposed regulations. Contrary to these

assertions, Executive Order 13084 does

not require a negotiated rule-making

process.

We disagree with the concern

expressed by several respondents that

the proposed rules would create new

processes and requirements in all areas

of trust management, resulting in

negative impacts to both tribes and

individual Indians. Rather, these

regulations strengthen the Department’s

exercise of its trust responsibility by

codifying current practices and will

provide an important measure of

consistency and uniformity in these

practices on a nationwide basis.

Many commenters believe that the

proposed regulations did not

sufficiently address the issues of tribal

sovereignty and principles of tribal selfdetermination. We agree that the

proposed regulations did not go far

enough to recognize tribal sovereignty

and self-determination, and have now

made significant revisions within the

bounds of existing law. However, many

of the antiquated trust statutes that

govern the actions of the Department

predate the tribal self-determination

legislation. When amendatory

legislation is enacted, we will revise the

regulations accordingly.

The management of trust records is

integral to the performance of the trust

responsibility, and must be carried out

by all entities and individuals who

undertake such activities, including

tribes performing federal trust functions.

It is essential that everyone managing

trust assets, both tribes and the

Department, be subject to the same

requirements for the creation,

maintenance, and retention of records

that evidence the organization,

functions, policies, decisions,

procedures, operations, or other

activities undertaken in the

management of trust assets. Without a

consistent nationwide system for

creating and maintaining trust records,

the United States will be unable to

fulfill its trust responsibilities to tribes

or individual Indians. Accordingly, the

records language in the proposed

regulations have been modified to be

consistent across the board.

Of particular importance are the

provisions in each part that specify who

owns trust records: Records are the

property of the United States if they are

made or received by a tribe or tribal

organization in the conduct of a federal

trust function under this part pursuant

to Public Law 93–638 as amended,

including the operation of a trust

program, and evidence the organization,

functions, policies, decisions,

procedures, operations, or other

activities undertaken in the performance

of a federal trust function under the

regulations. If records are not covered

by the preceding definition, but are

made or received by a tribe or tribal

organization in the conduct of business

with the Department of the Interior, they

are the property of the tribe. If a tribe

or tribal organization does not preserve

records associated with its conduct of

business with the Department of the

Interior under these regulations, the

tribe may be prevented from being able

to adequately document essential

transactions or furnish information

necessary to protect its legal and

financial rights or those of persons

directly affected by its activities.

The language is consistent in each

part of the final regulations, and builds

on the provisions that were proposed

under part 115. The Department will

provide more detailed direction on the

management of trust records in 2001.

Finally, we received comments

requesting that the Department include

in the regulations provisions for the

establishment and maintenance of an

accounts receivable system. The

Department is building such a system in

its Trust Asset and Accounting

Management System. However, we

believe the regulations are not an

appropriate place to address an

accounts receivable system; to define

such a system by regulation would

remove operational flexibility that is

necessary to address the many complex

factors involved in managing trust

assets.

7072 Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations

III. Part-by-Part Analysis

A. 25 CFR Part 15—Probate of Indian

Estates

The purpose of this regulation is to

describe the authorities, policies and

procedures the BIA uses to probate an

Indian decedent’s estate. This is a

revision to the existing part and amends

and replaces the part in its entirety.

The regulation implements

administrative procedures by which the

BIA will process and determine certain

probate cases where a hearing is not

required nor requested. These

procedures, embodying a return to the

BIA of the responsibility to determine

particular probate cases, are the result of

the recommendations of the

Department’s Indian Probate

Reinvention Lab (IPRL). Formed in

1999, the IPRL examined the

Department’s Indian probate process

from a multi-agency perspective,

including the BIA, the Office of

Hearings and Appeals (OHA), which

handles Indian probate cases requiring

hearings, and the OST. The IPRL

recommended, among other things, that

the BIA establish attorney decisionmakers at regional offices to handle

certain probate cases under criteria to be

established by regulation. This

recommendation was based on an

analysis that included reviewing reports

from previous studies of Indian probate

matters, site visits and interviews of

customers and employees. The final

revisions of part 15 will implement in

the BIA the procedural aspects of the

IPRL’s recommendations. At the

appropriate time, the OHA will amend

its regulations to accommodate the

BIA’s responsibility for these probate

cases and to ensure that the same

standards and criteria for determining

heirs and paying claims are consistently

applied between the BIA and OHA.

In addition to establishing the process

by which the attorney decision makers

in the BIA will decide certain probate

cases, the regulations in part 15 also

address the summary processing of

Indian estates. Formerly handled only

by agency superintendents, summary

distribution of estates will also be

decided by the attorney decision

makers. See 65 FR 25449–25450 (May 2,

2000).

The various subparts of part 15

address the purpose and scope of the

Indian probate procedures; the

definition of terms; the mechanics of

initiating the probate process, including

the appropriate notifications of the

selection of the deciding official; the

preparation of the probate package

itself, including the identification of

necessary documents to facilitate a

timely process; the disposition of claims

against an estate; the ultimate

distribution of the decedent’s assets to

the determined heirs or devisees; and

the procedures for appeals should a

dispute arise during any stage of the

probate process. Cross references have

been made to the OHA’s hearings and

appellate procedures and disposition of

funds held in trust for decedents.

General Observations Regarding

Changes From Proposed Rule

Overall, respondents commended the

Department for its efforts to address a

longstanding problem with the probate

backlog primarily caused by a lack of

staffing and resources over the years.

Commenters focused on the need for

devising specific time frames for each

step of the probate process to ensure

timely processing of the estates

including the preparation and

submission of the probate package,

issuance of decisions, and the closing of

estates. A primary concern for many

commenters in adding a new BIA

deciding official to expedite the probate

process was that probable heirs or

beneficiaries should be advised of the

right to a hearing before an ALJ. These

concerns were given great consideration

and incorporated into the final

regulations.

Finally, to be consistent with the

regulations published under parts 115,

162 and 166, we have added two

sections addressing the maintenance of

records relating to probate cases.

Subpart A—Introduction

Summary of Subpart

This subpart addresses the purpose

and scope of the Indian probate

procedures, the definition of terms used

in part 15, and process for probating

estates. This subpart sets forth the

limitation on the scope of the

application of part 15 to the Five

Civilized Tribes in Oklahoma and the

Osage Nation. The overall process from

notification of death to the appeal of

decisions is described by reference to

other subparts.

Comments

The Secretary’s jurisdiction to decide

probate cases is limited to trust or

restricted assets except as otherwise

provided by federal laws for the Five

Civilized Tribes and the Osage Nation.

The Final Rule clarifies that trust lands

of the Five Civilized Tribes and Osage

Nation may be included in part 15.

Several respondents requested more

clarification of terms used in the

regulations. In response to these

requests, the definitions ‘‘OTFM,’’

‘‘probate clerk,’’ ‘‘trust land’’ and

‘‘restricted land’’ have been added to

§ 15.2.

The Final Rule does not significantly

depart from the Proposed Rule with

respect to the basic steps in the probate

process and the preparation of the

probate package. In response to several

comments, the steps in the probate

process prior to the submission to a

deciding official have been standardized

and streamlined by requiring that all

agencies and tribes prepare the probate

package in the same manner as

recommended by the IPRL. The final

regulations reflect the addition of the

attorney decision maker as a BIA

deciding official to expedite the probate

of estates in certain circumstances.

Subpart B—Starting the Probate

Process

Summary of Subpart

This subpart includes the procedures

for starting the probate process by

notifying the BIA of the death of an

Indian with trust or restricted assets; the

preparation of the probate package

itself, including the identification,

collection, and submission of the

necessary documents to the BIA to

facilitate the timely processing of a

probate package; the circumstances in

which the family of a decedent may

apply for emergency assistance for

funeral arrangements; the assignment of

the responsibility to the BIA agency to

process the package; and the procedures

for the potential heirs’ disclaimer of

interest in the estate.

Comments

We received several comments on the

types of documents that should be

acceptable as evidentiary documents to

support the family heirship data. Of

significant importance to these

respondents is the reliability of

documentation relied on for proof of

death. In the Final Rule at § 15.101, we

have clarified the documents necessary

to prove death by requiring that a

certified copy of a death certificate must

be provided to the BIA. Only in

circumstances where a death certificate

is non-existent will the BIA accept other

documents. This section also allows for

a tribe to verify a member’s death.

Where evidence other than a death

certificate is submitted to verify a death,

an affidavit of death must be submitted

that is prepared by the tribe with whom

the decedent associated or someone

with direct personal knowledge about

the decedent’s death.

Many comments addressed the

provision that allows immediate

assistance for funeral services from the

Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations 7073

decedent’s IIM account. To distinguish

between emergency financial assistance

to pay for funeral arrangements prior to

the burial of the decedent and claims for

funeral expenses against the decedent’s

estate, we added the word ‘‘emergency’’

to the question. Some commenters

objected to obtaining receipts for

traditional burial services such as

payment of cooks and grave-diggers and

the direct payment to the service

providers. We weighed these objections

against the Secretary’s trust

responsibility for proper accounting of

the decedent’s IIM account. Thus, we

renumbered the section to § 15.106 and

divided it into four subparts to clarify

the cost estimates for funeral

arrangements and to achieve a

compromise position between tribal

traditions and the Secretary’s trust

responsibility to preserve the decedent’s

IIM account for the probable heirs and

beneficiaries. In order to preserve the

trust estate for probable heirs or

beneficiaries, the BIA continues its longstanding practice of limiting the amount

of money that may be distributed for

funeral expenses prior to completion of

the probate. Therefore, the Final Rule

does not change the limit on the amount

of money that can be disbursed for

funeral expenses prior to the probate.

One of the problems causing

significant delays in the processing of

probate files is the time-intensive

gathering of evidence required as

supporting documents for the probate

package. In certain situations where the

decedent’s family resides in a remote

area without transportation or

telephonic communications, the

collection of documents proceeds very

slowly. Some respondents stated that

the BIA should assume an affirmative

role in assisting the family in collecting

documents, rather than place the burden

of obtaining all of the supporting

documents entirely on the decedent’s

family. We accepted these comments,

and have changed the wording in the

Final Rule at § 15.104 from ‘‘must’’ to

‘‘should.’’

Section 15.104 lists the documents

that must be included in a probate

package. This section has been

rearranged to provide for documents

that must be obtained from a court of

competent jurisdiction, which may be a

tribal or state court. Name changes and

orders requiring the payment of child

support were added at the suggestion of

the commenters. The Final Rule at

§ 15.104 also provides that the probate

package will contain all information

provided by an interested party whether

the BIA has requested it or not.

We received several suggestions on

the manner in which an agency or tribe

is assigned the responsibility for

preparing probate packages for nonenrolled decedents and decedents

enrolled in more than one tribe. The

proposed standard was the agency that

has jurisdiction over the trust property

of the decedent or the greater amount of

trust property. Respondents suggested

that we assign responsibility to the

agency with the strongest contacts with

the decedent and/or the agency where

the IIM account is located. The existing

BIA policy which assigns the probate to

the agency with the strongest

association with the decedent has been

incorporated in the Final Rule at

§ 15.108. The most expedient manner

for processing the probate package is to

maintain contact with a family member

of the decedent who has lived nearby

the decedent and is familiar with the

family relationships of the decedent.

This standard was continued because a

decedent may reside within the

jurisdiction or have more contacts with

an agency that does not necessarily have

jurisdiction over the greatest amount of

the decedent’s trust property. The

likelihood of an agency or tribe

obtaining the most information about

the decedent comes from an agency

with the strongest associations with the

decedent.

While § 15.202(g) allows the

submission of a disclaimer of interest to

be filed with the probate order, the Final

Rule at § 15.109 provides that the

probable heir or beneficiary may

renounce their interest anytime up to

the time a deciding official issues an

order. The final regulation also

incorporates the existing requirement in

43 CFR Part 4, Subpart D, that a

disclaimer of any Indian interest

requires a formal hearing before an ALJ.

Subpart C—Preparing the Probate

Package

Summary of Subpart

This subpart addresses the requisite

documents that must be contained in a

complete probate package; the selection

of the deciding official and notice of this

decision to the interested parties; the

contents of the notice; the identification

of the processing times; the right of the

interested parties to request a formal

hearing with an ALJ; the circumstances

under which the BIA will refer a probate

package to an ALJ; and the procedures

for the summary distribution of an

estate containing only trust cash assets

of less than $5,000.

Comments

We have revised this section to

address similar comments on the

selection of the BIA or OHA deciding

official, and the notice of this selection.

Incorporating many of the comments

received, we provide in the Final Rule

a more comprehensive notice scheme

that identifies the probable intestate

heirs; states whether a will has been

submitted and provides a copy; and

states whether any claims have been

filed against the estate. In response to

several comments, a new section at

§ 15.204 has been added to clarify that

the probable heirs or beneficiaries may

request a hearing before an ALJ at any

time before a decision has been made by

an attorney decision maker.

Many commenters were concerned

over the clarity of the criteria used by

the probate specialist to weigh in

determining where to send the probate

package. In response, we have added

several new items in § 15.205(c) to

clarify the circumstances under which

the probate package should be sent to an

ALJ and to provide consistency with

other sections. These items include

questions involving paternity,

disclaimers of interest by an Indian heir

or beneficiary, and any challenges to the

jurisdiction of a court that has issued an

order which has been used as a

supporting document in the probate. A

new subsection (d) has been added to

clarify that approval of settlement

agreements among heirs must be by the

OHA. To address the concern that a

probate specialist may not foresee all of

the kinds of problems identified in

§ 15.205, the attorney decision maker

must review the probate package and

determine whether there are any issues

of fact or law that would require a

formal hearing. If so, then the attorney

decision maker will immediately

forward the case to the appropriate ALJ.

In response to several requests for

more clarity, the process for summary

distribution has been reorganized and

placed at the end of this subpart. The

summary process provides that the BIA

deciding officials (the superintendent,

field representative, regional director in

cases of self-governance tribes, or

attorney decision maker) may decide

cases that contain only trust cash assets

of less than $5,000. Relocating this

section clarifies that the criteria for

selecting the deciding official applies to

the expedited intestate and testate

summary distribution process. Section

15.206 provides for 30 days for the

probable heirs and beneficiaries to

request a formal hearing before an ALJ;

60 days after notice has been sent for the

BIA deciding official to assemble the

probable heirs or beneficiaries and

conduct an informal hearing; and 30

days for the BIA deciding official to

issue a decision after the informal

hearing. Under § 15.206(c), the BIA

7074 Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations

deciding official must apply §§ 15.302–

311 to determine the distribution of the

Indian estate. As recommended, the

incorporation of these sections in the

summary distribution process ensures

that the same standards will be applied

on a national scale by every BIA

deciding official. Lastly, many

respondents stated that they were

confused by the differing appeal

procedures of the decision of the

superintendent and the attorney

decision maker, and that the same

appellate process should be in place for

all BIA deciding officials. The Final

Rule incorporates in § 15.206(d) a single

appellate process for all BIA deciding

officials.

Subpart D—Probate Processing, Claims

and Distributions

Summary of Subpart

This subpart states when the BIA

must forward the probate package to an

ALJ for a formal hearing or to an

attorney decision maker for an informal

hearing. The choice of law to be applied

to the facts of the Indian estate is

defined to standardize the deciding

official’s application of law. This

subpart also includes the process for

submitting claims against the estate;

allowance and payment of claims;

priority of claims; reduction of claims;

use of future income to pay claims; the

payment of interest; the contents of the

BIA deciding official’s written decision/

order; and the handling of the estate

while an appeal is pending.

Comments

Numerous respondents requested that

we clarify time frames and deadlines

that the public and BIA must follow.

Accordingly, § 15.301 imposes

deadlines on the attorney decision

maker for the regular processing of

probate packages. The comments

strongly recommend that if the attorney

decision maker keeps the probate

package, the attorney decision maker

should hold informal hearings or

conferences with the interested parties

to identify any potential problems, will

contests, or contested claims, which

may prompt a formal hearing with an

ALJ. Additionally, several commenters

expressed a concern that the attorney

decision maker should hold an informal

hearing because many traditional Indian

people may not feel comfortable or wish

to make a written objection or request a

formal hearing. We have accepted these

comments. The Final Rule at § 15.301

incorporates the informal hearing

procedure for all probate proceedings in

the same manner as the existing

regulations at 43 CFR 4.271.

Additional deadlines for the attorney

decision maker have been incorporated

in § 15.301 and § 15.310 to conduct an

informal hearing and issue a decision.

As many comments recommended, we

will allow up to 180 days for an attorney

decision maker to issue a decision.

The comments provide considerable

discussion of what law is to be applied

to determine heirs, approve wills, and

determine whether or how to pay

claims. Some tribes suggested that the

Uniform Probate Code, a code adopted

in portion by many states, be used on

a national basis. Other tribes suggested

that tribal law and tribal courts

administer the Secretary’s trust

responsibility for the probate of Indian

estates. Questions were raised about

how conflicting intestate processes and

land fractionation would be reconciled

under tribal and state laws. Some

commenters objected to the application

of the inheritance laws of all fifty states.

Others suggested that the law to be

applied should be the law of the state

where the IIM account is located. Some

commenters stressed that there are also

federal statutes that direct inheritance

procedures in certain circumstances

(e.g., Indian Land Consolidation Act) or

for specific tribes (e.g., Standing Rock

Sioux Tribe), and that the application of

state probate law has been preempted in

these circumstances. In addition to the

statutory inheritance laws, many noted

that the Secretary has approved tribal

inheritance codes for several tribes.

These comments were considered in

great depth. The Final Rule in § 15.302

continues the existing practice by

acknowledging that, unless provided

otherwise by federal law or by tribal

inheritance codes approved by the

Secretary, the state law of the decedent’s

domicile will determine the distribution

of the estate.

There were nearly equal numbers of

comments for and against the payment

of any claims against an Indian

decedent’s estate. In particular, many

were concerned that credit may not be

extended if claims were precluded from

Indian estates. The respondents

opposing the allowance of any claims

against the estate stated that in intestate

situations an Indian decedent has not

authorized any claims to be paid and

that the assets of the estate rightfully

belong to the heirs. Some tribes

commented that the BIA should defer to

any tribal law that addresses the filing

and collection of creditors’ claims. To

the extent such requirements are

included in a tribal inheritance code

approved by the Secretary, the tribal

laws will apply. Several commenters

felt that trust assets should be used to

pay debts only when there are no nontrust assets available. The Final Rule in

§ 15.303 allows the payment of claims

out of trust cash assets only after

evidence of exhaustion or non-existence

of non-trust assets have been provided

by the claimant.

Many respondents were concerned

about the standards to be applied by the

deciding officials in paying claims, as

well as the priority of claims to be paid.

Many stated that tribal claims should be

a priority claim because tribes are

generally the major creditor on Indian

reservations. Many were concerned that

failure to pay tribal loans by the estate

would dramatically reduce the

availability of credit to Indians. Several

comments also stated that claims

reduced to judgment in a court of

competent jurisdiction should also be a

priority. The Final Rule at § 15.305

incorporates both of these claims as

priorities.

Comments from tribes and tribal

advocates stated that the inclusion of

the United States’ claims as priority

claim confers an economic benefit on

the trustee that is inconsistent with its

fiduciary duty. We agree. The trustee is

obligated to preserve the estate for the

benefit of the heirs and beneficiaries,

and permitting the federal trustee to

reach into the Indian trust corpus and

seize property for his own benefit raises

a serious conflict of interest and is

inconsistent with fundamental

principles of trust law. After serious

consideration of the United States’ role

as trustee in light of potentially

conflicting statutory provisions for

collection of debts owed to the United

States, we have deleted claims of the

United States as a priority claimant

against trust estates in § 15.305.

In response to many concerns that

there was no provision for prorating

general claims, the Final Rule at

§ 15.306 adds separate authority for the

BIA deciding official to reduce or

disallow both priority and general

claims.

The BIA proposed to allow estates to

remain open up to five years to pay

creditors of the estate. In comparison,

the current regulations at 43 CFR

4.251(d) allow an estate to remain open

up to seven years. The majority of the

commenters, however, objected to

holding estates open for the payment of

any claims, regardless of priority or

general claims. Commenters stated that

the United States, as trustee, has placed

the creditors of Indian individuals in a

better position than creditors of other

non-Indian citizens by holding the

estates open to pay creditor claims.

After serious consideration and the

weighing of comments, the Final Rule

Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations 7075

deletes the proposed section that holds

estates open to pay claims.

We received comments both in favor

of and against the suspension of interest

that may accumulate on a claim against

the estate before it is paid. Comments

favoring the payment of interest stated

that non-payment would create another

road block to an Indian’s ability to

obtain credit. Comments opposed to

paying interest stated that the estate

should be preserved for the heirs. The

Final Rule at § 15.309 leaves in place

the Proposed Rule declining to pay

interest or penalties on any type of

claim that may accrue after the

decedent’s death.

The Proposed Rule in § 15.310

addressed the responsibility of the

administrator of the estate to file tax

returns. Many commenters noted an

administrator is not generally appointed

for Indian estates. Many also noted that

the Secretary, as trustee, is the

functional equivalent of the

administrator of the estate and therefore

the heirs should consult applicable tax

laws to determine if there is any tax

liability related to the estate. In response

to these comments, this section was

deleted in its entirety.

Finally, many respondents stated that

the official roles of the BIA and the

OTFM should be specifically defined in

executing probate cases decisions,

including the distribution of income. In

response, the Final Rule at § 15.312

provides that in executing probate

decisions, the BIA changes land title

records as appropriate and the OTFM

processes payments from IIM accounts

and the distributes income in

accordance with the probate decision.

Subpart E—Appeals

Summary of Subpart

This subpart addresses the procedures

for appeal of the decision of the BIA

deciding official. The time for appeal,

the status of the estate during appeal,

and the standard of review of the

decision are set forth in this subpart.

Comments

Many respondents stated that it was

too confusing to have two separate

appellate processes for the

superintendents and attorney decision

makers. Two separate procedures might

result in the interested parties filing an

appeal with the wrong entity, which

would adversely affect the exercise of

their right to appeal. The Final Rule

incorporates this recommendation and

establishes only one route of appeal for

probate decisions issued by BIA

deciding officials.

One commenter questioned the

definition of ‘‘known evidence’’ in

appeal proceedings. Further, the

commenter was concerned that the right

to appeal the decision of an attorney

decision maker during the 60–day

appeal period would not allow for the

submission of new evidence, nor would

it allow an appeal on the basis that

known evidence was not included in

the probate package. After careful

consideration, the Final Rule at

§ 15.403(b)(1) and (2) includes clarified

provisions for requesting after-deadline

appeals based on new or unknown

evidence.

Commenters suggested that the

regulations specify that review of

decisions of the attorney decision

makers should be de novo. Due to the

expedited procedure, informal hearing

process, and absence of a full record to

review, we accept this comment. The

Final Rule at § 15.405 adds a new

section for the de novo standard of

review before the ALJ.

Subpart F—Information and Records

Summary of Subpart

This subpart includes general

questions regarding ex parte

communications with a BIA deciding

official and the contact persons for

inquiries about the status of a probate

case, and new provisions addressing

applicable records ownership and

retention requirements.

Comments

We received several comments on the

proposal that members of the public

could not directly contact the attorney

decision makers. The commenters

generally recognized that there is clearly

a need to avoid even the appearance of

impropriety, but that trained

adjudicative personnel understand and

know the constraints of their offices.

One commenter stated that no similar

restriction is imposed upon agency

superintendents who decide summary

distributions. Other responses

emphasized the need for the BIA to

ensure that attorney decision makers are

independent and impartial. After

weighing these competing interests, we

provide in the Final Rule at § 15.501 a

single standard for all BIA deciding

officials that precludes off-the-record

communications with the attorney

decision maker that might be construed

as attempting to influence the substance

of the final probate decision.

The comments suggested that

references to the nationwide tracking

system be deleted as the system was not

in place and there is no date certain

when the system would be in place. We

agree. In the Final Rule we have deleted

the references to the nationwide

tracking system.

B. 25 CFR Part 114—Special Deposits

The purpose of this part was to set

forth the conditions governing the

deposit, investment, and distribution of

principal and interest on trust funds

held by the Department in special

deposit accounts. In addition, this part

provided procedures required for

determination of ownership and

distribution of funds which are on

deposit in account 14X6703, ‘‘Indian

Moneys Proceeds of Labor Escrow

Account—Pending Determination of

Ownership.’’ This special deposit

account (IMPL Escrow Account) has

been obsolete since September 30, 1987,

as any unobligated balances were then

deposited into miscellaneous receipts of

the U.S. Treasury. Since this part dealt

largely with this IMPL Escrow Account,

the text of this part has been deleted in

its entirety. Those provisions

concerning other ‘‘special deposit

accounts’’ are now referenced and

explained in the newly revised part 115.

It was the decision of the Department to

move those provisions to part 115

because that part deals specifically with

tribal and individual Indian trust funds.

Part 114, therefore, has been ‘‘reserved.’’

Comments

No comments were received on the

deletion of part 114 and its subsequent

reservation within 25 CFR.

C. 25 CFR 115—Trust Funds for Tribes

and Individual Indians

The purpose of this regulation is to

describe how the Secretary, primarily

through the BIA and the Office of Trust

Funds Management (OTFM) within the

Office of the Special Trustee (OST),

carries out the trust duties owed to

tribes and individual Indians in

managing and administering trust assets

for the exclusive benefit of tribes and

individual Indian beneficiaries. The

regulation also implements provisions

of the American Indian Trust Fund

Management Reform Act of 1994, Pub.

L. 103–412, 108 Stat. 4239, 25 U.S.C.

4001 (Trust Reform Act). The Final Rule

removes and reserves the existing part

114 (special deposit account provisions

are incorporated into part 115) and

amends and replaces part 115 in its

entirety.

As the section-by-section chart above

illustrates, there have been changes to

the Final Rule from the Proposed Rule

of July 14, 2000. These changes are,

however, reasonably limited by the

decision by the BIA to remove those

proposed provisions that relate to

Individual Indian Money (IIM) accounts

7076 Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations

for adults and to continue in large part

with the language in the current 25 CFR

115 that addresses adult IIM accounts.

This action was taken in response to the

many comments received from tribes

and individual Indians who were

concerned with the rule’s proposed

supervised and encumbered IIM

account provisions. In order to

incorporate many of the

recommendations, we believe that the

Administrative Procedures Act requires

that we re-propose those sections of the

regulation for further public comment.

Therefore, most of those sections

included in subpart D of the proposed

rule have been removed from the Final

Rule, and will be re-proposed at a later

time. The IIM account sections

proposed for minors and estate accounts

have been retained in the Final Rule.

These sections have been amended or

clarified to reflect many of the

comments received. We have responded

to the comment that suggested the Final

Rule identify the responsibilities of

OTFM and the BIA in managing and

accounting for Indian trust funds, by

specifying, where possible, whether

OTFM or the BIA has the responsibility

for an action. For more specific

delegations of Secretarial authority

regarding trust responsibility, we

encourage interested parties to look on

our web page at www.doi.gov. With

respect to the numerous comments

requesting language concerning how we

will collect trust revenue, we refer you

to parts 162 and 166.

Subpart A—Purpose, Definitions and

Public Information

Summary of Subpart

Subpart A addresses the purpose of

the regulation in providing guidance for

the administration and management of

tribal and IIM trust accounts.

Additionally, definitions and common

terms used throughout the subpart are

explained in some detail.

Comments

Comments were received that

encouraged the BIA to look to private

sector trust management systems as a

model for the Department’s trust

management system. Respondents also

requested that the BIA designate a

position of ultimate responsibility for

the administration of trust property. The

Secretary has the ultimate responsibility

for the administration of trust property

and a system of trust management is

already in place with oversight provided

by the Special Trustee as designated in

the Trust Fund Reform Act. Comments

received regarding the addition of more

terms or clarification of definitions were

accepted with more detail where

appropriate, e.g., trust resources and

legal disability. There were numerous

calls seeking clarification of the

definition of an ‘‘adult in need of

assistance’’ while others strongly

objected to the requirement of a court

order as the only method to allow

supervision of an account. Those

comments were accepted in part and the

definition of ‘‘adult in need of

assistance’’ was amended to allow a

determination either (a) through a BIA

administrative process that is based on

a finding by a licensed medical

professional or licensed mental health

professional, or (b) by an order or

judgment of a court of competent

jurisdiction. The determination must

include language that the individual is

‘‘incapable of managing or

administering his or her property,

including his or her financial affairs.’’

Subpart B—IIM Accounts

Summary of Subpart

As discussed above, the proposed rule

had sections regarding adult IIM

accounts that will require re-proposal of

these provisions before we can issue a

Final Rule. In the development of the

provisions to be re-proposed, we will

take into consideration comments

received during the July 14–October 12,

2000 comment period. Subpart B of the

Final Rule is largely the verbatim

illustration of part 115 as it currently

reads in 25 CFR. This subpart deals with

specific provisions for particular tribes

(Five Civilized Tribes and the Agua

Caliente Band of Missions Indians);

adults under legal disability; payment

by other Federal agencies; restrictions;

and appeals. However, provisions

dealing with minors’ accounts, estate

accounts and the hearing process for

restricting an IIM account (which were

regulated in the current part 115) have

been revised in accordance with the

proposed rule and moved to the new

subparts C, D, and E of part 115 of the

Final Rule. In addition, provisions

dealing with voluntary deposits and

purchase orders (which were regulated

in the current part 115) have been

removed in accordance with the

proposed rule and those sections are

reserved for future use.

Comments

Comments on the Proposed Rule

generally concerned the supervised

account and encumbered account

sections of the proposal. In particular,

the respondents focused on the

requirement of an order from a court of

competent jurisdiction in order for the

BIA to (1) supervise an IIM account or

(2) encumber an IIM account to pay a

debt to a third party. We plan to repropose these sections. In the interim, to

maintain some standard for dealing with

adult IIM accounts (which is an ongoing

BIA function), the BIA decided to retain

the sections concerning adult IIM

accounts in the current part 115 in this

subpart B. The one change that was

made in the Final Rule that affects the

provisions retained from the current

part 115 is the addition of a definition

for an ‘‘adult in need of assistance’’

which has been revised from the

proposed rule as discussed in the

comment section of the Subpart A

discussion above.

Subpart C—IIM Accounts: Minors

Summary of Subpart

This subpart deals in some detail with

the procedures related to the

management and supervision of a

minor’s account. A withdrawal from a

minor’s supervised account will be

permitted only under a BIA approved

distribution plan that provides for

expenditures directly related to the

minor’s health, education, or welfare. A

custodial parent, a legal guardian or a

person who the BIA recognizes as

having the control and custody of the

minor, who withdraws funds from a

minor’s supervised account on behalf of

the minor must account to the BIA with

receipts for the use of those funds. The

minor will not have access to

information concerning his/her account.

Procedurally, the provisions state that

information about a minor’s account

will be provided to the custodial

parent(s) or legal guardian(s) in a

quarterly statement of performance;

supervised accounts will be reviewed

annually; and emancipated minors will

have supervised accounts but will have

access to account information and may

receive funds on their own behalf.

Comments

One comment noted that the BIA

should not require minors (or adults)

with supervised accounts to have a

‘‘legal guardian.’’ We respond by

reminding the public that all minor’s

accounts will be automatically

supervised and that legally, a minor

should always have a ‘‘custodial parent’’

or a ‘‘legal guardian’’, unless

emancipated by a court of competent

jurisdiction. There were comments that

information about an account should

not be provided to foster parents. We

accepted those comments with revision.

The BIA will only provide account

information to parents, legal guardians

and emancipated minors. We rejected

those comments received that stated

Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations 7077

that minors, specifically those who have

reached the age of ten or thirteen,

should have access to their account

information. By law, minors are not

legally capable of handling and

managing their financial affairs.

However, account information will be

provided to emancipated minors

although we do not accept the comment

to allow emancipated minors

unrestricted access to their account. All

minors, including emancipated minors,

will have supervised accounts. The BIA

must be kept informed of the current

address information for a minor,

particularly if the minor’s address is

different from that of their parent or

legal guardian.

A concern was raised about the

necessity of obtaining receipts for all

purchases made from those funds

disbursed from a minor’s supervised

account. In addition there were

comments suggesting that we

differentiate between parents and legal

guardians when requiring receipts for

expenditures from a minor’s supervised

account. In response, we note that under

a minor’s distribution plan a parent or

legal guardian will be treated equally

and that receipts will be required for all

expenditures unless a specific provision

in the plan permits a minimal

disbursement for a minor’s

miscellaneous expenditures to be made

without requiring receipts for

purchases. However, we stress that it is

important for the integrity of the minor’s

supervised account that all withdrawals

be appropriately documented.

Comments were received that

encouraged involvement of a parent(s)

or legal guardian(s) in the development

of the minor’s distribution plan. We

note that under normal circumstances,

the parent(s) or legal guardian(s) will be

involved in the development of both the

evaluation plan and the distribution

plan, and should sign the distribution

plan acknowledging that they have

read/reviewed the plan. In addition,

parents and guardians are responsible

for meeting the obligations detailed in

those signed plans. Respondents were

concerned about the potential necessity

to distribute emergency funds from a

minor’s supervised account where that

amount was not included in the

distribution plan. We note that

distribution plans may be amended at

any time for emergencies or a change in

circumstances, depending upon the

needs of the minor. We accept in part

the comments received to place a limit

on the amount of funds to be distributed

from a minor’s supervised account and

on the purposes for which a distribution

may be made. Funds will not be

automatically disbursed from a minor’s

supervised account to create a flow

through account to anyone including a

parent or legal guardian. Rather, the BIA

will consider all available resources to

meet the minor’s needs when evaluating

a request for funds from a minor’s

supervised account and in the

development of the distribution plan.

As a matter of policy, we strongly

discourage the use of a minor’s trust

funds to meet the basic needs of a

minor. All distributions must be made

pursuant to the terms of an approved

distribution plan and receipts for

expenditures must be provided to the

BIA. Finally, there were numerous

comments that the BIA needs to

recognize that there are informal

custody arrangements and foster care

placements for minors with IIM

accounts and that there may be a need

for disbursements from a minor’s

supervised account to a caregiver

(referenced in comments as a ‘‘minor’s

payee’’) to help meet the minor’s needs.

We recognize that minor account

holders may be cared for in informal

living arrangements or in foster care

situations, and that the Secretary may,

in certain circumstances, need to

recognize the caregiver and authorize

limited disbursements that are in the

best interests of the minor from the

minor’s supervised account. Other

concerns raised included access by the

caregiver to account information for a

minor’s supervised account. Account

information will not be provided to the

caregiver due to legal limitations such

as the Privacy Act.

Subpart D—IIM Accounts: Estate

Accounts

Summary of Subpart

This subpart reflects the notion in the

current part 115 of providing for certain

obligations and other expenditures that

are attendant to an Indian decedent’s

estate. This is a new subpart in this

Final Rule; however, its provisions were

included in the Proposed Rule. The

provisions in this subpart mirror the

provisions contained within the Final

Rule for 25 CFR part 15. Particularly,

this subpart identifies when an estate

account is established; how long an

estate account remains open; refers to

heirs to a decedent’s account;

establishes protocols for withdrawing

monies prior to final probate; and

dispositions to those having life estate

interest in income-producing trust or

restricted property.

Comments

Comments on Indian decedents’

estates were captured in our discussions

of part 15, Probate of Indian Estates

above.

Subpart E—IIM Accounts: Hearing

Process for Restricting an IIM Account

Summary of Subpart

This subpart outlines the notice

requirement and hearing process (socalled ‘‘Kennerly’’ process) associated

with placing a restriction on an IIM

account under current §§ 115.102 and

115.104. This subpart outlines the

circumstances under which the BIA will

place a restriction on an IIM account;

information that must be included in a

notice to restrict an account; time lines

for requesting a hearing to challenge

BIA’s decision to restrict an IIM

account; pendency of a restriction

during an appeal; and remedies

available when an administrative error

has been caused by BIA or OTFM.

Comments

We received several comments on this

subpart, including that the BIA should

only require the ‘‘Kennerly’’ process,

described in the final rule in this

subpart, for restricting an IIM account if

there is no valid non-BIA proceeding.

We note in response that the notice

requirement has been in place in the

current regulation for the past 40 years

and, further, we must provide due

process to all account holders before we

take action against their account. We

believe that due process is served (and

our trust responsibility properly

exercised) through the use of the notice

and hearing process. Accordingly, we

did not accept this comment for revision

in the Final Rule. Other comments

recommended that we not place a

restriction on an account until after the

hearing process is completed; that we

add five (5) additional days to the time

periods proposed for placing the

restriction on an account; and that we

extend the time period in which to

request a hearing from 40 days to 90

days. We did not accept these comments

because due process is provided within

the time periods proposed. The funds at

issue when an account is restricted will

be protected and will not be disbursed

until after the hearing process and

appeal period, if any, have ended. One

comment stated that we should explain

that social services staff should not have

the responsibility for collecting debts

from an IIM account. In response, we

note that social service providers are

only involved in the development of a

distribution plan where the BIA’s

decision is to supervise an IIM account,

not when the account is to be

encumbered. Finally, there were

comments involving BIA’s recognition

7078 Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations

of child support awards. Concerns

included honoring excessive awards;

limiting amounts awarded by a court of

competent jurisdiction; and other

comments stating that there should be

no discretion to reduce the amount of a

child support award to be paid from an

IIM account. Consistent with federal

policy, we believe that parents are

responsible for providing support for

their children and that child support

awards are to be determined by courts

of competent jurisdiction. If there is a

dispute regarding a child support award

and we are provided with notice of an

appeal of a child support award, upon

request we will postpone the hearing.

Subpart F—Trust Fund Accounts:

General Information

Summary of Subpart

This subpart discusses the sources of

trust funds that may be deposited into

the Secretary’s trust funds management

system. Particularly, this subpart

explains which trust funds may be

accepted for deposit into a tribal or an

IIM account; the process for depositing

money into an account; the requirement

that the Secretary must conduct an

annual audit on trust funds; and an

explanation of how trust funds

deposited in a trust account earn

income.

Comments

Several respondents suggested that

this subpart should clearly state what

money would be accepted into IIM

accounts while others requested that we

accept specific types of non-trust

monies. In response, we have described

in § 115.702 what sources of trust funds

may be accepted for deposit into a trust

account. We note that the BIA must

have specific authority to accept nontrust monies into a trust account.

Therefore, we will not accept pension

funds, retirement funds, conveyance

fees and child support awards into trust

as requested. Some respondents were

concerned that an annual audit on trust

accounts was not required and others

wanted the inclusion of language

specifying the accounting standards to

be used in the audit.

The Trust Reform Act requires that an

annual audit be conducted on trust

funds. Prescribed auditing standards

will be used in conducting those audits.

In addition, a number of comments

concerned the timeliness of deposits of

trust funds received by the Secretary

into a trust account. Deposits received

by the Secretary on behalf of a tribe or

an individual will be deposited into a

trust account within twenty-four hours,

or no later than the close of business on

the next business day following the

receipt of funds at a location with a

designated federal depository. Another

respondent stated that to require a

compacting tribe to make deposits

payable to the Secretary on behalf of

tribes or individual Indians within a

twenty-four hour time period would

create problems because many tribes are

isolated, live hours away from banks

and ‘‘it is not always practical to do

banking but once a week.’’ We respond

that where a tribe has compacted or

contracted with the federal government

to operate a federal program and the

tribe, operating the federal program on

behalf of the Secretary, receives trust

funds payable to the Secretary on behalf

of the owner of the trust asset pursuant

to a contract that specifies that

payments are to be made to the

Secretary, the tribe must follow the

same standards as the Secretary under

§ 115.708 for the deposit of the trust

funds into a trust account. We also

received an inquiry as to whether

interest earned on trust funds are

automatically reinvested. Interest

earned on trust funds is automatically

reinvested. Although we called for

comments regarding income derived

from tribal operations, we do not

address this issue in the Final Rule. We

have provided a list of all sources of

trust funds that will be accepted by the

Secretary for deposit within the trust

fund management system in § 115.702.

Further, a tribe or individual Indian will

not be allowed to deposit trust funds

received through direct pay into a trust

account, except when provided by law

under 25 U.S.C. 3109. However, we

have amended the regulation to allow

the Secretary to accept for deposit trust

funds made payable to the owner of the

trust asset (direct pay) when submitted

by the payor (e.g., lessee, permittee)

when the payor presents evidence (i.e.,

an envelope marked by the United

States Post Office ‘‘undeliverable’’) that

shows attempted delivery to the tribe or

individual owner of the trust asset. We

are unable to respond in the regulation

to the request for a listing of OTFM

offices, however, a current list of OTFM

offices may be obtained from

Department’s web page at www.doi.gov.

There were several comments

requesting that we identify the tax status

of, and certain agency exemptions for,

trust funds. We are unable to

incorporate these recommendations as

this rule regulates the Department of the

Interior and not other federal agencies

that have a trust responsibility to tribes

and individual Indians. Comments also

indicated that there was general

confusion about when we would accept

funds from another federal agency on

behalf of an individual Indian. By law,

we are only able to take funds from

another federal agency when the federal

agency has appointed the BIA as the

representative payee to receive benefits

on behalf of an individual Indian

because there is no legal guardian to be

appointed as representative payee.

Subpart G—Tribal Accounts

Summary of Subpart

This subpart discusses the trust funds

that are deposited into tribal accounts

and their management by the BIA.

Particularly, the subpart outlines when,

and how, OTFM opens a tribal account;

information regarding a statement of

performance and when it is sent to a

tribe; which trust funds may be

deposited; tribal investments and how

they are managed; procedures for

withdrawing tribal trust funds; and

what happens to unclaimed per capita

funds.

Comments

Respondents suggested that income

under a 25 U.S.C. 450f et seq. contract

or compact should be able to be

deposited into tribal trust accounts so

that they may be invested and the

interest earned reinvested daily. Any

funds appropriated to administer a 25

U.S.C. 450f et seq. contract or compact

are not trust funds, and cannot be

deposited into tribal IIM accounts. If

trust funds are to be deposited into a

trust account, the contract for the sale or

use of trust lands or resources (e.g.,

lease, permit) must specify that

payments be made payable to the

Secretary on behalf of the trust owner

regardless of whether the Secretary

manages the program or a tribe has

compacted or contracted with the

Secretary to operate the federal program.

If a tribe that is compacting or

contracting the federal program which

administers/manages the tribe’s contract

involving trust assets receives trust

funds derived from those trust assets

made payable to the Secretary, then the

contracting or compacting tribe must

deposit those funds into a Treasury

General Account. Any payments made

payable to a tribe (direct pay) will not

be accepted for deposit into a tribal trust

account.

Another comment suggested that time

lines should be prescribed for

processing tribal account withdrawals.

We have provided time lines in

response to this comment. We are

unable to accept the comments

requesting that we give tribes authority

over trust fund investments. By law, the

Secretary is responsible for making all

Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations 7079

trust fund investment decisions.

However, we do accept with revision

those comments requesting consultation

with tribes on an annual basis because

some tribes may not wish to meet with

OTFM on an annual basis. Upon request

by the tribe, OTFM will consult with a

tribe annually regarding investments of

tribal trust funds. Many respondents

were concerned about a tribe requesting

the return of unclaimed per capita

funds. Unclaimed per capita funds will

not automatically be returned to a tribe

after six years. By law, a tribe may

request, but is not required to request,

the return of unclaimed per capita funds

after six years. A decision to make a

request for return of per capita funds is

an internal tribal decision. Funds not

returned to a tribe will remain in an

‘‘unclaimed per capita account.’’ We

have decided to remove several of the

provisions regarding tribal budgets and

budget approvals in response to

comments that these sections were

confusing and seemed to add

requirements that were not required by

law. Tribes must continue to present

budgets for the use of trust funds to the

Secretary when required by law. Tribes

are also encouraged to meet with OTFM

to discuss cash flow needs so that

OTFM may make informed investment

decisions regarding tribal trust funds.

Subpart H—Special Deposit Accounts

Summary of Subpart

This subpart, which replaces part 114,

limits the types of monies that may be

deposited into special deposit accounts.

Particularly, this subpart includes an

explanation of who receives the interest

earned on trust funds in a special

deposit account; when trust funds in a

special deposit account are distributed

to the owner of the funds; whether

administrative or land conveyance fees

paid as federal reimbursements can be

deposited into special deposit accounts;

and what other types of monies may be

deposited into special deposit accounts.

Comments

We received one comment on this

section which requested that

conveyance fees be allowed for deposit

into special deposit accounts. In

response, we restate that the Secretary

only has authority to accept trust funds

into a trust account. Conveyance fees

are not trust funds.

Subpart I—Records

Comments

As previously noted, the provisions

addressing the ownership and

maintenance of trust records associated

with the performance of this part,

contained in subpart H of the Proposed

Rule, have been modified in response to

comments. These provisions are found

in subpart I of the Final Rule.

D. 25 CFR Part 162—Leases and Permits

on Indian Lands

The purpose of this regulation is to

describe the authorities, policies and

procedures the BIA uses to grant,

approve and administer surface leases

and permits on certain Indian land and

Government land. It revises, amends

and replaces the existing part 162 in its

entirety, and implements the American

Indian Agriculture Resource

Management Act (AIARMA), 25 U.S.C.

3703, et seq. with regard to leases on

Indian agricultural land. With respect to

those regulations governing the

administration of leases on specific

reservation lands, the Final Rule will

not effect any substantive changes, but

renumbers those sections. The section

pertaining to the Colorado River

Reservation has been removed at the

request of the tribe.

This regulation balances the

responsibilities the Secretary has as

trustee of Indian land with the need for

tribes and individual Indian landowners

to exercise maximum control over their

Indian agricultural lands. These

regulations will apply to all leases in

effect on the date the regulations take

effect.

General Observations Regarding

Changes From Proposed Rule

The recent enactment of the ILCA

Amendments affects the management of

Indian lands held by multiple Indian

landowners, including both tribes and

individual Indians. The policies

introduced by this legislation require

extensive revisions to the Department’s

regulations affecting the leasing of

individually owned allotted lands.

Specifically, section 219 of the ILCA

Amendments addresses all leases or

other agreements affecting individually

owned allotted lands or any other trust

or restricted lands. Because section 219

of the new statute expressly provides

that it does not amend or modify the

AIARMA, the Department is now

issuing final regulations in part 162 that

address agricultural leasing under the

authority of the AIARMA. The

Department will extensively revise the

regulations governing non-agricultural

leases at a later date. Because the ILCA

Amendments also affect tribes that own

fractional shares of trust or restricted

lands, the Department will not finalize

new regulations affecting nonagricultural leasing on tribal lands until

the full extent of the ILCA Amendments

is determined and new regulations are

re-proposed and additional tribal

consultations are conducted.

Nevertheless, leasing must be able to

continue even on lands that are subject

to the new provisions of the ILCA

Amendments. For these lands, most of

the provisions of the superseded version

of part 162 are republished in subpart F,

modified such that provisions that

conflict with the new definitions or

agricultural leases (now covered in

subpart B) have been deleted. Subpart F

will be replaced with future rules, as

described above. Additionally, in

response to many comments calling for

the BIA to strengthen its enforcement of

leases, sections are included in subpart

F that address the BIA’s duties to collect

delinquent lease payments and enforce

lease violations on trust and restricted

lands. These sections are modeled

directly on the related sections in

subpart B. Both the general provisions

applicable to all leases and the new

subpart F note that, if any of the

provisions of these regulations conflict

with the ILCA Amendments, the statute

will govern.

A few respondents objected to the

implementation of the AIARMA in the

context of the part 162 regulations,

requesting that separate regulations be

issued. We reject this comment. Because

agricultural leases are a specialized form

of the BIA’s overall leasing program and

are administered under the authority of

the AIARMA in combination with the

Indian Long-Term Leasing Act, 25

U.S.C. 415, there is no need for standalone AIARMA regulations.

Agricultural leases are administered

in a manner that is significantly

different from other types of leases on

trust and restricted Indian lands, such

as business and residential leases. The

Department has responded to the

majority of comments addressing both

the proposed leasing and grazing

regulations by significantly

restructuring and clarifying the leasing

regulations in order to address

agricultural leases independently.

Separate subparts C and D, for

residential and business leases,

respectively, are identified and reserved

for future rulemaking after the impact of

the ILCA Amendments is assessed.

The process of separating provisions

pertaining to agricultural leases from

those that govern residential and

business leases, and the consideration of

public comments as described below,

has resulted in extensive refinement,

clarification and restructuring of the

agricultural lease provisions. In its final

form, the provisions pertaining to

agricultural leases do not closely

resemble the final grazing regulations at

part 166 as much as they did in the

7080 Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations

proposed regulations. Every effort has

been made to ensure that both the

agricultural lease provisions of part 162

and the grazing regulations at part 166

are substantively the same, to the

greatest extent possible and practicable,

insofar as they implement the

provisions of the AIARMA.

Additionally, specific provisions

addressing trespass under the AIARMA

that were contained in subpart L of the

Proposed Rule have been deleted in

favor of cross-referencing to the

AIARMA trespass provisions in part

166.

In response to the majority of

comments, the final agricultural leasing

provisions reflect significant deference

to tribal and individual Indian

landowners, such as deferral to tribal

laws and requirements for consultation

between the BIA and the Indian

landowner on all facets of management

and enforcement activities, including

enforcing lease and permit violations

and trespass. The final regulations also

provide more flexibility to the Indian

landowner to negotiate, with the

assistance of the BIA, desirable and

favorable provisions in their leases. The

BIA will provide subsequent guidance,

including model lease language, to

assist Indian landowners in negotiating

their own leases.

The final leasing regulations provide

for more pervasive deference to tribal

law and tribal self-determination, not

only as required under the AIARMA for

grazing and agricultural leasing (subpart

B), but also in the provisions that will

apply to general leasing activities

(subpart A). Several tribes and the NCAI

pressed for more complete deference to

tribal leasing decisions than the

Department believes can be

accommodated under current law,

notwithstanding the Indian SelfDetermination and Education

Assistance Act, 25 U.S.C. 450 et seq. For

example, the NCAI requested that the

Department adopt regulations that

would provide for routine approvals of

tribal short-term leases. However,

existing statutory authorities require

meaningful review by the Secretary in

carrying out the trust responsibility.

Moreover, a rule providing for such

routine approvals of tribal short-term

leases would fail to take into account

those tribes that do not yet have

sufficient policies and procedures in

place to ensure that the trust assets are

properly managed.

Nevertheless, the Department is

committed to speeding up its review,

approval, administration and

enforcement of leases. Throughout these

regulations, reasonable time frames for

action by the BIA have been inserted to

strengthen the management of leases.

For the reasons stated in the preceding

paragraph, under existing law we must

reject those comments seeking

automatic lease approvals if the time

frames are not met.

A few commenters, particularly the

NCAI, requested that the BIA identify

with specificity the individual official

responsible for taking action or making

a decision in any given instance. We

reject these comments, as we believe

such matters are properly addressed in

Bureau and Departmental delegations of

authority, which may be changed as

work load and other factors demand. To

commit to such delegations in

regulations would inflexibly bind the

BIA and Department from addressing

pressing workforce needs in an efficient

and effective manner. The NCAI further

requested that the BIA adopt a ‘‘trust

officer’’ model for managing trust land,

similar to that used in the private sector.

We believe such a model already exists

at the individual BIA agency and field

office level; the agency superintendent

and field representative effectively serve

as the responsible ‘‘trust officer’’

responsible for the administration of

trust land within their jurisdiction.

Consistent with the majority of

comments, the final regulations

continue to provide for direct payment

to Indian landowners for leases on their

trust lands, as long as direct payment is

a specific term in the lease or permit. In

order to ensure that the Secretary can

properly enforce lease and permit

payment terms, leases and permits

authorizing direct payments must

require that tenants maintain

documentary proof of payment. Several

respondents suggested that the Secretary

should require that proof of payment be

submitted to the agency with every

direct payment. However, such a

requirement would be inconsistent with

historic practice and would result in an

unsustainable drain on agency

resources. Absent a system for tracking

such notices, the requirement would not

produce the desired goal of ensuring

prompt enforcement of payment of trust

income. Further, it would be far less

effective than relying on the Indian

landowner to advise the BIA

immediately upon discovering that a

payment has not been made and

requesting enforcement assistance.

Therefore, the final regulations provide

that the Indian landowner notify the

Secretary that a required payment has

not been made. The Secretary then will

take prompt and effective action based

on that specific information. The

Department continues to recognize the

advantages to Indian landowners of

direct payments. However, this

advantage necessarily brings with it

increased responsibility of Indian

landowners to assist in the enforcement

of non-payment of their leases and

permits. With this regulatory change,

Indian landowners who opt for and

negotiate direct payments are clearly

notified of their responsibilities to

notify the BIA of late payments.

Similarly, tenants are notified both by

these regulations and in the lease itself

that documentary proof of payment will

be necessary to demonstrate that a

payment was timely made in the correct

amount due, should there be any

question about a payment.

The Department is not taking on any

obligation to manage or account for

funds paid directly to Indian

landowners that are not actually held in

trust by the United States. This is

consistent with section 102(a) of the

American Indian Trust Management

Reform Act of 1994, 25 U.S.C. 4011.

Although we invited the public to

comment on the question of accounting

for direct payments, no specific

recommendations were received beyond

a general recommendation to collect

proof of payment.

In both general lease and permit

enforcement, as well as in trespass

enforcement, the final leasing

regulations reflect the suggestions of a

large number of commenters to establish

reasonable time frames in which the

BIA will take appropriate enforcement

action, and to reduce the amount of

procedural steps necessary for effective

enforcement. Significantly, the final rule

includes new provisions identifying the

BIA’s responsibility for collecting

delinquent rent payments.

Subpart A—General Provisions

Summary of Subpart

Subpart A addresses the purpose and

scope of part 162 and describes the

general authorities, objectives and

policies the BIA uses to approve, grant,

administer and enforce surface leases of

Indian land. This subpart also defines

key terms used throughout part 162 and

identifies the land, interests in land, and

types of leases covered by part 162. This

subpart describes how tribal laws will

apply to leases, and how records are

maintained that document the leasing of

trust and restricted lands.

Comments

Subpart A of this Final Rule now

includes new provisions addressing the

scope of part 162, policy statements,

and other general provisions not found

in the Proposed Rule. As noted above,

many commenters suggested that the

Final Rule include separate standards

Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations 7081

for different types of leases, including

agricultural, business and residential

leases. In response, this Final Rule

provides for separate subparts for

agricultural leases (subpart B),

residential leases (subpart C), and

business leases (subpart D). Subparts C

and D are reserved for publication at a

later date. Accordingly, we will not

address any of the provisions in subpart

E or elsewhere in the Proposed Rule

concerning residential or business

leases, or the comments relating to those

provisions.

Section 162.101 of the Final Rule

contains definitions of key terms used

throughout part 162. In response to

many comments, we have clarified and

streamlined most of the definitions in

concert with those used in the final

rules at parts 151 and 166. We have

added definitions for day, emancipated

minor, fee interest, immediate family,

interest, minor, mortgage, remainder,

surety, and tenant. Several confusing

terms have been deleted or revised. For

example, we have deleted specific

definitions of appeal bond and surety in

favor of a single definition of bond. In

response to many comments, we

generally have discontinued using the

term lessee in favor of tenant.

Several respondents raised questions

about the scope of the Proposed Rule. In

response, § 162.102 clarifies that only

land and land interests held in trust or

restricted status are covered, and

§ 162.103 defines the types of

agreements covered. Section 162.102(b)

sets forth the general rule with respect

to the leasing of life estates and

remainder interests, with a crossreference to 25 CFR Part 179. The

information in subpart J of the Proposed

Rule concerning fee interests or ‘‘nontrust’’ interests has been relocated to

§ 162.102(c) of this Final Rule. In

addition, the provision in § 162.70 of

the Proposed Rule which recognized

that tribes could lease tribal land

without BIA approval under federal

charters has been moved to § 162.102(d)

of this Final Rule. Finally, § 162.102(e)

of this Final Rule notes that to the

extent part 162 conflicts with the

recently-enacted ILCA Amendments,

the provisions of the ILCA Amendments

will govern. In § 162.103, the Final Rule

expands the cross-references in

§ 162.1(a) of the Proposed Rule, to

distinguish the surface leases and

permits covered by part 162 from other

transactions involving trust or restricted

land.

Many questioned whether the

individual Indian landowners of

undivided interests in fractionated

tracts would need leases from their coowners (i.e., ‘‘owner’s use’’), before

taking possession. In response,

§ 162.104(b) clarifies that an Indian

landowner of an undivided interest may

not take possession without a lease

unless the Indian co-owners give their

permission. We have not accepted the

requests to eliminate the owner’s use

provision in its entirety. This provision

is necessary to ensure protection for,

and to foster cooperation and

negotiation among, all Indian coowners.

Several commenters also expressed

confusion as to how the trespass rules

in subpart L of the Proposed Rule would

apply to leases. As previously noted,

some suggested that failure to pay rent

be treated immediately as trespass. In

response, the special provisions on

trespass have been removed, but those

provisions (as still incorporated in part

166) have been cross-referenced in

§§ 162.106(b) and 162.256 of this Final

Rule. We have rejected the comments

requesting that we treat non payment as

trespass, based on the availability of

contract remedies prior to the

cancellation of the lease. We have

noted, however, that we will treat any

possession of Indian land without a

lease as a trespass, whether or not it

occurs it occurs on Indian agricultural

land.

Several respondents indicated that the

Proposed Rule did not sufficiently

define the BIA’s responsibilities in the

leasing of trust and restricted land;

promote tribal self-determination

through the negotiation of tribal leases

and the administration of reservation

lands under self-determination contracts

or self-governance compacts; or support

tribal sovereignty through the formal

recognition of tribal laws and leasing

policies. We have accepted these

comments. Accordingly, §§ 162.107–

162.108 define our objectives in

granting or approving leases involving

trust or restricted land and our

responsibilities in the administration

and enforcement of such leases, as

noted above. The policies expressed in

§§ 162.107–162.108 are intended to

reflect our strong support for the rights

of Indian landowners, tribal governing

authority, and tribal administration of

BIA programs. In § 162.109(b) we

expressly recognize that tribal laws will

broadly apply to all land under tribal

jurisdiction, and generally allow tribal

laws to supersede or modify the

regulations in part 162 with respect to

leases of tribal land.

In the Proposed Rule, we invited

comments with respect to the

distribution of rents derived from

unitized leases comprised of multiple

tracts with different Indian landowners.

In response to the small number of

comments received, we have combined

§§ 162.17 and 162.102 of the Proposed

Rule in § 162.105 of this Final Rule. We

continue to provide that rents will be

distributed based on the size of the

Indian landowner’s interest in

proportion to the acreage in the entire

lease tract, unless the lease provides

otherwise. We also clarify that

minimum Indian landowner consent

requirements will apply to each tract

separately rather than to the unitized

lease tract as a whole.

Finally, to be consistent with the

regulations published under parts 15,

115, and 166, we have added two

sections addressing the maintenance of

records relating to probate cases. These

provisions, §§ 162.111 and 162.112,

replace subpart M of the Proposed Rule.

Subpart B—Agricultural Leases

Summary of Subpart

Subpart B, consisting of six groupings

of sections, governs agricultural leases

on Indian lands. Under ‘‘General

Provisions’’ are sections addressing the

applicability of tribal laws and policies

to agricultural leases. The sections

under ‘‘How to Obtain a Lease’’ set forth

procedural requirements including who

can grant agricultural leases, how the

BIA approves such leases, the

documentation and recording

requirements for such leases, and the

effective dates of leases and BIA

decisions. ‘‘Lease Requirements’’

includes sections that describe

mandatory lease provisions, the amount

of rent to be paid and the manner of

payment (including late payments and

penalties), improvements, bonds, and

insurance. Under ‘‘Lease

Administration’’ are provisions

governing administrative fees and

amendments, assignments, subleases

and mortgages. ‘‘Lease Enforcement’’

includes sections identifying the BIA’s

responsibilities and time frames for

collection of delinquent rent payments

and other violations of agricultural

leases, lease cancellation procedures,

emergency action and inspections by

the BIA.

Comments

General Provisions

A large number of commenters

questioned provisions in the Proposed

Rule that implemented the AIARMA. As

we noted above and provide with

respect to part 166, we have rejected the

comments suggesting that special

AIARMA regulations be promulgated

independent of the BIA’s leasing and

grazing programs. As noted, the

AIARMA-based trespass provisions in

subpart L of the Proposed Rule have

7082 Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations

been removed, leaving appropriate

cross-references to 25 CFR Part 166.

Many of the respondents were also

concerned about the applicability of

tribal laws and leasing policies. As

indicated above, we have replaced

§ 162.4 of the Proposed Rule with the

more specific § 162.109 in this Final

Rule, to clarify that tribal laws will

broadly apply to all types of leases, but

will supersede or modify our

regulations only in limited

circumstances.

We have moved the AIARMA-based

provisions found in §§ 162.5–162.9 and

§ 162.11 of the Proposed Rule to this

heading in subpart B of the Final Rule.

Consistent with the AIARMA, section

162.200 provides that subpart B will

apply not only to agricultural leases, but

also to business leases that support the

Indian agricultural community. Section

162.201 provides that lands be managed

in accordance with any agricultural

resource management plan that have

been adopted. As required by AIARMA,

§ 162.201(c) broadly authorizes waivers

of regulations that are inconsistent with

any agricultural resource management

plan.

The provisions in §§ 162.5 and 162.9

of the Proposed Rule, relating to the

implementation and enforcement of

tribal laws affecting agricultural land,

have been combined in § 162.202 of this

Final Rule. In response to comments,

§ 162.202(b)(3) includes provisions that

clarify that BIA appearances in tribal

forums may be limited by Departmental

regulations at 43 CFR Part 2, and by

provisions in the AIARMA to preserve

the sovereign immunity of the United

States and limit tribal court review of

BIA actions. Section 162.202(c) broadly

authorizes waivers of regulations that

are inconsistent with tribal laws.

Section 162.6 of the Proposed Rule,

addressing when our standard

regulations can be superseded or

modified by certain types of tribal

leasing policies, has been slightly

modified and redesignated as § 162.203.

It should also be noted that the broad

AIARMA provision authorizing our

approval of an agricultural lease of tribal

land at any rate determined by tribal

governing body has been incorporated

in this Final Rule through standard

regulations, at § 162.222(b), as well as

through tribal policies made applicable

under § 162.203 of the Final Rule.

Although a number of commenters

requested guidance as to how a

superseding leasing policy might be

adopted by a tribe, the Final Rule leaves

the matter to the discretion of each tribe.

The notice provisions in § 162.8 of the

Proposed Rule have been clarified and

extended to Indian landowners in

§ 162.204. Although some commenters

objected to any notice requirement

being placed on tribes, we continue to

require that tribes provide us with

notice of any tribal law or leasing policy

that supersedes or modifies any of the

regulations in part 162, so that we may

provide the notices required by

AIARMA. Finally, § 162.205 clarifies the

provisions in § 162.7 of the Proposed

Rule, authorizing individual Indian

landowners to exempt their land from a

leasing policy which supersedes or

modifies one of our standard regulations

prohibiting tenant preferences, requiring

a bond, or guaranteeing three months

notice before we grant a lease.

Consistent with the AIARMA, we

continue to require that at least 50% of

the Indian landowners request the

exemption and add a new provision that

the exemption be requested each time a

lease is granted or approved. Although

numerous commenters objected to the

exemption provision, these exemption

rights are expressly provided for in

AIARMA and have thus been retained

in this Final Rule.

How To Obtain a Lease

In response to many comments, we

have clarified the circumstances under

which leases can be obtained through

negotiation or advertisement or granted

or approved without an appraisal or

other documented valuation. In doing

so, we have reduced and consolidated

the provisions in subpart C of the

Proposed Rule into §§ 162.206 and

162.212, respectively, in this Final Rule.

Further, we have consolidated the

provisions subpart D of the Proposed

Rule into §§ 162.207–162.210 of the

Final Rule, with several corrective

amendments. The provisions relating to

fair annual rental determinations,

proposed in §§ 162.150–162.151 of the

Proposed Rule, have been consolidated

in § 162.211 of the Final Rule, with a

clarification that fair annual rental

determinations are not needed in cases

where a lease may be approved at less

than a fair annual rental, unless the

Indian landowners request such a

determination. We have also clarified

that the BIA will determine fair annual

rental value for leases on Indian lands

by appraisal, advertisement, competitive

bidding, or any other appropriate

method that complies with the USPAP.

The BIA does not intend to specify in

part 162 the particular method for

appraising Indian land; rather, ensuring

flexibility in choosing an appraisal

method allows the Secretary to most

effectively discharge his responsibility

as trustee.

Many respondents questioned the

proposed provisions that addressed the

granting of leases on fractionated tracts,

including ‘‘owner’s use’’ leases. In

response, the provisions in the Proposed

Rule that indicated that land being used

by an Indian owner of a fractional

interests could be leased to another

party have been modified. Section

162.209(b) provides that we will not

exercise our authority under 25 U.S.C.

§ 380 to grant a lease on behalf of all of

the Indian owners of a fractionated tract

where the Indian co-owners have given

one of the Indian landowners

permission to possess the tract without

a lease.

A number of commenters objected to

the provisions in § 162.12 of the

Proposed Rule that identified the factors

to be used in applying the ‘‘best

interest’’ standard of review for lease

approvals. Some noted that the BIA

incorrectly applied 25 U.S.C. § 415(a).

Others requested that the BIA consider

additional factors beyond those

provided in the statute. In response,

§ 162.214(a)(3) provides that we must

assure ourselves that adequate

consideration has been given to the five

factors identified in 25 U.S.C. § 415,

consistent with the statutory language.

A sixth, non-statutory factor was

suggested by the NCAI and identified in

the Proposed Rule. This factor would

require that we consider any tribal

assessment of potential impacts on

tribal culture and sovereignty. We

received contradictory objections to this

provision as being at once too

paternalistic and yet too deferential to

tribes. Because the sixth factor pertains

primarily to long-term, business and

residential leases, we have deleted it

from the Final Rule for agricultural

leases.

Many commenters requested that we

include a time frame in which we must

make a decision whether to grant or

approve a lease. In response,

§ 162.214(b) requires action within 30

days, so long as the lease is in a form

which has been previously accepted or

approved, and all of the requisite

supporting documents have been

received. Those supporting documents

are generally described in § 162.213,

including a cross-reference to the bond

requirement not found in proposed

§ 162.13, the corresponding provision of

the Proposed Rule.

Many questions were raised about the

effective dates of our decisions to grant

or approve leases. With respect to the

effective date of an agricultural lease,

and the relation between the effective

date of our decision to grant or approve

the lease and the commencement date of

the lease, the provisions in §§ 162.12(c)

and 162.28 of the Proposed Rule have

been consolidated and clarified in

Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations 7083

§ 162.215 of the Final Rule. This section

confirms that our decision can be made

retroactively effective.

In response to numerous comments,

we have significantly revised the

applicability of the appeals process for

decisions to grant or approve leases.

Contrary to § 162.75 and subpart I of the

Proposed Rule, § 162.216 makes a grant

or approval decision effective

immediately, notwithstanding any

appeal that may be filed under 25 CFR

Part 2.

Finally, we received many inquiries

as to why we proposed only to record

leases greater than one year in duration.

We agree with those concerns and will

record all leases. The Proposed Rule

omitted mention of recording permits;

the final rule provides that all permits

will be recorded, as well. The

provisions in §§ 162.14–162.16 of the

Proposed Rule have been consolidated

and clarified in § 162.217, expressly

exempting permits from the recording

requirement.

Lease Requirements

We received many comments

requesting that the BIA be less

prescriptive in mandatory lease

requirements and allow for greater

flexibility in negotiating leases that are

favorable to the Indian landowner. We

have balanced these concerns against

the need for mandatory provisions that

provide sufficient protection of Indian

landowners. Accordingly, under the

heading ‘‘Lease Requirements’’ are

minimal mandatory provisions for

agricultural leases, as well as provisions

addressing matters that we strongly

encourage be negotiated.

The mandatory provisions listed in

§ 162.26 of the Proposed Rule have been

clarified and streamlined in §§ 162.219

and 162.220 of this Final Rule. Many

respondents criticized the provisions

relating to the description of the leased

premises, as found in §§ 162.20 and

162.26(i) of the Proposed Rule, as being

too restrictive for business purposes. We

agree with these comments. In

consolidating these sections in

§ 162.221 of the Final Rule, we state a

clear preference for public or private

surveys, but will accept any legal

description that adequately identifies

the property.

As previously noted in the general

discussion of the changes to part 162,

we have responded to the numerous

comments received regarding direct rent

payments. We are retaining the

authority for direct payments and

requiring tenants to retain

documentation evidencing proof of

payment. The provisions in §§ 162.41–

162.42 and §§ 162.100–162.101 have

been consolidated in § 162.226 of this

Final Rule.

Section § 162.225 addresses late

payments, combining §§ 162.34 and

162.36–162.37 from the Proposed Rule.

In response to the majority of

comments, this section provides that

interest will begin to accrue

immediately after a payment is missed,

and that negotiated late payment

penalties also may be imposed. Section

162.227 allows payments made directly

to the Indian landowners to be made by

any method specified in the lease. This

section also allows payment by personal

or business checks, in accordance with

virtually every comment received on

this issue. To minimize the risk to

Indian landowners where such checks

are dishonored, we have added a

provision in § 162.248(d) stating that a

lease is violated by the dishonoring of

a check, and future payments must be

made by one of the alternative methods

identified in § 162.227.

Several commenters requested that

the BIA allow greater flexibility in

requirements for adjusting rental

payments over the course of a lease. In

response, § 162.223 provides for a

minimum of one adjustment during the

term of an agricultural lease, but Indian

landowners may negotiate additional

adjustments. We received few

comments addressing the adjustment

method and have clarified that the

parties may negotiate the method of

adjustment, with assistance from the

BIA.

A number of comments also

addressed the maximum lease term for

agricultural leases. We have clarified

this information in § 162.229, consistent

with the AIARMA, to state that the

maximum term for an agricultural lease

is ten years, unless otherwise provided

by law, and unless substantial

investment in improvement of the land

justifies extending the term up to 25

years.

Most commenters who addressed

lease amendments, assignments,

subleases, and leasehold mortgages

requested that the BIA approve every

such transaction. We agree that, with

respect to agricultural leases, such

approval continues to be necessary to

protect Indian landowners. Section

162.230 has been amended accordingly,

combining provisions in found in the

Proposed Rule at §§ 162.21–162.25 and

162.87–162.90.

Many respondents requested

additional clarity in the treatment of

improvements to agricultural lands,

both during and after the term of a lease.

We have responded to these comments

in §§ 162.232 and 162.233, by providing

for negotiation of ownership of

improvements in the lease, with

suggestions for favorable terms, and

provisions for BIA enforcement.

Finally, in response to many

comments seeking strengthened

remedies protecting Indian landowners

in the event of lease violations,

§ 162.240 of the Final Rule amplifies the

rights of Indian landowners to negotiate

remedies that may be applied in

addition to those taken by the BIA,

including the possibility that the Indian

landowner may cancel the lease. We

also encourage Indian landowners to

address the matter of tribal court

jurisdiction for the resolution of lease

disputes involving such negotiated

remedies. However, this section

provides that the BIA may not be bound

by such decisions, but we generally will

defer to tribal court proceedings as

appropriate.

Lease Administration

Some commenters found the

organization of the Proposed Rule

confusing because it failed to

distinguish clearly between the review

and processing of a lease, and

subsequent lease amendments,

assignments, subleases, and leasehold

mortgages. In response, we have created

this grouping of sections entitled ‘‘Lease

Administration,’’ which combines the

provisions relating to the review and

processing of amendments, assignments,

subleases, and leasehold mortgages, as

contained in subpart B of the Proposed

Rule, with the provisions relating to

administrative fees, proposed in subpart

G.

With respect to administrative fees

specifically, several commenters felt

that the provisions in subpart G of the

Proposed Rule were unclear as to the

authority of tribes to charge and collect

such fees, whether or not the tribe is

administering the leasing program

under a self-determination contract or

self-governance compact. In response,

§ 162.241 establishes a standard 3% fee,

subject to modification by a tribe or a

discretionary waiver by us, and clarifies

who pays the fee, why it is paid, and

when it is subject to tribal modification.

This provision has a consistent

counterpart in part 166. As indicated

above, the provisions in § 162.114 of the

Proposed Rule, relating to the payment

of other types of fees and charges, have

been relocated to § 162.228 of this Final

Rule.

Many respondents noted that subpart

E of the Proposed Rule, which was

intended to apply only to business

leases, contained general provisions

applicable to other types of leases. We

believe the reorganized structure of part

162 will address these concerns. As

7084 Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations

noted above in the general discussion of

these Final Rules, numerous

commenters suggested that the Final

Regulations include time frames binding

the BIA, with automatic approval of

leases should BIA time frames be

missed. With respect to agricultural

leases, we added time frames to improve

BIA review and approval procedures,

but have rejected the comments

suggesting automatic approval if the BIA

fails to meet the specified time frames.

We have retained the basic structure

and content of the Proposed Rule’s

standard of review provisions for

assignments, subleases and mortgages,

respectively. Additionally, in response

to several comments, we have added a

standard of review provision for lease

amendments at § 162.242. We also

eliminated the provision in the

Proposed Rule that would have required

that a tenant remain liable even after an

assignment is approved, leaving such

matters to negotiation between the

parties. In § 162.45, we have added a

provision stating that amendments,

assignments, subleases, and leasehold

mortgages are immediately effective

upon approval, notwithstanding any

appeal which may be filed under 25

CFR Part 2.

The recording requirement for

leasehold mortgages, as found in

§ 162.22 of the Proposed Rule, has been

extended to all subsequently approved

lease documents by § 162.246 of this

Final Rule.

Lease Enforcement

Many respondents criticized the

enforcement provisions in subpart H of

the Proposed Rule, recommending that

we employ stricter definitions of our

enforcement responsibilities, including

time frames for BIA action. In particular,

commenters urged us to develop very

specific enforcement provisions

governing enforcement of a tenant’s

failure to pay rent. We have accepted

these comments, and have combined

some of the collection provisions in

subpart B of the Proposed Rule with the

enforcement provisions in subpart H of

the Proposed Rule. In response to

several commenters, § 162.248 contains

new provisions specifying the actions

the BIA will take to enforce a tenant’s

failure to pay rent. These actions

include a written notice of violation,

immediate action to recover undisputed

overdue rent prior to lease cancellation,

and the acceptance of partial payments.

Additionally, in § 162.249 we have

added a new provision addressing the

BIA’s authority to assess against

delinquent tenants special fees to cover

the cost of collection. The inspection

provision in § 162.121 of the Proposed

Rule has been strengthened in § 162.250

of the Final Rule, providing that

appropriate investigation will be

initiated within five days of the date on

which the BIA receives notice that a

specific violation has occurred.

Many respondents requested that we

strengthen the provisions by which we

cancel leases for violations. Specifically,

commenters requested that we speed up

the cancellation process to better protect

Indian landowners against financial

losses during the pendency of any

appeal of a cancellation decision. We

have accepted these comments in the

Final Rule. First, the provisions relating

to notices of violations, found in

§§ 162.122–162.124 of the Proposed

Rule, have been consolidated and

clarified in § 162.251 of the Final Rule,

by eliminating the right of a tenant to

appeal a notice of violation other than

by responding to the notice itself. The

provisions in §§ 162.123(c) and

162.125–162.127 of the Proposed Rule

outlining the actions a tenant could take

to cure a violation have been combined

in § 162.252 of the Final Rule, with the

election of remedies to be based in part

on consultation with the Indian

landowners. Second, special

streamlined appeal provisions will be

applied to lease cancellations. For

example, in § 162.253, bonding

requirements for decisions to cancel

leases will differ from those in 25 CFR

Part 2. Additionally, § 162.254 provides

that cancellation decisions will be

stayed only for thirty days pending the

filing of an appeal. Third, the provisions

relating to emergency actions from

§§ 162.128–162.129 of the Proposed

Rule have been consolidated and

strengthened in § 162.255 of the Final

Rule. Finally, § 162.256 provides that

holdover tenants will be treated as

trespassers.

Subpart C (Residential Leases) Is

Reserved

Subpart D (Business Leases) Is Reserved

Subpart E—Special Requirements for

Certain Reservations

Summary of Subpart

Subpart E identifies special

provisions applicable only to leases

made under special acts of Congress that

apply only to certain Indian

reservations. These provisions were in

subpart N of the proposed regulations.

Except for the removal, at the request of

the tribe, of the section pertaining to the

Colorado River Reservation, there have

been no changes from the superseded or

proposed regulations.

Subpart F—Non-Agricultural Leases

Summary of Subpart

As noted above, because of the

enactment of the ILCA Amendments

and the separation of agricultural leases

into a distinct subpart, the BIA will

promulgate new regulations for business

and residential leases in the future.

Until then, such leases must continue

under existing authority. Therefore, new

subpart F contains the general leasing

authorities from the superseded

regulations at 25 CFR 162.2–162.10, and

§§ 162.12–162.13. In response to the

many comments requesting stronger

provisions for collection of lease rent

and enforcement of lease provisions,

subpart F contains new collection and

enforcement provisions for nonagricultural leases, modeled on those in

subpart B. Subpart F will be withdrawn

when the new business and residential

lease subparts are issued.

E. 25 CFR Part 166—Grazing Permits on

Indian Lands

The purpose of this part is to describe

the authorities, policies and procedures

the Secretary uses to grant, approve and

administer grazing permits on

agricultural lands that are restricted

against alienation or are held by the

United States in trust for federally

recognized Indian tribes and individual

Indians, as well as certain lands owned

by the federal government. It revises and

entirely replaces the existing part 166,

and implements the AIARMA with

regard to grazing permits on Indian

agricultural land and education in

agriculture management. We have taken

care to ensure consistency of related

provisions in both parts 166 and 162

that implement the AIARMA.

Part 166 balances the Secretary’s

responsibilities as trustee of Indian land

and resources with the need for Indian

tribes and individual Indian landowners

to exercise control over their

agricultural trust lands and business

affairs. Part 166 is organized to include

ten subparts for the convenience of the

reader. The expanded sections clarify

existing policies and procedures

governing the administration of grazing

permits on Indian agricultural lands and

is intended to bring consistency to the

administration of grazing permits by the

BIA. Part 166 does not address leasing

of any type, nor does it address

permitting for purposes other than

grazing. Leasing of Indian lands is

covered in part 162 of 25 CFR.

General Observations Regarding

Changes From Proposed Rule

The Final Rule follows the format

used in the Proposed Rule. Specific

Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations 7085

changes and responses to significant

comments are outlined below.

Subpart A—Purpose, Scope, and

Definitions

Summary of Subpart

Subpart A addresses the purpose and

scope of part 166 and describes the

authorities, policies, and procedures the

Secretary uses to approve, grant, and

administer grazing permits of Indian

agricultural land. This subpart also

defines key terms used throughout part

166. These terms are consistent with

those found in the AIARMA.

Comments

As we noted in our general discussion

of the final regulation and our

discussion of part 162, several

commenters recommended that the BIA

develop a stand-alone rule to implement

the AIARMA exclusively. This

recommendation was not accepted. Part

166 fully implements the AIARMA as it

pertains to grazing permits on Indian

land.

One tribe recommended that the Final

Rule not impact tribal grazing lands

currently governed by other parts of

Title 25 of the Code of Federal

Regulations. This recommendation was

accepted. Section 166.1(c) was added to

clarify that tribal grazing programs

authorized under separate statutory

authority are not subject to part 166.

Several respondents requested

clarification of definitions including

‘‘conservation practices,’’ ‘‘fair annual

rental,’’ ‘‘majority interest,’’ ‘‘on-and-off

grazing permit,’’ ‘‘owner’s use,’’ and

‘‘parcel.’’ These comment were accepted

and the revisions have been

incorporated into the definitions found

in subpart A. Also in response to several

comments, all the definitions were

reviewed and revised to maintain

consistency with the AIARMA and part

162.

Subpart B—Tribal Policies and Laws

Pertaining to Permits

Summary of Subpart

Under subpart B, tribal laws and

ordinances, including laws regulating

the environment, cultural or historic

preservation, land use, and other

activities under tribal jurisdiction, apply

to grazing permits on Indian agricultural

lands unless such tribal laws and

ordinances are prohibited by federal

law. Tribes are responsible for enforcing

tribal laws and ordinances pertaining to

Indian agricultural lands with the

assistance of the Secretary.

Consistent with the AIARMA, this

subpart makes clear that when

authorized by an appropriate tribal

resolution, the Secretary will comply

with certain general tribal policies

pertaining to permitting on Indian

agricultural lands. Also consistent with

the AIARMA, subpart B provides that

individual Indian landowners who have

at least a 50% interest in a fractionated

tract of Indian land can exempt their

Indian land from the Secretary’s

implementation of these certain general

tribal policies by submitting a written

request to the BIA.

Comments

Similar to part 162, many comments

questioned provisions of part 166 that

allow individual Indian land owners to

exempt their lands from certain general

tribal policies pertaining to permitting

on Indian agricultural lands. Comments

also recommended that tribes should

not be authorized to define ‘‘highly

fractionated undivided heirship lands.’’

These comments were not accepted.

Section 3715(b) of the AIARMA

authorizes tribes to establish certain

general tribal policies pertaining to

permitting on Indian agricultural lands

through an appropriate tribal resolution

which also includes the authorization of

tribes to define ‘‘highly fractionated

undivided heirship lands’’ for

notification purposes. Section 3715(c)(3)

of the AIARMA authorizes individual

Indian landowners who have at least a

50% interest in a fractionated tract of

Indian land to exempt their Indian land

from the Secretary’s implementation of

these certain general tribal policies

pertaining to permitting on Indian

agricultural lands by submitting a

written request to the BIA. Part 166 fully

complies with these provisions of the

AIARMA.

Many comments recommended that

tribes not be required to notify the BIA

when new tribal laws or policies are

enacted. These comments were not

accepted. Section 3712(b) of the

AIARMA requires the Secretary to

provide notice of tribal laws or policies

to persons or entities undertaking

activities on Indian agricultural lands. It

is reasonable to require tribes to notify

the BIA of new applicable tribal laws or

policies so that the Secretary may

comply with the AIARMA. This notice

requirement does not invalidate tribal

laws or policies if tribes do not provide

the BIA with notice of such new laws

or policies. Finally, in response to

comments, a provision was added in

§ 166.104 that states the BIA will notify

affected Indian landowners, in addition

to permittees, of new applicable tribal

laws or policies.

Subpart C—Permit Requirements

Summary of Subpart

This subpart describes general

requirements for obtaining a grazing

permit, obtaining a grazing permit

(leasehold) mortgage, modifying and

assigning a grazing permit, and

subpermitting of an existing grazing

permit. This subpart also recognizes the

authority of tribes to determine the

duration of permits on tribal lands.

Pursuant to the AIARMA, 25 USC

3715(a), subpart C provides that grazing

permits would be generally granted for

a period of ten years unless a longer

term of up to 25 years is appropriate.

Subpart C recognizes that the

Secretary has authority to grant or

approve only permits of trust interests

in Indian lands. Subpart C also makes

clear that to ensure the preservation and

proper use of trust lands, the Secretary

requires permittees to conduct grazing

operations in accordance with tribal

goals and priorities for multiple use,

sustained yield, agricultural resource

management planning, and sound

conservation practices. This subpart

further requires permittees to fulfill all

financial obligations to the Indian

landowners and to conduct only those

activities authorized by the grazing

permit. Failure by a permittee to meet

these expectations may result in an

imposition of fines or penalties under

subpart H, ‘‘Permit Violations,’’ or

subpart I, ‘‘Trespass,’’ in order to protect

the interests of the Indian landowners.

Comments

Several comments recommended a

clarification of whether the BIA must

approve tribal permits. The

recommendation was accepted.

Clarifications were made in § 166.1 of

subpart A which describe specific

circumstances for which Secretarial

approval is not required for tribal

permits.

Many respondents recommended that

the regulations provide protection to

Indian landowners so that their land

may not be subpermitted at higher rates

without a commensurate benefit to the

Indian landowners. These

recommendations were accepted.

Section 166.229 provides protection to

the Indian landowner by requiring BIA

approval and the written consent of all

parties to the permit (including Indian

landowners) prior to an amendment,

modification, assignment, transfer, or

subpermit.

The proposal to eliminate the ‘‘onand-off’’ grazing permit system that

allowed for the administration of range

units that involve both trust and nontrust lands was the subject of many

7086 Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations

concerns. These respondents raised

concerns about prudent range

management practices where grazing

trust land is permitted adjacent to nontrust land where grazing also occurs.

These comments were accepted. A new

provision, § 166.308, was added to

allow the modification of the number of

animals on permitted Indian land in

order to accommodate adjacent nontrust lands so long as the conservation

plan and the permit for the permitted

Indian land accounts for this practice.

However, the Secretary has no

management authority over non-trust

lands and will not approve grazing on

non-trust lands.

The non-trust interest provisions

previously located in subpart C of the

Proposed Rule was eliminated. A

discussion of the Secretary’s

responsibility regarding non-trust

interest is now found in § 166.1.

A small number of comments

recommended that leasehold mortgages

not be allowed on grazing permits.

Because such mortgages can be an

important mechanism for economic

development, these comments were not

accepted. Section 166.223 preserves the

option of mortgages on the permitted

interest for those wishing to do so. Such

mortgages apply only to the permit

interest, not the interest in Indian land,

and are a valid source of secured

lending. The BIA recognizes that

leasehold mortgages should be available

where the parties to the permit agree.

Mortgaging a permit interest is not

required, and the parties to the permit

remain free to negotiate a provision to

allow or disallow such mortgages.

Several comments recommended that

part 166 contain a 30-day time frame for

notifying permittees of the removal of

tribal land from a range unit. These

comments were not accepted.

Permittees require a reasonable time to

make other arrangements for their

livestock when tribal lands are removed

from a range unit. Thus, § 166.228

continues the current 180-day notice

requirement.

Several comments recommended that

tribes be responsible for conducting

their own appraisals and valuations.

While the comments have merit, the

Secretary has a trust responsibility to

ensure that appropriate valuation is

obtained for each permit. Tribes may

conduct their own valuations in

addition to valuations required by part

166.

Several comments recommended that

the BIA should not limit valuation

methods to appraisals. These comments

were accepted. Section 166.401 was rewritten to clarify that additional

valuation methods may be employed as

appropriate if consistent with the

Uniform Standards of Professional

Appraisal Practices (USPAP).

Many comments recommended that

emancipated minors be recognized as

adults and be authorized to grant

permits on their own behalf. These

comments were accepted. Section

166.202 was re-written to enable

emancipated minors to grant grazing

permits on their own behalf.

A number of respondents

recommended that part 166 clarify the

Indian landowner’s responsibility in

negotiating and advertising permits.

These comments were accepted.

Sections 166.220 and 166.221 were

clarified to reflect that Indian

landowners may negotiate permits and

advertise for bids. The BIA will

continue to assist Indian landowners

with negotiations and advertisement or

negotiate or advertise on behalf of

Indian landowners when requested.

Subpart D—Land and Operations

Management

Summary of Subpart

Subpart D, ‘‘Land Operations and

Management,’’ describes how the BIA

will establish range units and grazing

capacity in consultation with Indian

landowners.

All grazing permits issued under

subpart D must be consistent with an

agricultural resource management plan

prepared in accordance with § 3711(b)

of the AIARMA by a tribe or by the BIA

in close consultation with a tribe. To

ensure that a permittee’s intended

objectives regarding animal husbandry

and other grazing issues represent

sound practice, § 166.312 requires that a

conservation management plan be

developed with the permittee for each

permit. The conservation management

plan must be consistent with the tribe’s

approved agricultural resource

management plan.

Comments

Several comments recommended that

the Final Rule include an ‘‘on-and-off’’

grazing permit that allows the number

of animals and/or season of use to be

modified on the permitted land if

adjacent trust or non-trust rangelands

are used. These comments were

accepted. Section 166.308 of this

subpart describes how the number of

animals and/or adjacent trust or nontrust rangelands may be included in an

‘‘on-and-off’’ grazing permit.

Several comments recommended that

the final rule accommodate tribes that

wish to decide livestock ownership

requirements on tribal land, including

those pertaining to non-Indian cattle

owners and Indian cattle enterprises.

These recommendations were accepted.

A new provision, § 166.309, was added

to support the tribe’s authority to

determine tribal livestock ownership

requirements on tribal lands.

Several respondents recommended

that conservation plans not be

developed by permittees, and that tribes

should be included when preparing and

evaluating conservation plans. Many

also recommended that part 166 provide

greater specificity on how tribes should

develop their agriculture resource

management plans. Section 166.312

provides that conservation plans will be

developed with the permittee for each

permit and must be approved by the

BIA prior to issuance of the permit. The

conservation plan must also be

consistent with the tribe’s agriculture

resource management plans in

accordance with the AIARMA. As

written, § 166.312 does not mandate

options by which tribes may fund or

contract plan development in order to

maintain flexibility.

Several commenters recommended

that part 166 identify who would be

liable for completing or maintaining a

conservation practice through a USDA

cost share program or other similar

program if the permittee no longer holds

the permit. These comments were

accepted. A new provision, § 166.315,

was added that requires the parties to

the permit to negotiate and identify

which party will be responsible for

completing and/or maintaining a

conservation practice should the permit

expire or be canceled.

Subpart E—Grazing Rental Rates,

Payments, and Late Payment

Collections

Summary of Subpart

Subpart E, ‘‘Grazing Rental Rates,

Payments, and Late Payment

Collections’’ preserves the ability of

tribes to establish grazing rental rates on

tribal lands. The BIA continues to set

the grazing rental rates for individually

owned Indian land. This subpart

clarifies the procedures by which tribes

may set grazing rental rates higher or

lower than the BIA’s established fair

annual rental rate.

As trustee, the Secretary must

determine the fair annual rental value of

Indian trust lands in order to assist

Indian landowners in negotiating

permits with potential permittees and to

determine if a permit is in the best

interest of the Indian landowner.

Subpart E clarifies that the BIA will

determine fair annual rental value for

grazing permits on Indian agricultural

lands by appraisal, advertisement,

Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations 7087

competitive bidding, or any other

appropriate method that complies with

the USPAP. The BIA does not intend to

specify in part 166 the particular

method for appraising agricultural land;

rather, ensuring flexibility in choosing

an appraisal method allows the

Secretary to most effectively discharge

his responsibility as trustee.

Subpart E continues the practice of

direct payments to Indian landowners,

and requires adequate proof of payment.

In § 166.424, the BIA will prorate

grazing rental payments made to each

Indian landowner according to the

forage production that each parcel of

Indian land contributes to the permit,

annual rental rate of each parcel, and

the Indian landowner’s interest in each

parcel.

Comments

Many comments recommended that

the BIA clarify and expand payment

methods to allow greater flexibility for

landowners such as by allowing rental

payments by electronic funds transfer,

personal, and business checks. These

comments were accepted. In addition,

§ 166.419(c) allows for partial rental

payments only under special

circumstances with the written consent

of the parties to the permit and the BIA

approval when necessary to obtain the

maximum payment possible for the

Indian landowner.

Many comments were received about

the BIA’s obligation to collect late rental

payments owed to Indian landowners.

These comments were accepted. Part

166 includes new provisions that

describe the BIA’s responsibility in

collecting late rental payments. For

example, § 166.419 describes the

collection actions the BIA will take

(including canceling the permit,

assessing payment penalties, interest,

and administrative fees, and referring

unpaid debts to the United States

Department of Treasury for collection)

against a permittee to collect on a late

payment. The NCAI recommended that

the BIA adopt a collection process from

another federal agency that would

initiate trespass action immediately for

non-payment of rental payments. This

recommendation was not accepted

because permits must be canceled

before a permittee can be determined to

be in trespass.

Subpart F—Administrative and Tribal

Fees

Summary of Subpart

Subpart F, ‘‘Administrative and Tribal

Fees,’’ provides a schedule of

administrative fees based on the dollar

value of the permit. This subpart

provides a minimum and maximum

administrative fee amount. The BIA

continues to be able to waive such

administrative fees. This subpart also

acknowledges that tribes may establish

and collect their own administrative

fees in addition to administrative fees

assessed by the BIA.

Comments

Several comments recommended that

the BIA use a flat administrative fee rate

to charge permittees for the

administration of permits. These

comments were accepted. The BIA will

charge a flat three percent

administrative fee based on the annual

grazing rental to cover costs associated

with the performance of administrative

duties. The existing minimum and

maximum administrative fees described

in the proposed regulation were

retained in § 166.501(b).

Subpart G—Bonding and Insurance

Requirements

Summary of Subpart

Subpart G, ‘‘Bonding and Insurance

Requirements,’’ clarifies current BIA

practices by requiring that a bond be

provided for each permit issued to

ensure performance and compliance

with permit terms. Upon request of an

Indian landowner, the BIA may waive

the bond requirement. For grazing

permits on tribal lands, this subpart

recognizes tribal authority to negotiate

the form of the bond.

Comments

Many comments recommended that

part 166 include bonding requirements

that address overgrazing on Indian

lands. These comments were accepted.

Section 166.601(a)(4) as described in the

proposed regulation was retained and

allows a bond to be applied to the costs

of restoration and reclamation of Indian

land damaged by a permittee. Also,

§ 166.602(b) states that Indian

landowners may negotiate a permit term

that specifies the use of any bond forms

described in § 166.602(a).

Several comments recommended that

the BIA pay interest on cash bonds.

These comments were not accepted.

Cash bonds are not trust funds and are

not administered as trust funds, and

therefore are ineligible for interest

payments without additional statutory

authority.

Subpart H—Permit Violations

Summary of Subpart

Subpart H, ‘‘Permit Violations,’’

provides for Secretarial action should

the BIA learn that a violation of the

terms of a grazing permit may have

occurred.

Comments

Several comments recommended that

grazing unit inspections by the BIA for

permit compliance be required more

often than one time per year. These

comments were not accepted. Due to the

varying circumstances of each range

unit, flexibility in grazing unit

inspections must be maintained. While

the BIA intends to increase its ability to

monitor range units for permit

compliance, the BIA must continue to

rely on information provided by Indian

landowners. Thus, § 166.703(a) was

added to clarify that Indian landowners

may contact the BIA to request that

appropriate enforcement action be taken

by the BIA should an Indian landowner

believe that a violation has occurred.

Several comments recommended that

the final rule support the tribe’s

authority to adopt its own appeal

process for range unit violations. These

comments were accepted. Section

166.702 was modified so that the parties

to a grazing permit may negotiate a

provision in the permit that would defer

to tribal remedies for permit violations.

Subpart I—Trespass

Summary of Subpart

Subpart I, ‘‘Trespass,’’ defines

trespass under a grazing permit to

include any unauthorized occupancy,

use of or action on Indian agricultural

or government lands assigned to the

control of a tribe. This subpart describes

the process for trespass notification,

enforcement, actions, penalties,

damages, and costs.

Comments

Many comments recommended that

part 166 should include a trespass

inspection schedule. These comments

were not accepted. As with grazing unit

inspections under subpart H, flexibility

in inspections must be maintained to

take into account varying range unit

circumstances and the need to rely on

Indian landowners. Part 166 provides

that the BIA will continue to act on

specific information about trespass on

Indian agricultural lands. Section

166.801 clarifies our obligation to

investigate and respond to allegations of

trespass.

Several comments recommended that

penalties received from a grazing

trespass be paid directly to the

permittee. These comments were

partially accepted. Section 3713(c) of

the AIARMA authorizes the payment of

proceeds from trespass for the loss of

forage or other damage. However, the

7088 Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations

AIARMA is unclear as to whether

permittees are to receive all or some of

such proceeds. The BIA recognizes that

the loss of forage or other damage is

often sustained by the permittee. In

order to provide for trespass payments

to permittees (as an affected party under

section 166.818) for the loss of forage or

damage due to trespass, the parties to

the permit may include a trespass

reimbursement provision in the permit

that allows for such reimbursement.

One comment recommended the final

rule should not suggest that tribes are

required to adopt the trespass

provisions of part 166 in order to secure

tribal trespass jurisdiction. This

comment was accepted. Section

166.802(b) was added to specifically

recognize the authority of tribes to take

any trespass action tribal law may

allow.

Subpart J—Agriculture Education,

Education Assistance, Recruitment, and

Training

Summary of Subpart

Subpart J, Agriculture Education,

Education Assistance, Recruitment, and

Training, outlines the provisions for

implementing subchapter II of the

AIARMA, Education in Agriculture

Management.

Comments

Many comments recommended that

students receive one year of funding for

one year worked in the agricultural

education program in accordance with

the AIARMA. This comment was

accepted. Section 166.901(f)(3) was

changed to support the requirement that

students enter into an obligated service

agreement to serve as a professional

resource manager or agriculture-related

professional with an approved

organization for one year in exchange

for each year in the program.

Subpart K—Records

As noted previously, new provisions

have been added addressing the

ownership and maintenance of trust

records associated with the performance

of this part. These provisions replace

those in subpart K of the Proposed Rule.

IV. Procedural Requirements

A. Review Under Executive Order 12866

Under Executive Order 12866 (58 FR

51735, October 4, 1993), OMB must

determine whether the regulatory action

is ‘‘significant’’ and therefore subject to

the requirements of the Executive Order.

The Order defines ‘‘significant

regulatory action’’ as one that is likely

to result in a rule that may:

(1) Have an annual effect on the

economy of $100 million or more or

adversely affect in a material way the

economy, a sector of the economy,

productivity, competition, jobs, the

environment, public health or safety, or

State, local, or tribal governments or

communities;

(2) Create a serious inconsistency or

otherwise interfere with an action taken

or planned by another agency;

(3) Materially alter the budgetary

impact of entitlements, grants, user fees,

or loan programs or the rights and

obligations of recipients thereof; or

(4) Raise novel legal or policy issues

arising out of legal mandates, the

President’s priorities, or the principles

set forth in the Executive Order.

Accordingly, OMB has determined

that this rule is not a significant

regulatory action and is largely

administrative and technical in nature.

The rule describes how the federal

government will administer its trust

responsibility in managing the trust

fund accounts. Thus, the impact of the

rule is confined to the federal

government and the Indian trust

beneficiaries and does not impose a

compliance burden on the economy

generally. The Department did submit

the entire Proposed Rule for review by

the Office of Information and Regulatory

Affairs of the Office of Management and

Budget (OMB) as a significant policy

matter impacting all federallyrecognized Indian tribes and individual

Indians. This decision was made

because of the magnitude of the monies

involved in Indian trust matters and the

notion that any revisions to existing

regulations that impact trust account

management could have significant

impacts on tribal governments,

communities and individual Indians. In

particular, the Department conducted an

economic analysis of the revisions to

part 115 and found that there were

significant benefits in management,

security and reporting of trust accounts

and only small increases on tribal

governments or individual Indians. The

increased benefits are better

identification of funds, ability to gain

performance reports on tribal or

individual accounts, clarifications in

what funds could be deposited into

such accounts, better distribution

procedures, and clarifications on when

and how such accounts could be

restricted or otherwise encumbered. The

revisions to part 115 were found to have

potential for administrative savings.

B. Review Under Executive Order 12988

With respect to the review of existing

regulations and the promulgation of

new regulations, section 3(a) of

Executive Order 12988, ‘‘Civil Justice

Reform,’’ 61 FR 4729 (February 7, 1996),

imposes on Executive agencies the

general duty to adhere to the following

requirements: (1) Eliminate drafting

errors and ambiguity; (2) write

regulations to minimize litigation; and

(3) provide a clear legal standard for

affected conduct rather than a general

standard and promote simplification

and burden reduction. With regard to

the review required by section 3(a),

section (b) of Executive Order 12988

specifically requires that Executive

agencies make every reasonable effort to

ensure that the regulation: (1) Clearly

specifies the preemptive effect, if any;

(2) clearly specifies any effect on

existing federal law or regulation; (3)

provides a clear legal standard for

affected conduct while promoting

simplification and burden reduction; (4)

specifies the retroactive effect, if any; (5)

adequately defines key terms; and (6)

addresses other important issues

affecting clarity and general

draftsmanship under any guidelines

issued by the Attorney General. Section

3(c) of Executive Order 12988 requires

Executive agencies to review regulations

in light of applicable standards in

section 3(a) and section 3(b) to

determine whether they are met or it is

unreasonable to meet one or more of

them. The Department of the Interior

has determined that, to the extent

permitted by law, the proposed

regulation meets the relevant standards

of Executive Order 12988.

C. Review Under the Regulatory

Flexibility Act

This rule was reviewed under the

Regulatory Flexibility Act, 5 U.S.C. 601

et seq., which requires preparation of a

regulatory flexibility analysis for any

rule which is likely to have significant

economic impact on a substantial

number of small entities. This rule

streamlines the Department’s policies,

procedures, provisions and clauses that

apply to certain Indian trust resources.

Indian tribes are not small entities

under the Regulatory Flexibility Act.

Any impacts on identified small entities

affected by this rulemaking are minimal

as they would concern a small number

of farmers, ranchers, and individuals

doing business on Indian lands.

Accordingly, the Department of the

Interior has determined that this

regulation will not have a significant

economic impact on a substantial

number of small entities, and, therefore,

no regulatory flexibility analysis has

been prepared.

Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations 7089

D. Review Under the Small Business

Regulatory Enforcement Fairness Act of

1996 (SBREFA)

This rule is not a major rule as

defined by section 804 of the Small

Business Regulatory Enforcement

Fairness Act of 1996. This rule will not

result in an annual effect on the

economy of $100 million or more. The

revised parts represent programs that

are ongoing within the BIA and no new

monies are being introduced into the

stream of commerce. This rule will not

result in a major increase in costs or

prices. The effect of this rulemaking will

be to streamline ongoing policies,

procedures and management operations

of the BIA in their handling of tribal and

individual Indian trust resources. No

increases in costs for administration

will, therefore, be realized and no prices

would be impacted through these

administrative and technical

clarifications of existing field practice.

This rulemaking will not result in any

significant adverse effects on

competition, employment, investment,

productivity, innovation, or on the

ability of the United States-based

companies to compete with foreignbased companies in domestic and

export markets. The impact of the

rulemaking will be realized by tribal

governments and individual Indians

having a protected trust resource. These

administrative and technical

clarifications of Departmental policy

and procedure will not otherwise have

a significant impact on any other small

businesses or enterprises.

E. Review Under the Paperwork

Reduction Act

This rulemaking requires an

information collection from 10 or more

parties and a submission under the

Paperwork Reduction Act of 1995,

Public Law 104–13, is required.

Accordingly, the Department prepared

an OMB form 83–I for review and

approval by OMB. Having reviewed the

submissions of the Department with

respect to the burden hours of each part

of this rulemaking, along with any

comments that were submitted by the

reviewing public, OMB has approved

the information collection requirements

contained in this rulemaking and has

assigned OMB control number 1076–

0154.

F. Review Under Executive Order

13132—Federalism

This rule does not have substantial

direct effects on the States, on the

relationship between the national

government and the States, or on the

distribution of power and

responsibilities among the various

levels of government. While this rule

will impact tribal governments, there is

no Federalism impact on the trust

relationship or balance of power

between the United States government

and the various tribal governments

affected by this rulemaking. Therefore,

in accordance with Executive Order

13132, it is determined that this rule has

no sufficient federalism implications to

warrant the preparation of a Federalism

Assessment.

G. Review Under the National

Environmental Policy Act of 1969

This rule does not constitute a major

federal action significantly affecting the

quality of the human environment.

Therefore, neither an Environmental

Assessment nor an Environmental

Impact Statement is necessary for this

rule.

H. Review Under the Unfunded

Mandates Reform Act of 1995

Title II of the Unfunded Mandates

Reform Act of 1995, Public Law 104–4,

establishes requirements for federal

agencies to assess the effects of their

regulatory actions on state, local, and

tribal governments and the private

sector. Under section 202 of the Act, the

Department generally must prepare a

written statement, including a costbenefit analysis, for proposed and final

rules with ‘‘federal mandates’’ that may

result in expenditures to state, local,

and tribal governments, in the aggregate,

or to the private sector, of $100 million

or more in any one year. The

Department, however, determined that

the rulemaking would uniquely affect

tribal governments and, accordingly,

followed Departmental and

Administration protocols in consulting

with tribal governments on this

rulemaking. See discussion on

consultations found in the Background

section of this preamble. These

consultations were in keeping with the

President’s Executive Order 13084,

‘‘Consultation and Coordination with

Indian Tribal Governments.’’

List of Subjects

25 CFR Part 15

Estates, Indians—law.

25 CFR Part 114

Accounting, Indians—business and

finance.

25 CFR Part 115

Administrative practice and

procedure, Indians—business and

finance.

25 CFR Part 162

Indians—lands.

25 CFR Part 166

Grazing lands, Indians—lands,

Livestock.

For the reasons stated in the

preamble, the Department of the

Interior, Bureau of Indian Affairs,

amends 25 CFR as follows:

PART 15—PROBATE OF INDIAN

ESTATES, EXCEPT FOR MEMBERS OF

THE FIVE CIVILIZED TRIBES

1. Part 15 is revised to read as follows:

Subpart A—Introduction

Sec.

15.1 What is the purpose of this part?

15.2 What terms do I need to know?

15.3 Will the Secretary probate all the

property in Indian estates?

15.4 How does the probate process work?

Subpart B—Starting the Probate Process

15.101 How do I begin the BIA probate

process?

15.102 May I notify the BIA of a death if I

am not related to the decedent?

15.103 When should the BIA be notified of

a death?

15.104 What other documents does the BIA

need to process a probate package?

15.105 Will the BIA wait to begin the

probate process until it is notified of the

decedent’s death?

15.106 Can I get emergency assistance for

funeral services from the decedent’s IIM

account?

15.107 Who prepares an Indian probate

package?

15.108 What agency prepares the probate

package if the decedent was not an

enrolled member of a tribe or is a

member of more than one tribe?

15.109 Can a probable heir or beneficiary

give up his/her interest in trust or

restricted lands or trust funds?

Subpart C—Preparing the Probate Package

15.201 What will the BIA do with the

documents that I provide?

15.202 What must the complete probate

package contain?

15.203 What happens after the BIA prepares

the probate package?

15.204 After the probate package has been

sent to a BIA deciding official, may I still

request a formal hearing with an ALJ?

15.205 When will the BIA refer a probate to

the OHA?

15.206 Is there a summary process for

distributing an estate with only trust

cash assets?

Subpart D—Probate Processing, Claims

and Distributions

15.301 What does the attorney decision

maker do with the probate package?

15.302 What law is used by the deciding

official to determine the distribution of

the trust estate?

15.303 If the decedent owed me money,

how do I file a claim against the estate?

7090 Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations

15.304 How does the BIA deciding official

determine if a claim will be allowed and

paid?

15.305 What claims will be paid first?

15.306 Can the BIA deciding official reduce

the amount of claims?

15.307 What if there is not enough money

in the decedent’s IIM account to pay all

claims?

15.308 Will the BIA use future income to

pay claims?

15.309 Will the BIA deciding official

authorize payment of interest or

penalties accruing after the date of

death?

15.310 When will the BIA deciding official

issue a decision on the probate?

15.311 What is in the written decision/

order of the BIA deciding official?

15.312 What happens after the decision is

made?

Subpart E—Appeals

15.401 May I appeal the decision of the BIA

deciding official?

15.402 How do I file an appeal of the

decision/order?

15.403 How long do I have to file an

appeal?

15.404 What will happen to the estate if an

appeal is filed?

15.405 How does the ALJ review a decision

issued by a BIA deciding official?

Subpart F—Information and Records

15.501 If I have a question about a probate

that has been assigned to a BIA deciding

official, may I contact the deciding

official directly?

15.502 How can I find out the status of a

probate?

15.503 Who owns the records associated

with this part?

15.504 How must records associated with

this part be preserved?

Authority: Secs. 1, 2, 36 Stat. 855, as

amended, 856, as amended, sec. 1, 38 Stat.

588, 42 Stat. 1185, as amended, secs. 1, 2, 56

Stat. 1021, 1022, 25 U.S.C. 372, 373, 374,

373a, 373b; Federal Records Act, as

amended, 44 U.S.C. § 3101, et seq. (1950).

Cross reference: For special rules applying

to proceedings in Indian Probate

(Determination of Heirs and Approval of

Wills, Except for Members of the Five

Civilized Tribes and Osage Indians),

including hearings and appeals within the

jurisdiction of the Office of Hearings and

Appeals, see Title 43, Code of Federal

Regulations, Part 4, Subpart D; Funds of

deceased Indians other than the Five

Civilized Tribes, see Title 25 Code of Federal

Regulations, Part 115.

Subpart A—Introduction

§ 15.1 What is the purpose of this part?

This part contains the procedures that

the Secretary follows to initiate the

probate of the trust estate of a deceased

individual Indian who owned trust or

restricted property. This part tells you

how to file the necessary documents to

probate the trust estate. This part also

describes how probates will be

processed by the BIA, and how probates

may be sent to the OHA for disposition.

§ 15.2 What terms do I need to know?

ALJ means an administrative law

judge or other employee of the

Department of the Interior’s Office of

Hearings and Appeals (OHA) upon

whom authority has been conferred by

the Secretary to conduct hearings in

accordance with 43 CFR Part 4 Subpart

D.

BIA means the Bureau of Indian

Affairs within the Department of the

Interior.

IIM account means Individual Indian

Money Account.

LTRO means the Land Titles and

Records Office within the BIA.

OHA means the Hearings Division,

Office of Hearings and Appeals,

Department of the Interior.

OTFM means the Office of Trust

Funds Management, within the Office of

the Special Trustee for American

Indians, Department of the Interior, or

its authorized representative.

Agency means the agency office or

any other designated office in the BIA

having jurisdiction over trust or

restricted property and money. This

term also means any office of a tribe

which has contracted or compacted the

BIA probate function under 25 U.S.C.

§ 450f or 25 U.S.C. § 458cc.

Attorney decision maker means an

attorney with the BIA, who reviews a

probate package, determines heirs,

approves wills and beneficiaries of the

will, determines creditors claims, and

issues a written decision.

Beneficiary means any individual

who receives trust or restricted property

or money in a decedent’s will.

Day means a calendar day, unless

otherwise stated.

Decedent means a person who is

deceased.

Deciding official means the official

with the delegated authority to make a

decision on a probate matter, and may

include a BIA regional director, agency

superintendent, field representative, or

attorney decision maker (BIA deciding

official); or an OHA ALJ or other OHA

designated official (OHA deciding

official).

Decision/order means a written

document issued by the deciding

official determining heirs, approving

wills and beneficiaries of the will,

approving creditors claims, and

ordering distribution of property and

money.

Domicile means the legal residence of

the person.

Estate means the trust cash assets,

restricted or trust lands owned by the

decedent at the time of his death.

Form OHA–7 means a form issued by

the OHA which lists data for heirship

and family history, and provides

information on any wills, trust and

restricted property, adoptions, names

and addresses of all interested parties.

Heir means any individual who

receives trust or restricted property or

money from a decedent in an intestate

proceeding.

IIM account means funds held in an

individual Indian monies account by

the OTFM or a tribe performing this

function under a contract or compact.

Interested parties means any probable

or actual heir, any beneficiary under a

will, any party asserting a claim against

a deceased Indian’s estate, and any tribe

having a statutory option to purchase

the trust or restricted property interest

of a decedent.

Intestate means the decedent died

without a will.

Minor means an individual that has

not reached age of majority as defined

by the applicable tribal or state law.

Probate means the legal process by

which applicable tribal law, state law,

or federal law that affects the

distribution of the decedent’s estate is

applied to: (1) determine the heirs; (2)

approve wills and beneficiaries; and (3)

transfer any funds held in trust by the

Secretary for a decedent to the heirs,

beneficiaries, or other persons or

entities entitled by law.

Probate clerk means a BIA or tribal

employee who is responsible for

processing a probate package.

Probate specialist means the BIA or

tribal employee who is trained in Indian

probate matters.

Restricted land means land the title to

which is held by an individual Indian

or a tribe and which can only be

alienated or encumbered by the owner

with the approval of the Secretary

because of limitations contained in the

conveyance instrument pursuant to

federal law.

Secretary means the Secretary of the

Interior or an authorized representative.

Superintendent or Field

Representative means an authorized

representative of the Secretary of the

Interior who is the officer in charge of

a BIA agency or field office.

Testate means the decedent executed

a will before his death.

Trust cash assets means the funds

held in an IIM account.

Trust land means the land, or an

interest therein, for which the United

States holds fee title in trust for the

benefit of an individual Indian.

Vendor or Creditor means any

individual or company who submits a

claim for payment from a decedent’s

estate.

Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations 7091

We/Us means either an official of the

BIA or a tribe performing probate

functions under a BIA contract or

compact.

Will means a written testamentary

document, including any properly

executed written changes, called

codicils, which was signed by the

decedent and was attested by two

disinterested adult witnesses, that states

who will receive the decedent’s trust or

restricted property.

You/I means an interested party, as

defined herein, with an interest in the

decedent’s estate unless a specific

section says otherwise.

§ 15.3 Will the Secretary probate all the

property in Indian estates?

(a) No. We will probate only the trust

or restricted property in the estate of an

Indian decedent.

(b) We will not probate:

(1) Real or personal property in an

estate of an Indian decedent that is not

trust or restricted property;

(2) Restricted property derived from

allotments in the estates of members of

the Five Civilized Tribes (Cherokee,

Choctaw, Chickasaw, Creek and

Seminole) in Oklahoma; and

(3) Restricted interests derived from

allotments made to Osage Indians in

Oklahoma (Osage Nation) and Osage

headright interests.

(c) We will probate the estate of a

deceased member of the Five Civilized

Tribes or Osage Nation who owns an

interest in land derived from an

individual Indian other than the Five

Civilized Tribes or Osage Nation.

§ 15.4 How does the probate process

work?

The basic steps of the probate process

are:

(a) We find out about a person’s death

(see subpart B for details);

(b) We prepare a probate package

which includes documents that you

send us (see subpart C for details);

(c) We refer the completed probate

package to a deciding official in the BIA

or the OHA (see subpart D for details);

(d) The deciding official decides how

to distribute the property and/or funds

deposited in an IIM account (see

subparts D and E for details).

Subpart B—Starting the Probate

Process

§ 15.101 How do I begin the BIA probate

process?

As soon as possible you should

contact the nearest BIA agency or

regional office where the decedent was

enrolled to inform us of the decedent’s

death. You must provide a certified

copy of the death certificate, if one

exists. If a death certificate does not

exist, you may provide one or more of

the following:

(a) A copy of the obituary notice from

a local newspaper; or

(b) Any other document that we

accept that verifies the death, such as a

church record or a court record; and

(c) An affidavit of death prepared by

the tribe with whom the decedent was

associated or someone who knows about

the decedent’s death that supports the

information in paragraph (a) or (b) of

this section.

§ 15.102 May I notify the BIA of a death if

I am not related to the decedent?

Yes. You do not need to be related to

the decedent in order to notify us of the

death. You can be a friend, neighbor, or

any other interested party.

§ 15.103 When should the BIA be notified

of a death?

There is no deadline for notifying us

of a death. However, you should notify

us of a death as soon as possible after

the person dies.

§ 15.104 What other documents does the

BIA need to process a probate package?

(a) You should provide us with the

following documents and information

before we can begin to process the

probate package.

(1) Social Security number of the

decedent;

(2) The birth certificate or other

record of birth of the decedent;

(3) All death records including those

listed in § 15.101;

(4) A list of known creditors against

the estate and their addresses;

(5) Current names and addresses of

potential heirs and beneficiaries;

(6) Any statements renouncing an

interest in the estate;

(7) Documents from a court of

competent jurisdiction, including but

not limited to:

(i) All marriage licenses of the

decedent;

(ii) All divorce decrees of the

decedent;

(iii) Adoption and guardianship

records relevant to the decedent;

(iv) Any sworn statements regarding

the decedent’s family, including any

statements of paternity or maternity;

(v) Any name changes; and

(vi) Order requiring payment of child

support;

(8) All original or certified copies of

wills and codicils, and any revocations;

and

(9) Any additional documents you

provide or that we request.

(b) You must inform us if any of the

documents or information identified in

this part are not available.

§ 15.105 Will the BIA wait to begin the

probate process until it is notified of the

decedent’s death?

No. We may find out about the death

of a person without being notified by an

interested party. If we do, and if the

decedent meets the criteria in § 15.3, we

will initiate the process to collect the

necessary documentation. You should

not assume that we will find out about

a death. To assure timely distribution of

the estate, you should notify us as

provided in § 15.101.

§ 15.106 Can I get emergency assistance

for funeral services from the decedent’s IIM

account?

(a) If you are responsible for making

the funeral arrangements on behalf of

the family of a decedent who had an IIM

account and you have an immediate

need to pay for funeral arrangements

prior to burial, you may make a request

to the BIA for up to $1,000 from the

decedent’s IIM account if the decedent’s

IIM account has more than $2,500 in the

account at the date of death.

(b) You must apply for this assistance

and submit to the BIA an original

itemized estimate of the cost of the

service to be rendered and the

identification of the service provider.

(c) We may approve reasonable costs

up to $1,000 that are necessary for the

burial services, taking into

consideration the total amount in the

account, the number of probable heirs or

beneficiaries of whom we are aware, the

amount of any claims against the

account of which we are aware, and any

other relevant factor.

(d) We will make payments directly to

the providers of the services.

§ 15.107 Who prepares an Indian probate

package?

The probate specialist or probate clerk

at the agency or tribe where the

decedent is an enrolled member will

prepare the probate package in

consultation with the probable heirs or

beneficiaries who can be located.

§ 15.108 What agency prepares the

probate package if the decedent was not an

enrolled member of a tribe or is a member

of more than one tribe?

(a) If the decedent was not an enrolled

member of a tribe, but owns interests in

trust or restricted property, the agency

that has jurisdiction over the tribe with

the strongest association with the

decedent will prepare the probate

package, unless otherwise provided by

federal law.

(b) If the decedent was is a member

of more than one tribe, the agency that

has jurisdiction over the tribe with the

strongest association with the decedent

7092 Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations

will prepare the probate package, unless

otherwise provided by federal law.

§ 15.109 Can a probable heir or beneficiary

give up his/her interest in trust or restricted

lands or trust funds?

Unless otherwise provided by federal

law or a tribal inheritance code

approved by the Secretary, you must file

a statement renouncing your interest

with the BIA or the OHA before the

deciding official issues an order.

(a) If you are a non-Indian and 21

years or older, you may give up all or

part of your interest by submitting a

notarized statement in which you

renounce your interest in the estate.

(b) If you are an Indian and 21 years

or older and you wish to give up all or

part of your interest in the estate, we

must refer your request to the OHA in

accordance with 43 CFR 4.208.

Subpart C—Preparing the Probate

Package

§ 15.201 What will the BIA do with the

documents that I provide?

Once we receive the documents that

you provide us under § 15.105, the

probate specialist or probate clerk will:

(a) Use the documents to prepare a

probate package; and

(b) Consult with you and any other

sources to obtain any additional

information needed for a complete

package.

§ 15.202 What must the complete probate

package contain?

The complete probate package must

contain all of the following:

(a) A certified copy of the death

certificate, if one exists, or some other

reliable evidence of death as required by

§ 15.101;

(b) A completed Form OHA–7, ‘‘Data

for Heirship Findings and Family

History,’’ certified by the BIA;

(c) A certified inventory of trust or

restricted real property;

(d) A statement describing all income

generating activity;

(e) A copy of the decedent’s IIM

account ledger showing:

(1) The balance of the account at the

date of death; and

(2) The balance of the account at the

date of probate package submission;

(f) All original or certified copies of

wills, codicils and any revocations of

wills or codicils;

(g) Any statements renouncing

interest that have been submitted to the

agency;

(h) Claims of creditors against the

estate;

(i) All documentation of payment of

claims paid prior to probate proceeding;

(j) All other documents required in

§ 15.105;

(k) Tribal options to purchase

interests of a decedent;

(l) Affidavit of the probate clerk or

probate specialist that all efforts to

locate the probable heirs and

beneficiaries have been exhausted; and

(m) Any other documentation that

may be required at the time of probate

proceedings.

§ 15.203 What happens after the BIA

prepares the probate package?

Within 30 days after all the

documents required by § 15.105 and

§ 15.202 are received, a probate

specialist will review the probate

package and determine who will be the

appropriate deciding official.

(a) If the decedent’s estate contains

only trust cash assets of a value less

than $5,000 not including any interest

that may have accrued after the death of

the decedent, the probate package may

be processed in accordance with

§ 15.206 and may be referred to a BIA

deciding official subject to the

provisions in § 15.205.

(b) All other probate cases will be

referred to a BIA attorney decision

maker or an OHA deciding official

subject to the provisions in § 15.205.

(c) We will notify all interested

parties of:

(1) The right of the probable heirs or

beneficiaries to request a formal hearing

before an ALJ;

(2) The identification of the probable

legal heirs; or

(3) The submission of an original or

certified copy of a will or revocation

and listed beneficiaries;

(4) Any known claims against the

estate; and (5) The address of the

designated office where the probate

package has been sent.

(d) If the deciding official is at the BIA

and you have not requested a formal

hearing before an ALJ, the probate

specialist will send the probate package

to the BIA deciding official within 30

days after the date the probate

specialists mailed the notice to you.

(e) If the deciding official is at the

OHA, then we will send the probate

package to the OHA deciding official

and notify the probable heirs that they

may ask the OHA for an in-person

hearing at a site convenient to most of

the parties, a video conference or

teleconference hearing (if available), or

a decision based on documents in the

probate package.

(f) On the same day that the probate

specialist has determined who will be

the designated deciding official, we will

notify you of this determination by

certified mail, return receipt requested.

§ 15.204 After the probate package has

been sent to a BIA deciding official, may I

still request a formal hearing with an ALJ?

Yes, you may request a formal hearing

before an ALJ at any time up until the

date the BIA deciding official renders a

decision.

§ 15.205 When will the BIA refer a probate

to the OHA?

We will refer a probate to the OHA

under § 15.203(d) if the probate

specialist determines that a referral is

appropriate. In determining whether to

refer a probate to the OHA, the probate

specialist will consider all of the criteria

listed below:

(a) Problems with the will. The

probate specialist will refer the probate

package to the OHA if it appears that the

will:

(1) Is likely to be contested;

(2) Is complex or ambiguous; or

(3) Is of questionable validity.

(b) Contested claims. The probate

specialist will refer the probate package

to the OHA if you:

(1) Contest a creditor claim; or

(2) Contest a claim made by a family

member.

(c) Other problems. The probate

specialist will be refer the probate

package to the OHA if it appears there

are:

(1) Questions about family

relationships;

(2) Conflict in prior probate orders;

(3) Problems with the evidence;

(4) Questions about adoption of an

heir;

(5) Questions involving paternity;

(6) Presumptions of death;

(7) Rights of minor heirs that might be

jeopardized;

(8) Disclaimers of interests by Indian

probable heirs or beneficiaries;

(9) Determinations of escheat under

43 CFR § 4.205;

(10) Challenges to the jurisdiction of

any court that issued an order that has

been used as a supporting document; or

(11) Questions concerning the

decedent’s domicile.

(d) Approval of settlement

agreements. The probate specialist will

refer the case to the OHA if there is a

settlement agreement between heirs or

beneficiaries as to the disposition of the

estate.

§ 15.206 Is there a summary process for

distributing an estate with only trust cash

assets?

Yes. Unless otherwise provided by

federal law or a tribal inheritance code

approved by the Secretary, a decedent’s

estate that contains only trust cash

assets of a value less than $5,000 not

including any interest that may have

Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations 7093

accrued after the death of the decedent,

may be summarily processed by a BIA

deciding official.

(a) Within 30 days after notice under

§ 15.203 has been sent, the probable

heirs may request a formal hearing

before an ALJ to determine the proper

distribution of the trust cash assets.

Upon notice of a request for a formal

hearing, the probate specialist will

forward the probate package to the

appropriate ALJ within five days.

(b) Within 60 days after notice under

§ 15.203 has been sent and if the

probable heirs have not requested a

formal hearing with an ALJ, the BIA

deciding official to whom the probate

has been referred will assemble the

probable heirs and hold an informal

hearing to determine the distribution of

the trust cash assets.

(c) Within 30 days after the informal

hearing, the BIA deciding official will

prepare an order in accordance with

§ 15.302 through § 15.311.

(d) Any interested party may appeal a

summary distribution decision in

accordance with subpart E of this part.

Subpart D—Probate Processing,

Claims and Distributions

§ 15.301 What does an attorney decision

maker do with the probate package?

(a) Upon receipt of the probate

package, the attorney decision maker

reviews the probate package and

determines whether there are issues of

fact or law of the case that indicate that

the probate package should be referred

to the OHA. If any issues of fact or law

that require a hearing are apparent from

the review of the case, the attorney

decision maker will refer the probate

package to the appropriate ALJ within

five days.

(b) Within 30 days after notice under

§ 15.203 has been sent, the probable

heirs may request a formal hearing

before an ALJ to determine the

distribution of the estate. Within five

days of the receipt of notice of a request

for a formal hearing, the attorney

decision maker will forward the probate

package to the appropriate ALJ.

(c) Within 120 days after the notice

under § 15.203 has been sent and if the

probable heirs have not requested a

formal hearing with an ALJ, the attorney

decision maker will assemble the

probable heirs and hold an informal

hearing to determine the distribution of

the estate.

(d) Within 60 days after the informal

hearing, the attorney decision maker

will issue an written order in

accordance with § 15.310.

§ 15.302 What law is used by the deciding

official to determine the distribution of the

trust estate?

Unless otherwise provided by federal

law or a tribal inheritance code

approved by the Secretary, the law of

the state where the decedent was

domiciled will determine the

distribution of the estate.

§ 15.303 If the decedent owed me money,

how do I file a claim against the estate?

(a) If you wish to make a claim against

the estate of a decedent, you must

submit to us an original and two copies

of an itemized statement of the debt

showing the amount of the original debt

and the remaining balance on the date

of the decedent’s death.

(b) The itemized statement must state

whether you have filed a claim against

the decedent’s non-trust assets.

(c) We must receive your claim within

60 days from the date the BIA receives

the verification of the decedent’s death

in § 15.101 to be included as part of the

probate package.

§ 15.304 How does the BIA deciding

official determine if a claim will be allowed

and paid?

(a) The BIA deciding official may

direct the payment of some or all of the

debts of the decedent after reviewing the

probate package in accordance with the

standards provided at 43 CFR 4.250 (c)

through (g), and no claim prohibited by

43 CFR 4.250 will be paid.

(b) No claim will be paid from trust

or restricted assets where the BIA

deciding official is aware that the

decedent’s non-trust estate may be

available to pay the claim.

§ 15.305 What claims will be paid first?

(a) The first claims to be paid, referred

to as priority claims, are paid in order

of priority. The priority claims are:

(1) Funeral expenses (including the

cemetery marker);

(2) Medical expenses for the last

illness;

(3) Nursing home or other care facility

expenses;

(4) A claim of an Indian tribe;

(5) A claim reduced to judgment by a

court of competent jurisdiction.

(b) After payment of the priority

claims, the BIA deciding official may

authorize all remaining claims, referred

to as general claims.

§ 15.306 Can the BIA deciding official

reduce the amount of claims?

The BIA deciding official has the

discretion to decide that part or all of an

otherwise valid claim is unreasonable,

reduce the claim to a reasonable

amount, or disallow the claim in its

entirety.

(a) If a claim is reduced, the BIA

deciding official will order payment

only of the reduced amount.

(b) The BIA deciding official may

reduce or disallow both priority claims

and general claims.

§ 15.307 What if there is not enough

money in the decedent’s IIM account to pay

all claims?

(a) If there is not enough money in the

IIM account to pay all claims, the BIA

deciding official will order payment of

the priority claims first in the order

identified in § 15.305.

(b) If there is not enough in the IIM

account to pay the priority claims, the

BIA deciding official may order

payment of the priority claims on a pro

rata (reduced) basis.

(c) If less than $1,000 remains in the

IIM account after payment of priority

claims is ordered, the general claims

may be ordered paid on a pro rata basis

or disallowed in their entirety.

§ 15.308 Will the BIA use future income to

pay claims?

No. The unpaid balance of any claims

will not be enforceable against the estate

after the estate is closed.

§ 15.309 Will the BIA deciding official

authorize payment of interest or penalties

accruing after the date of death?

No. Interest or penalties charged

against either priority or general claims

after date of death will not be paid.

§ 15.310 When will the BIA deciding

official issue a decision on the probate?

Within 60 days after an informal

hearing has been held, the BIA deciding

official will issue a written decision/

order in accordance with § 15.311. Upon

receipt of the decision/order, the BIA

deciding official will send all interested

parties a copy of the decision/order.

§ 15.311 What is in the written decision/

order of the BIA deciding official?

The BIA deciding official issues a

written decision/order that:

(1) In intestate cases: Lists the names,

relationship to the decedent, and shares

of the heirs; provides citations to the

law of descent and distribution; or the

fact that the decedent died leaving no

legal heirs;

(2) In testate cases: approves or

disapproves a will; interprets provisions

of the approved will; provides the

names and relationship of the

beneficiaries to the decedent; describes

the property each beneficiary is to

receive;

(3) Allows or disallows claims against

the estate; orders the amount of

payment for all approved claims;

(4) States whether the heirs or

beneficiaries are Indian or non-Indian;

7094 Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations

(5) Determines any rights of dower,

curtesy or homestead which may

constitute a burden upon the interest of

the heirs;

(6) Attaches a certified copy of the

inventory of trust or restricted lands, if

any; and

(7) Advises all interested parties of

their appeal rights in accordance with

subpart E of this part.

§ 15.312 What happens after the decision

is made?

We will not pay claims, transfer title

to land, or distribute trust cash assets for

75 days after the decision/order is

mailed to the interested parties. After 75

days and if no appeal has been filed, the

following actions will take place:

(a) The LTRO will change its land title

records for the trust and restricted

property in accordance with the

decision/order; and

(b) The OTFM will pay claims and

distribute the IIM account in accordance

with the decision/order.

Subpart E—Appeals

§ 15.401 May I appeal the decision of the

BIA deciding official?

You have a right to appeal the

decision made by the BIA deciding

official if you are an interested party

and are affected by the probate decision.

§ 15.402 How do I file an appeal of the

decision/order?

(a) To file an appeal of the decision/

order, you may send or deliver a signed,

written statement to the BIA deciding

official where the probate package was

sent that contains:

(1) The name of the decedent;

(2) A description of your relationship

to the decedent;

(3) An explanation of why you are

appealing; and

(4) Any errors you believe the BIA

deciding official made.

(b) Within ten days from the receipt

of the appeal, the BIA deciding official

will notify all other interested parties of

the appeal and forward the case to the

appropriate ALJ.

§ 15.403 How long do I have to file an

appeal?

(a) You must send or deliver your

written appeal within 60 days of the

date that appears on the decision mailed

to you. If you mail your appeal, it must

be postmarked within 60 days of the

date of the decision.

(b) If the 60-day appeal period is

missed, you still have a right to file a

written statement with the BIA deciding

official asking to have the decision

changed for one or more of the

following reasons:

(1) You did not receive notice of the

probate;

(2) You have obtained new evidence

or information after the decision was

made; or

(3) You have evidence that was

known at the time of the probate

proceeding but was not included in the

probate package.

(c) After we have received your

request, we will forward it to the

appropriate ALJ within ten days for

action in accordance with 43 CFR Part

4, Subpart D.

§ 15.404 What will happen to the estate if

an appeal is filed?

The BIA deciding official will refer

your appeal to the appropriate ALJ in

the same manner provided under 43

CFR § 4.210. Until the appeal has been

resolved, the BIA will not distribute any

of the decedent’s property or modify the

land title records and the OTFM will

not pay claims or distribute any funds

in the decedent’s IIM account.

§ 15.405 How does the ALJ review a

decision issued by a BIA deciding official?

The ALJ will conduct a de novo

review; that is, conduct a formal hearing

on the merits of the case.

Subpart F—Information and Records

§ 15.501 If I have a question about a

probate that has been assigned to a BIA

deciding official, may I contact the deciding

official directly?

In order to avoid off-the-record

communications with the BIA deciding

official about your specific case that

might be interpreted as an attempt to

influence final decision on the probate

case, you should direct your questions

to the BIA deciding official’s clerk or the

probate specialist or probate clerk who

prepared your probate package.

§ 15.502 How can I find out the status of

a probate?

You may request information about

the status of an Indian probate from any

BIA agency or regional office.

§ 15.503 Who owns the records associated

with this part?

(a) Records are the property of the

United States if they:

(1) Are made or received by a tribe or

tribal organization in the conduct of a

federal trust function under this part,

including the operation of a trust

program pursuant to Public Law 93–638

as amended; and

(2) Evidence the organization,

functions, policies, decisions,

procedures, operations, or other

activities undertaken in the performance

of a federal trust function under this

part.

(b) Records not covered by paragraph

(a) of this section that are made or

received by a tribe or tribal organization

in the conduct of business with the

Department of the Interior under this

part are the property of the tribe.

§ 15.504 How must records associated

with this part be preserved?

(a) Any organization, including tribes

and tribal organizations, that have

records identified in § 15.503(a) must

preserve the records in accordance with

approved Departmental records

retention procedures under the Federal

Records Act, 44 U.S.C. Chapters 29, 31

and 33. These records and related

records management practices and

safeguards required under the Federal

Records Act are subject to inspection by

the Secretary and the Archivist of the

United States.

(b) A tribe or tribal organization

should preserve the records identified

in § 15.503(b) for the period of time

authorized by the Archivist of the

United States for similar Department of

the Interior records in accordance with

44 U.S.C. Chapter 33. If a tribe or tribal

organization does not preserve records

associated with its conduct of business

with the Department of the Interior

under this part, the tribe or tribal

organization may be prevented from

being able to adequately document

essential transactions or furnish

information necessary to protect its legal

and financial rights or those of persons

directly affected by its activities.

PART 114—SPECIAL DEPOSITS—

[REMOVED AND RESERVED]

2. Under authority of 25 U.S.C. 2, 25

U.S.C. 9; Pub. L. 97–100; and Pub. L.

97–257, part 114 is removed and

reserved.

PART 115—TRUST FUNDS FOR

TRIBES AND INDIVIDUAL INDIANS

3. Part 115 is revised to read as

follows:

Subpart A—Purpose, Definitions, and

Public Information

Sec.

115.001 What is the purpose of this part?

115.002 What definitions do I need to

know?

Subpart B—IIM Accounts

115.100 Osage Agency.

115.101 Individual accounts.

115.102 Adults under legal disability.

115.103 Payments by other Federal

agencies.

115.104 Restrictions.

115.105 Funds of deceased Indians of the

Five Civilized Tribes.

115.106 Assets of members of the Agua

Caliente Band of Mission Indians.

Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations 7095

115.107 Appeals.

Subpart C—IIM Accounts: Minors

115.400 Will a minor’s IIM account always

be supervised?

115.401 What is a minor’s supervised

account?

115.402 Will a minor have access to

information about his or her account?

115.403 Who will receive information

regarding a minor’s supervised account?

115.404 What information will be provided

in a minor’s statement of performance?

115.405 How frequently will a minor’s

statement of performance be mailed?

115.406 Who provides an address of record

for a minor’s supervised account?

115.407 How is an address of record for a

minor’s supervised account changed?

115.408 May a minor’s supervised account

have more than one address on file with

the BIA?

115.409 How is an address for a minor’s

residence changed?

115.410 What types of identification will

the BIA or OTFM accept as ‘‘verifiable

photo identification’’?

115.411 What if the individual making a

request regarding a minor’s supervised

account does not have any verifiable

photo identification?

115.412 Will child support payments be

accepted for deposit into a minor’s

supervised account?

115.413 Who may receive funds from a

minor’s supervised account?

115.414 What is an authorized

disbursement request?

115.415 How will an authorized

disbursement from a minor’s supervised

account be sent?

115.416 Will the United States post office

forward mail regarding a minor’s

supervised account to a forwarding

address left with the United States post

office?

115.417 What portion of funds in a minor’s

supervised account may be withdrawn

under a distribution plan?

115.418 What types of trust funds may a

minor have?

115.419 Who develops a minor’s

distribution plan?

115.420 When developing a minor’s

distribution plan, what information must

be considered and included in the

evaluation?

115.421 What information will be included

in the copy of the minor’s distribution

plan that will be provided to OTFM?

115.422 As a custodial parent, the legal

guardian, the person who BIA has

recognized as having control and

custody of the minor, or an emancipated

minor, what are your responsibilities if

you receive trust funds from a minor’s

supervised account?

115.423 If you are a custodial parent, a legal

guardian, or an emancipated minor, may

BIA authorize the disbursement of funds

from a minor’s supervised account

without your knowledge?

115.424 Who receives a copy of the BIAapproved distribution plan and any

amendments to the plan?

115.425 What will we do if we find that a

distribution plan has not been followed

or an individual has acted improperly in

regard to his or her duties involving a

minor’s trust funds?

115.426 What is the BIA’s responsibility

regarding the management of a minor’s

supervised account?

115.427 What is the BIA’s annual review

process for a minor’s supervised

account?

115.428 Will you automatically receive all

of your trust funds when you reach the

age of 18?

115.429 What do you need to do when you

reach 18 years of age to access your trust

funds?

115.430 Will your account lose its

supervised status when you reach the

age of 18?

115.431 If you are an emancipated minor

may you withdraw trust funds from your

account?

Subpart D—IIM Accounts: Estate Accounts

115.500 When is an estate account

established?

115.501 How long will an estate account

remain open?

115.502 Who inherits the money in an IIM

account when an account holder dies?

115.503 May money in an IIM account be

withdrawn after the death of an account

holder but prior to the end of the probate

proceedings?

115.504 If you have a life estate interest in

income-producing trust assets, how will

you receive the income?

Subpart E—IIM Accounts: Hearing Process

for Restricting an IIM Account

115.600 If BIA decides to restrict your IIM

account under § 115.102 or § 115.104,

what procedures must the BIA follow?

115.601 Under what circumstances may the

BIA restrict your IIM account through

supervision or an encumbrance?

115.602 How will the BIA notify you or

your guardian, as applicable, of its

decision to restrict your IIM account?

115.603 What happens if BIA’s notice of its

decision to place a restriction on your

IIM account that is sent by United States

certified mail is returned to the BIA as

undeliverable for any reason?

115.604 When will BIA authorize OTFM to

place a restriction on your IIM account?

115.605 What information will the BIA

include in its notice of the decision to

restrict your IIM account?

115.606 What happens if you do not request

a hearing to challenge BIA’s decision to

restrict your IIM account during the

allotted time period?

115.607 How do you request a hearing to

challenge the BIA’s decision to restrict

your IIM account?

115.608 If you request a hearing to

challenge BIA’s decision to restrict your

IIM account, when will BIA conduct the

hearing?

115.609 Will you be allowed to present

testimony and/or evidence at the

hearing?

115.610 Will you be allowed to present

witnesses during a hearing?

115.611 Will you be allowed to question

opposing witnesses during a hearing?

115.612 May you be represented by an

attorney during your hearing?

115.613 Will the BIA record the hearing?

115.614 Why is the BIA hearing recorded?

115.615 How long after the hearing will BIA

make its final decision?

115.616 What information will be included

in BIA’s final decision?

115.617 What happens when the BIA

decides to supervise or encumber your

IIM account after your hearing?

115.618 What happens if at the conclusion

of the notice and hearing process we

decide to encumber your IIM account

because of an administrative error which

resulted in funds that you do not own

being deposited in your account or

distributed to you or to a third party on

your behalf?

115.619 If the BIA decides that the

restriction on your IIM account will be

continued after your hearing, do you

have the right to appeal that decision?

115.620 If you decide to appeal the BIA’s

final decision pursuant to § 115.107, will

the BIA restrict your IIM account during

the appeal?

Subpart F—Trust Fund Accounts: General

Information

115.700 Why is money held in trust for

tribes and individual Indians?

115.701 What types of accounts are

maintained for Indian trust funds?

115.702 What specific sources of money

will be accepted for deposit into a trust

account?

115.703 May we accept for deposit into a

trust account money not specified in

§ 115.702?

115.704 May we accept for deposit into a

trust account retirement checks/

payments or pension fund checks/

payments even though those funds are

not specified in § 115.702?

115.705 May we accept for deposit into a

trust account money awarded or assessed

by a court of competent jurisdiction?

115.706 When funds are awarded or

assessed by a court of competent

jurisdiction in a cause of action

involving trust assets, what

documentation is required to deposit the

trust funds into a trust account?

115.707 Will the Secretary accept

administrative fees for deposit into a

trust account?

115.708 How quickly will trust funds

received by the Secretary on behalf of

tribes or individual Indians be deposited

into a trust account?

115.709 Will an annual audit be conducted

on trust funds?

Investments and Interests

115.710 Does money in a trust account earn

interest?

115.711 How is money in a trust account

invested?

115.712 What is the interest rate earned on

money in a trust account?

115.713 When does money in a trust

account start earning interest?

Subpart G—Tribal Accounts

115.800 When does OTFM open a tribal

account?

7096 Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations

115.801 How often will a tribe receive

information about its trust account(s)?

115.802 May a tribe make a request to

OTFM to receive information about its

trust account more frequently?

115.803 What information will be provided

in a statement of performance?

115.804 Will we account to a tribe for those

trust funds the tribe receives through

direct pay?

115.805 If a tribe is paid directly under a

contract for the sale or use of trust assets,

will we accept those trust funds for

deposit into a tribal trust account?

115.806 How will the BIA assist in the

administration of tribal judgment fund

accounts?

Investing and Managing Tribal Trust Funds

115.807 Will OTFM consult with tribes

about investments of tribal trust funds?

115.808 Could trust fund investments made

by OTFM lose money?

115.809 May a tribe recommend to OTFM

how to invest the tribe’s trust funds?

115.810 May a tribe directly invest and

manage its trust funds?

115.811 Under what conditions may a tribe

redeposit funds with OTFM that were

previously withdrawn under the Trust

Reform Act?

115.812 Is a tribe responsible for its

expenditures of trust funds that are not

made in compliance with statutory

language or other federal law?

115.813 Is there a limit to the amount of

trust funds OTFM will disburse from a

tribal trust account?

115.814 If a tribe withdraws money from its

trust account for a particular purpose or

project, may the tribe redeposit any

money that was not used for its intended

purpose?

Withdrawing Tribal Trust Funds

115.815 How does a tribe request trust

funds from a tribal trust account?

115.816 May a tribe’s request for a

withdrawal of trust funds from its trust

account be delayed or denied?

115.817 How does OTFM disburse money

to a tribe?

Unclaimed Per Capita Funds

115.818 What happens if an Indian adult

does not cash his or her per capita

check?

115.819 What steps will be taken to locate

an individual whose per capita check is

returned as undeliverable or not cashed

within twelve (12) months of issuance?

115.820 May OTFM transfer money in a

returned per capita account to a tribal

account?

Subpart H—Special Deposit Accounts

115.900 Who receives the interest earned

on trust funds in a special deposit

account?

115.901 When will the trust funds in a

special deposit account be credited or

paid out to the owner of the funds?

115.902 May administrative or land

conveyance fees paid as federal

reimbursements be deposited in a special

deposit account?

115.903 May cash bonds (e.g., performance

bonds, appeal bonds, etc.) be deposited

into a special deposit account?

115.904 Where earnest money is paid prior

to Secretarial approval of a conveyance

or contract instrument involving trust

assets, may the BIA deposit that earnest

money into a special deposit account?

Subpart I—Records

115.1000 Who owns the records associated

with this part?

115.1001 How must records associated with

this part be preserved?

Authority: R.S. 441, as amended, R.S. 463,

R.S. 465; 5 U.S.C. 301; 25 U.S.C. 2; 25 U.S.C.

9; 43 U.S.C. 1457; 25 U.S.C. 4001; 25 U.S.C.

161(a); 25 U.S.C. 162a; 25 U.S.C. 164; Pub.

L. 87–283; Pub. L. 97–100; Pub. L. 97–257;

Pub. L. 103–412; Pub. L. 97–458; 44 U.S.C.

3101 et seq.

Subpart A—Purpose, Definitions, and

Public Information

§ 115.001 What is the purpose of this part?

This part sets forth guidelines for the

Secretary of the Interior, including any

tribe or tribal organization if that entity

is administering specific programs,

functions, services or activities,

previously administered by the

Secretary of the Interior, but now

authorized under a Self-Determination

Act contract (pursuant to 25 U.S.C.

§ 450f) or a Self-Governance compact

(pursuant to 25 U.S.C. § 558cc), to carry

out the trust duties owed to tribes and

individual Indians to manage and

administer trust assets for the exclusive

benefit of tribal and individual Indian

beneficiaries pursuant to federal law,

including the American Indian Trust

Fund Management Reform Act of 1994,

Public Law 103–412, 108 Stat. 4239, 25

U.S.C. § 4001 (Trust Reform Act).

§ 115.002 What definitions do I need to

know?

As used in this part:

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.

Account means a record of trust funds

that is maintained by the Secretary for

the benefit of a tribe or a person.

Administratively restricted account

means an IIM account that is placed on

temporary hold by OTFM where an

account holder’s current address of

record is unknown or where more

documentation is needed to make a

distribution from an account.

Adult means an individual who has

reached 18 years of age, except when

the individual’s tribe has determined

the age for adulthood to be older than

18 for access to tribal trust fund per

capita proceeds.

Adult in need of assistance means an

individual who has been determined to

be ‘‘incapable of managing or

administering his or her property,

including his or her financial affairs’’

either (a) through a BIA administrative

process that is based on a finding by a

licensed medical professional or

licensed mental health professional, or

(b) by an order or judgment of a court

of competent jurisdiction.

BIA means the Bureau of Indian

Affairs, Department of the Interior, or its

authorized representative.

Bond means security for the

performance of certain obligations or a

guaranty of such performance as

furnished by a third-party surety. As

used in this part, bonds may include

cash bonds, performance bonds, and

surety bonds.

Court of competent jurisdiction means

a federal or tribal court with

jurisdiction; however, if there is no

tribal court with jurisdiction, then a

state court with jurisdiction.

Day means a calendar day unless

otherwise specified.

Department means the Department of

the Interior or its authorized

representative.

Deposits mean receiving funds,

ordinarily through a Federal Reserve

Bank, for credit to a trust fund account.

Emancipated minor means a person

under 18 years of age who is married or

who is determined by a court of

competent jurisdiction to be legally able

to care for himself or herself.

Encumber or encumbrance means to

attach trust assets held by the Secretary

with a claim, lien, or charge that has

been approved by the Secretary.

Encumbered account means a trust

fund account where some portion of the

proceeds are obligated to another party.

Estate account means an account for

a deceased IIM account holder.

FOIA means the Freedom of

Information Act, 5 U.S.C. § 552.

Guardian means a person who is

legally responsible for the care and

management of an individual and his or

her estate. This definition includes, but

is not limited to, conservator or

guardian of the property. However, this

definition does not apply to property

subject to § 115.106 of this part.

Individual Indian Money (IIM)

accounts means an interest bearing

account for trust funds held by the

Secretary that belong to a person who

has an interest in trust assets. These

accounts are under the control and

management of the Secretary. There are

three types of IIM accounts:

unrestricted, restricted, and estate

accounts.

Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations 7097

Legal disability means the lack of

legal capability to perform an act which

includes the ability to manage or

administer his or her financial affairs as

determined by a court of competent

jurisdiction or another federal agency

where the federal agency has

determined that the adult requires a

representative payee and there is no

legal guardian to receive federal benefits

on his or her behalf.

MSW means a Master of Social Work

degree from an accredited college or

university.

Minor means an individual who is not

an adult as defined in this part.

Non-compos mentis means a person

who has been determined by a court of

competent jurisdiction to be of unsound

mind or incapable of managing his or

her own affairs.

OST means the Office of the Special

Trustee for American Indians,

Department of the Interior, or its

authorized representative.

OTFM means the Office of Trust

Funds Management, within the Office of

the Special Trustee for American

Indians, Department of the Interior, or

its authorized representative.

Privacy Act means the Federal Privacy

Act, 5 U.S.C. § 552a.

Restricted fee land(s) means land the

title to which is held by an individual

Indian or a tribe and which can only be

alienated or encumbered by the owner

with the approval of the Secretary

because of limitations contained in the

conveyance instrument pursuant to

federal law.

Secretary means the Secretary of the

Interior or an authorized representative;

it also means a tribe or tribal

organization if that entity is

administering specific programs,

functions, services or activities,

previously administered by the

Secretary of the Interior, but now

authorized under a Self-Determination

Act contract (pursuant to 25 U.S.C.

§ 450f) or a Self-Governance compact

(pursuant to 25 U.S.C. § 558cc).

Special deposit account means a

temporary account for the deposit of

trust funds that cannot immediately be

credited to the rightful account holders.

Supervised account means a restricted

IIM account, from which all

disbursements must be approved by the

BIA, that is maintained for minors,

emancipated minors, adults who are in

need of assistance, adults who under

legal disability, or adults who are noncompos mentis.

Tribal account or tribal trust account

generally means a trust fund account for

a federally recognized tribe that is

maintained and held in trust by the

Secretary.

Tribe means any Indian tribe, nation,

band, pueblo, rancheria, colony, or

community, including any Alaska

Native Village or regional or village

corporation as defined or established

under the Alaska Native Claims

Settlement Act which is federally

recognized by the United States

government for special programs and

services provided by the Secretary to

Indians because of their status as

Indians. Tribe also means two or more

tribes joined for any purpose, the joint

assets of which include funds held in

trust by the Secretary.

Trust account means a tribal account,

an IIM account, or a special deposit

account for trust funds maintained by

the Secretary.

Trust assets mean trust lands, natural

resources, trust funds, or other assets

held by the federal government in trust

for Indian tribes and individual Indians.

Trust funds means money derived

from the sale or use of trust lands,

restricted fee lands, or trust resources

and any other money that the Secretary

must accept into trust.

Trust land(s) means any tract or

interest therein, that the United States

holds in trust status for the benefit of a

tribe or an individual Indian.

Trust Reform Act means the American

Indian Trust Fund Management Reform

Act of 1994, Pub. L. 103–412, 108 Stat.

4239, 25 U.S.C. § 4001.

Trust resources means any element or

matter directly derived from Indian trust

property.

Unrestricted account means an IIM

account in which an Indian account

holder may determine the timing and

amount of disbursements from the

account.

Voluntary hold means a request by an

individual Indian with an unrestricted

IIM account to keep his or her trust

funds in a trust account instead of

having the trust funds automatically

disbursed.

We or Us or Our means the Secretary

as defined in this part.

You or Your means an IIM account

holder.

Subpart B—IIM Accounts

§ 115.100 Osage Agency.

The provisions of this part do not

apply to funds the deposit or

expenditure of which is subject to the

provisions of part 117 of this

subchapter.

§ 115.101 Individual accounts.

Except as otherwise provided in this

part, adults shall have the right to

withdraw funds from their accounts.

Upon their application, or an

application made in their behalf by the

Secretary or his authorized

representative, their funds shall be

disbursed to them. All such

disbursements will be made at such

convenient times and places as the

Secretary or his authorized

representatives may designate.

§ 115.102 Adults under legal disability.

The funds of an adult who is non

compos mentis or under other legal

disability may be disbursed for his

benefit for such purposes deemed to be

for his best interest and welfare, or the

funds may be disbursed to a legal

guardian or curator under such

conditions as the Secretary or his

authorized representative may

prescribe.

§ 115.103 Payments by other Federal

agencies.

Moneys received from the Veterans

Administration or other Government

agency pursuant to the Act of February

25, 1933 (47 Stat. 907; 25 U.S.C. 14),

may be accepted and administered for

the benefit of adult Indians under legal

disability or minors for whom no legal

guardian or fiduciary has been

appointed.

§ 115.104 Restrictions.

Funds of individuals may be applied

by the Secretary or his authorized

representative against delinquent claims

of indebtedness to the United States or

any of its agencies or to the tribe of

which the individual is a member,

unless such payments are prohibited by

acts of Congress, and against money

judgments rendered by courts of Indian

offenses or under any tribal law and

order code. Funds derived from the sale

of capital assets which by agreement

approved prior to such sale by the

Secretary or his authorized

representative are to be expended for

specific purposes, and funds obligated

under contractual arrangements

approved in advance by the Secretary or

his authorized representative or subject

to deductions specifically authorized or

directed by acts of Congress, shall be

disbursed only in accordance with the

agreements (including any subsequently

approved modifications thereof) or acts

of Congress. The funds of an adult

whom the Secretary or his authorized

representative finds to be in need of

assistance in managing his affairs, even

though such adult is not non compos

mentis or under other legal disability,

may be disbursed to the adult, within

his best interest, under approved plans.

Such finding and the basis for such

finding shall be recorded and filed with

the records of the account. For rules

7098 Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations

governing the payment of judgments

from individual Indian money accounts,

see § 11.208 of this chapter.

§ 115.105 Funds of deceased Indians of

the Five Civilized Tribes.

Funds of a deceased Indian of the

Five Civilized Tribes may be disbursed

to pay ad valorem and personal property

taxes, Federal and State estate and

income taxes, obligations approved by

the Secretary or his authorized

representative prior to death of

decedent, expenses of last sickness and

burial and claims found to be just and

reasonable which are not barred by the

statute of limitations, costs of

determining heirs to restricted property

by the State courts, and claims allowed

pursuant to part 16 of this chapter.

§ 115.106 Assets of members of the Agua

Caliente Band of Mission Indians.

(a) The provisions of this section

apply to money or other property,

except real property, held by the United

States in trust for such Indians, which

may be used, advanced, expended,

exchanged, deposited, disposed of,

invested, and reinvested by the Director,

Palm Springs Office, in accordance with

the Act of October 17, 1968 (Pub. L. 90–

597). The management or disposition of

real property is covered in other parts of

this chapter.

(b) Investments made by the Director,

Palm Springs Office, under the Act of

October 17, 1968, supra, shall be of such

a nature as will afford reasonable

protection of the assets of the individual

Indian involved. The Director is

authorized to enter into contracts for the

management of the assets (except real

property) of individual Indians. The

consent of the individual Indian

concerned must be obtained prior to the

taking of actions affecting his assets,

unless the Director determines, under

the provisions of section (e) of the Act,

that consent is not required.

(c) The Director may, consistent with

normal business practices, establish

appropriate fees for reports he requires

from guardians, conservators, or other

fiduciaries appointed under State law

for members of the Band.

§ 115.107 Appeals.

Appeals from an action taken by an

official of the Bureau of Indian Affairs

may be taken pursuant to 25 CFR part

2, subject to the terms of subpart E.

Subpart C—IIM Accounts: Minors

§ 115.400 Will a minor’s IIM account

always be supervised?

Yes, all IIM accounts established by

BIA for minors will be a supervised by

the BIA.

§ 115.401 What is a minor’s supervised

account?

A minor’s supervised account is a

restricted IIM account from which all

disbursements must be made pursuant

to a distribution plan approved by the

BIA that is established for:

(a) A minor, or

(b) An emancipated minor.

§ 115.402 Will a minor have access to

information about his or her account?

A minor will not have access to

information about his or her IIM

account without approval of the

custodial parent(s) or legal guardian.

However, an emancipated minor will

have access to information about his or

her IIM account.

§ 115.403 Who will receive information

regarding a minor’s supervised account?

(a) The parent(s) with legal custody of

the minor or the minor’s legal guardian

will receive a minor’s statement of

performance at the address of record for

the minor’s supervised account.

(b) An emancipated minor will

receive his or her statement of

performance at the address of record for

the minor’s supervised account.

§ 115.404 What information will be

provided in a minor’s statement of

performance?

A minor’s statement of performance

will identify the source, type, and status

of the funds deposited and held in the

account; the beginning balance; the

gains and losses; receipts and

disbursements, if any; and the ending

balance of the quarterly statement

period for the minor’s supervised

account.

§ 115.405 How frequently will a minor’s

statement of performance be mailed?

We will mail a minor’s statement of

performance to the address of record

quarterly, within and no later than 20

business days after the close of the

quarterly statement period.

§ 115.406 Who provides an address of

record for a minor’s supervised account?

(a) The custodial parent or the legal

guardian must provide an address to the

BIA and this address will be the address

of record for the minor’s supervised

account. Where applicable, a parent or

legal guardian must provide a copy of

the custodial order or guardianship

order from a court of competent

jurisdiction when providing the address

of record for the minor’s supervised IIM

account.

(b) The emancipated minor must

provide his or her address of record to

the BIA.

(c) Upon receipt of the change of

address of record from the parent or

legal guardian, the BIA must provide the

change of the address of record to the

OTFM.

§ 115.407 How is an address of record for

a minor’s supervised account changed?

(a) To change an address of record for

a minor’s supervised IIM account, a

custodial parent(s), legal guardian, or

emancipated minor must provide BIA

with the following information:

(1) The minor’s or emancipated

minor’s name;

(2) The name of the custodial

parent(s) or legal guardian, if applicable;

(3) A custody order from a court of

competent jurisdiction or a copy of a

guardianship, if applicable;

(4) The new address of the custodial

parent(s), legal guardian, or

emancipated minor; and

(5) The signature, mark or thumb

print of a custodial parent, legal

guardian, or emancipated minor that has

been notarized by a notary public and/

or witnessed by a DOI employee who

has been shown verifiable photo

identification. See § 115.410

(b) When requesting a change of an

address of record, the following

information will further assist us to

identify the minor’s account:

(1) The minor’s or emancipated

minor’s IIM account number;

(2) The minor’s or emancipated

minor’s date of birth;

(3) The minor’s or emancipated

minor’s tribal enrollment number; and

(4) The minor’s or emancipated

minor’s social security number.

§ 115.408 May a minor’s supervised

account have more than one address on file

with the BIA?

Yes, a minor’s supervised account

may have more than one address on file

with the BIA. We request that the

parent, legal guardian, or the person

who has been recognized by the BIA as

having control and custody of the

minor, notify us of the following

addresses for the minor:

(a) The minor’s residence;

(b) The address of record where the

statement of performance will be

mailed;

(c) The address where disbursement

checks will be mailed or financial

institution information for direct

deposits of trust funds as authorized

under an approved distribution plan.

§ 115.409 How is an address for a minor’s

residence changed?

(a) To change an address for a minor’s

residence, the custodial parent, legal

guardian, or the person who has been

recognized by the BIA as having control

and custody of the minor must provide

BIA with the following information:

Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations 7099

(1) The minor’s name;

(2) The name of the custodial

parent(s) or legal guardian;

(3) A copy of a custodial order from

a court of competent jurisdiction or a

guardianship order, where applicable;

(4) The new address of the minor’s

residence; and

(5) The signature, mark or thumb

print of the individual who is providing

the updated address for the minor’s

residence that has been notarized by a

notary public and/or witnessed by a DOI

employee who has been shown

verifiable photo identification. See

§ 115.410

(b) When requesting a change of an

address for a minor’s residence, the

following information will further assist

us to identify the minor’s account:

(1) The minor’s IIM account number;

(2) The minor’s date of birth;

(3) The minor’s tribal enrollment

number (if known); and

(4) The minor’s social security

number (where known).

§ 115.410 What types of identification will

the BIA or OTFM accept as ‘‘verifiable photo

identification’’?

BIA or OTFM will accept the

following forms of identification as

‘‘verifiable photo identification’’:

(a) A valid driver’s license;

(b) A government-issued photo

identification card, such as a passport,

security badge, etc.; or

(c) A tribal photo identification card.

§ 115.411 What if the individual making a

request regarding a minor’s supervised

account does not have any verifiable photo

identification?

If the individual making a request

regarding a minor’s supervised account

does not have any verifiable photo

identification, the individual may make

a request in person at the BIA and we

will talk with the individual and review

information in the minor’s file to see if

we can attest to the individual’s

identity. If we cannot establish the

identity of the individual, we will not

accept the request.

§ 115.412 Will child support payments be

accepted for deposit into a minor’s

supervised account?

The Secretary will not accept child

support payments for deposit into a

minor’s supervised account.

§ 115.413 Who may receive funds from a

minor’s supervised account?

A custodial parent, a legal guardian,

a person who has been recognized by

the BIA as having control and custody

of the minor, or an emancipated minor

may be eligible to withdraw funds from

a minor’s supervised account if there is

an authorized disbursement request that

is based upon the terms of a BIAapproved distribution plan.

§ 115.414 What is an authorized

disbursement request?

An authorized disbursement request

is the form or letter that must be

approved by the BIA that specifies the

funds to be disbursed from an IIM

account. The authorized disbursement

request may not be issued to disburse

funds from a minor’s supervised

account unless an approved distribution

plan exists, the amount to be disbursed

is in conformity with the distribution

plan and the disbursement will be made

to an individual or third party specified

in the plan.

§ 115.415 How will an authorized

disbursement from a minor’s supervised

account be sent?

OTFM will make an authorized

disbursement based on the approved

distribution plan from a minor’s

supervised account by:

(a) Making a direct deposit to a

specified account at a financial

institution (a direct deposit into the

specified account will eliminate lost,

stolen or damaged checks and will also

eliminate delays associated with

mailing the check);

(b) Mailing a check to the address of

record or to a specified disbursement

address; or

(c) Mailing a check to a specified third

party’s address.

§ 115.416 Will the United States post office

forward mail regarding a minor’s

supervised account to a forwarding address

left with the United States post office?

(a) Federal law does not allow the

United States post office to forward

checks that are issued by the federal

government. Therefore, a check from a

minor’s supervised account will not be

forwarded to an address left with the

United States post office. The new

address of record must be provided

directly to BIA.

(b) Where a forwarding address has

been provided to the United States post

office, the United States post office will

forward a statement of performance and

general correspondence regarding a

minor’s supervised account that is

mailed to the minor’s address of record

for a limited time period. However, it is

the responsibility of a custodial parent,

legal guardian, or emancipated minor to

give BIA the new address of record for

the minor’s supervised account.

§ 115.417 What portion of funds in a

minor’s supervised account may be

withdrawn under a distribution plan?

Trust money in a minor’s supervised

account will not be distributed without

a review of other resources that may be

available to meet the needs of the minor.

Any trust funds of a minor that are

distributed must be used for the direct

benefit of the minor and in accordance

with any additional limitations (e.g.,

statutory, court order, tribal resolution,

etc.) placed on the use of specific trust

funds. Allowable uses may include

health, education, or welfare when

based upon a justified unmet need. The

BIA will require receipts for

expenditures of funds disbursed from a

minor’s account to a custodial parent,

legal guardian, person who has been

recognized by the BIA as having control

and custody of the minor, or an

emancipated minor.

§ 115.418 What types of trust funds may a

minor have?

A minor may have one or more of the

following types of trust funds:

(a) Judgment per capita funds:

Withdrawals may only be made upon

BIA approval of an application made

under Public Law 97–458. See 25 CFR

1.2.

(b) Tribal per capita funds:

Withdrawals may only be made under a

BIA approved distribution plan and in

accordance with the terms of the tribe’s

per capita resolution/document.

(c) Other trust funds: Withdrawals

may only be made under a minor’s BIAapproved distribution plan that is based

on a justified unmet need for the

minor’s health, education, or welfare.

(d) Funds from other federal agencies

(e.g., SSA, SSI, VA) received for the

benefit of the minor: Withdrawals must

be made only under a BIA-approved

distribution plan that must be consistent

with the disbursing agency’s (e.g., SSA,

SSI, VA) allowable uses for the funds.

§ 115.419 Who develops a minor’s

distribution plan?

A social service provider will develop

a minor’s distribution plan for approval

by the BIA after evaluating the needs of

the minor in consultation with a

custodial parent, a legal guardian, the

person who has been recognized by the

BIA as having control and custody of

the minor, or emancipated minor. A

minor’s distribution plan may only

provide for those expenditures outlined

in part § 115.417.

§ 115.420 When developing a minor’s

distribution plan, what information must be

considered and included in the evaluation?

When developing a minor’s

distribution plan, the following

information must be considered and

included in the evaluation:

(a) Documentation which establishes

who has physical custody of the minor

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(e.g., home visits, school records,

medical records, etc.);

(b) A copy of any custodial orders or

guardianship orders from a court of

competent jurisdiction;

(c) The name(s) of the person and his

or her relationship to the minor, if any,

who make a request for a disbursement

from the minor’s account;

(d) An evaluation of other resources,

including parental income, that may be

available to meet the unmet needs of the

minor;

(e) A list of the amounts, purposes,

and dates for which disbursements will

be made;

(f) The name(s) of the person to whom

disbursements may be made, including,

as applicable:

(1) A custodial parent;

(2) A legal guardian;

(3) The person who has been

recognized by the BIA as having control

and custody of the minor;

(4) An emancipated minor; and/or

(5) Any third parties to whom the BIA

will make direct payment for goods or

services provided to the minor and

supported by an invoice or bill of sale;

(g) The date(s) (at least every six

months) when the custodial parent, the

legal guardian, the person who has been

recognized by the BIA as having control

and custody of the minor, or the

emancipated minor must provide

receipts to the BIA to show that

expenditures were made in accordance

with the approved distribution plan;

(h) Additional requirements and

justification for those requirements, as

necessary to ensure that any

distribution(s) will benefit the minor;

(i) The dates the disbursement plan

was developed, approved, and

reviewed, and the date for the next

scheduled review;

(j) The date(s) the distribution plan

was amended and an explanation for

any amendment(s) to the distribution

plan, when an amendment is necessary;

(k) The signature of the BIA official

approving the plan with the certification

that the plan is in the best interest of the

account holder; and

(l) The signature(s) of the custodial

parent, legal guardian, with date(s)

signed, certifying that he or she has

been consulted and has agreed to the

terms of the evaluation and the

distribution plan.

§ 115.421 What information will be

included in the copy of the minor’s

distribution plan that will be provided to

OTFM?

A minor’s distribution plan must

contain the following:

(a) A copy of any custodial order or

guardianship order from a court of

competent jurisdiction;

(b) A list of the amounts, purposes,

and dates for which disbursements will

be made;

(c) The name(s) of the person(s) to

whom disbursements may be made,

including, as applicable:

(1) A custodial parent;

(2) A legal guardian;

(3) The person who has been

recognized by the BIA as having control

and custody of the minor and the

address of that person;

(4) An emancipated minor; and/or

(5) Any third parties and the

address(es) of the third parties to whom

the direct payment will be made for

goods or services provided to the minor

and supported by an invoice or bill of

sale, where applicable;

(d) The date that the disbursement

plan was approved and the expiration

date of the distribution plan; and

(e) The date and signature of the BIA

official approving the plan with a

certification that the plan is in the best

interest of the account holder.

§ 115.422 As a custodial parent, the legal

guardian, the person who BIA has

recognized as having control and custody

of the minor, or an emancipated minor,

what are your responsibilities if you receive

trust funds from a minor’s supervised

account?

If you are a custodial parent, the legal

guardian, the person who BIA has

recognized as having control and

custody of the minor, or an emancipated

minor who receives funds from a

minor’s supervised account, you must:

(a) Consult with the social service

provider on the development of an

evaluation;

(b) Sign an acknowledgment that you

have reviewed the evaluation;

(c) Follow the terms of a distribution

plan approved by the BIA;

(d) Follow any applicable court order;

(e) Provide receipts to the social

services provider in accordance with

terms of the evaluation for all expenses

paid out of the minor’s IIM funds;

(f) Review the statements of

performance for the supervised account

for discrepancies, if applicable;

(g) File tax returns on behalf of the

account holder, if applicable; and

(h) Notify the social service provider

of any change in circumstances that

impairs your performance of your

obligations under this part or inform the

social service provider of any

information regarding misuse of a

minor’s trust funds.

§ 115.423 If you are a custodial parent, a

legal guardian, or an emancipated minor,

may BIA authorize the disbursement of

funds from a minor’s supervised account

without your knowledge?

At the Secretary’s discretion, the BIA

may authorize the disbursement of

funds from a minor’s supervised

account for the benefit of the minor.

§ 115.424 Who receives a copy of the BIAapproved distribution plan and any

amendments to the plan?

The BIA-approved distribution plan

will be provided to:

(a) The custodial parent; or

(b) A legal guardian; or

(c) At the Secretary’s discretion, in

unusual circumstances, to a family

member who has been recognized as

having control and custody of the

minor; or

(d) An emancipated minor; and

(e) OTFM.

§ 115.425 What will we do if we find that

a distribution plan has not been followed or

an individual has acted improperly in regard

to his or her duties involving a minor’s trust

funds?

If we find that a distribution plan has

not been followed or that a custodial

parent, a legal guardian, or the person

who has been recognized by the BIA as

having control and custody of the minor

has failed to satisfactorily account for

expenses or has not used the minor’s

funds for the primary benefit of the

minor, we will:

(a) Notify the individual; and

(b) Take action to protect the interests

of the minor, which may include:

(1) Referring the matter for civil or

criminal legal action;

(2) Demanding repayment from the

individual who has improperly

expended trust funds or failed to

account for the use of trust funds;

(3) Liquidating a bond posted by the

legal guardian, where applicable, to

recover improperly expended trust

funds up to the amount of the bond; or

(4) Immediately modifying the

distribution plan for up to sixty days,

including suspending the authority of

the individual to receive further

disbursements.

§ 115.426 What is the BIA’s responsibility

regarding the management of a minor’s

supervised account?

The BIA’s responsibility in regard to

the management of a minor’s supervised

account is to:

(a) Review and approve the evaluation

and the distribution plan;

(b) Authorize OTFM to disburse IIM

funds in accordance with an approved

distribution plan; and

(c) Conduct annual reviews of case

records for minors’ supervised accounts

Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations 7101

to ensure that the social service

providers have managed the accounts in

accordance with the approved

evaluation and distribution plan.

§ 115.427 What is the BIA’s annual review

process for a minor’s supervised account?

A BIA social worker with an MSW

will conduct an annual review of

minors’ supervised accounts by:

(a) Verifying that all receipts for

disbursements made under a

distribution plan were collected in

accordance with the terms specified in

the evaluation;

(b) Reviewing the receipts for

disbursements made from a minor’s

supervised account to ensure that all

expenditures were made in accordance

with the distribution plan;

(c) Reviewing all case worker reports

and notes;

(d) Reviewing account records to

insure that withdrawals and payments

were made in accordance with the

distribution plan;

(e) Verifying current addresses,

including the address of record, the

address of the minor’s residence, and

the disbursement address; and

(f) Deciding whether the distribution

plan needs to be modified.

§ 115.428 Will you automatically receive all

of your trust funds when you reach the age

of 18?

No, we will not automatically send

your trust funds to you when you reach

the age of 18.

§ 115.429 What do you need to do when

you reach 18 years of age to access your

trust funds?

You must contact OTFM to request

withdrawal of any or all of your trust

funds that may be available to you.

OTFM may require certain information

from you to verify your identity, etc.

prior to the release of your trust funds.

All signatures must be notarized by a

notary public or witnessed by a DOI

employee. In addition, if you choose to

have a check mailed to you, you must

provide us with your address of record.

If you choose to have your trust funds

electronically transferred to you, you

must provide your financial institution

account information to OTFM.

§ 115.430 Will your account lose its

supervised status when you reach the age

of 18?

Your account will no longer be

supervised when you reach the age of 18

unless statutory language or a tribal

resolution specifies an age other than 18

years of age for access to specific trust

funds. However, if a court of competent

jurisdiction has found you to be noncompos mentis, under legal disability,

or the BIA has determined you to be an

adult in need of assistance, your

account will remain supervised and you

will be notified in accordance with

subpart E.

§ 115.431 If you are an emancipated minor

may you withdraw trust funds from your

account?

If you are an emancipated minor, you

may have access to some or all of your

trust funds as follows:

(a) For judgment per capita funds: you

may not make withdrawals from your

account until you have reached the age

specified in the judgment. Exceptions

are only granted upon the approval of

an application made under Public Law

97–458. See 25 CFR 1.2.

(b) Tribal per capita funds: access to

these funds will be determined by tribal

resolution.

(c) Other trust funds: You may be able

to have supervised access to some or all

of your funds, but the BIA must approve

all requests for withdrawals from your

account. You must work with the BIA

to develop a distribution plan to access

the funds in your account. In no

instance will the BIA allow an

emancipated minor to make

unsupervised withdrawals.

(d) For funds from other federal

agencies (e.g., SSA, SSI, VA), you may

be able to receive funds directly, but

you must contact and make

arrangements with the other federal

agency. Direct receipt of funds from

another federal agency will not change

the supervised status of an emancipated

minor’s trust account.

Subpart D—IIM Accounts: Estate

Accounts

§ 115.500 When is an estate account

established?

An estate account is established when

we receive notice of an account holder’s

death.

§ 115.501 How long will an estate account

remain open?

An estate account will remain open

until the funds have been distributed in

accordance with the distribution and/or

probate order.

§ 115.502 Who inherits the money in an IIM

account when an account holder dies?

At the end of all probate procedures,

funds remaining in a decedent’s estate

account will be distributed from the

decedent’s estate account and paid

directly to or deposited into an IIM

account of the decedent’s heirs,

beneficiaries, or other persons or

entities entitled by law to receive the

funds, where applicable. See 25 CFR

part 15.

§ 115.503 May money in an IIM account be

withdrawn after the death of an account

holder but prior to the end of the probate

proceedings?

(a) If you are responsible for making

the funeral arrangements of a decedent

who had an IIM account and you have

an immediate need for emergency

assistance to pay for funeral

arrangements prior to burial, you may

make a request to the BIA for up to

$1,000 from the decedent’s IIM account

if the decedent’s IIM account has more

than $2,500 in the account at the date

of death.

(b) You must apply for this assistance

and submit to the BIA an original

itemized estimate of the cost of the

service to be rendered and the

identification of the service provider.

(c) We may approve reasonable costs

up to $1,000 that are necessary for the

burial services.

(d) We will make payments directly to

the providers of the service(s).

§ 115.504 If you have a life estate interest

in income-producing trust assets, how will

you receive the income?

If you have a life estate interest in

income-producing trust assets, which is

earning income, OTFM will open an

IIM-life estate account for you and funds

will be distributed after BIA has

certified ownership of the trust funds.

Subpart E—IIM Accounts: Hearing

Process for Restricting an IIM Account

§ 115.600 If BIA decides to restrict your IIM

account under § 115.102 or § 115.104, what

procedures must the BIA follow?

If under § 115.102 or § 115.104, the

BIA has decided to limit your access to

your IIM account (i.e., decided to

supervise the IIM account), or if the BIA

has decided to pay creditors with funds

from your IIM account, including

creditors with judgments from Courts of

Indian Offenses for which preliminary

procedures are prescribed in 25 CFR

11.208, the BIA must notify you or your

guardian, as applicable, to provide you

or your guardian, as applicable, with an

opportunity to challenge the BIA’s

decision to restrict your IIM account as

specified in subpart E.

§ 115.601 Under what circumstances may

the BIA restrict your IIM account through

supervision or an encumbrance?

(a) The BIA may restrict your IIM

account through supervision if the BIA:

(1) Receives an order from a court of

competent jurisdiction that you are noncompos mentis; or

(2) Receives an order or judgment

from a court of competent jurisdiction

that you are an adult in need of

assistance because you are ‘‘incapable of

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managing or administering property,

including your financial affairs;’’ or

(3) Determines through an

administrative process that you are an

adult in need of assistance based on a

finding by a licensed medical or mental

health professional that you are

‘‘incapable of managing or

administering property, including your

financial affairs;’’ or

(4) Receives information from another

federal agency that you are under a legal

disability and that the agency has

appointed a representative payee to

receive federal benefits on your behalf.

(b) The BIA may restrict your IIM

account through an encumbrance if the

BIA:

(1) Receives an order from a court of

competent jurisdiction awarding child

support from your IIM account; or

(2) Receives from a third party:

(i) A copy of the original contract

between you and the third party in

which you used your IIM funds as

security/collateral for the transaction;

(ii) A copy of the document showing

that the BIA approved in advance the

use of your IIM funds as security/

collateral for the contract;

(iii) Proof of your default on the

contract according to the terms of the

contract; and

(iv) A copy of the original assignment

of IIM income as security/collateral for

the contract that is signed and dated by

you and is notarized;

(3) Receives a money judgment from

a Court of Indian Offenses pursuant to

25 CFR 11.208 or under any tribal law

and order code;

(4) Is provided documentation

showing that BIA or OTFM caused an

administrative error which resulted in a

deposit into your IIM account, or a

disbursement to you, or to a third party

on your behalf; or

(5) Is provided with proof of debts

owed to the United States pursuant to

§ 115.104 of this part.

§ 115.602 How will the BIA notify you or

your guardian, as applicable, of its decision

to restrict your IIM account?

The BIA will notify you or your

guardian, as applicable, of its decision

to restrict your IIM account by:

(a) United States certified mail to your

address of record;

(b) Personal delivery to you or your

guardian, as applicable, or to your

address of record;

(c) Publication for four consecutive

weeks in your tribal newspaper if your

whereabouts are unknown and in the

local newspaper serving your last

known address of record; or

(d) United States certified mail to you

in care of the warden, if you are

incarcerated. The BIA may send a copy

of the notification to your attorney, if

known.

§ 115.603 What happens if BIA’s notice of

its decision to place a restriction on your

IIM account that is sent by United States

certified mail is returned to the BIA as

undeliverable for any reason?

If BIA’s notice of its decision to place

a restriction on your IIM account that is

sent by United States certified mail is

returned to the BIA as undeliverable for

any reason, the BIA will remove the

restriction on your account, which was

placed five days after the notice was

mailed, and will publish a notice in

accordance with § 115.602(c) and

§ 115.605(b).

§ 115.604 When will BIA authorize OTFM to

place a restriction on your IIM account?

BIA will authorize OTFM to place a

restriction on your IIM account after

providing OTFM with supporting

documentation (i.e., receipts, notice of

publication, etc.) of the following:

(a) Five (5) days after the date BIA

mails you or your guardian, as

applicable, notice of its decision to

restrict your account by United States

certified mail to your address of record;

(b) One (1) day after BIA has made

personal delivery to you or your

guardian, as applicable, or to your

address of record of its notice of the

BIA’s decision to restrict your account;

or

(c) Five (5) days after the fourth

publication of the public notice of BIA’s

decision to restrict your account.

§ 115.605 What information will the BIA

include in its notice of the decision to

restrict your IIM account?

(a) When the BIA provides notice of

its decision to restrict your IIM account

by certified mail or personal delivery to

you or your guardian, as applicable, the

notice must contain:

(1) The name on the IIM account;

(2) The reason for the restriction;

(3) The amount to be encumbered, if

applicable;

(4) A statement that your IIM account

will be restricted 5 days after the date

the notice was sent United States

certified mail to your address of record;

(5) An explanation that you have 40

days from the date the notice was sent

United States certified mail to request a

hearing to challenge BIA’s decision to

restrict your IIM account;

(6) An explanation of how to request

a hearing;

(7) A statement that the BIA will

conduct the hearing and that you are

assured a fair hearing;

(8) A copy of the fair hearing

guidelines;

(9) A statement that you may contact

the BIA to authorize immediate

payment from your IIM account to pay

the claim, if applicable;

(10) The address and phone number

of the BIA office that made the decision

to restrict your IIM account and

provided the notice; and

(11) Other information as may be

determined appropriate by the BIA.

(b) When the BIA provides public

notice of its decision to restrict your

account, the only information the public

notice will include is:

(1) The name on the account;

(2) The date of first publication of the

public notice;

(3) A statement that the BIA has

decided to place a restriction on your

IIM account;

(4) A statement that the public notice

will be published once a week for four

consecutive weeks;

(5) A statement that the BIA will place

a restriction on your account five (5)

days after the date of the fourth

publication of the public notice;

(6) A statement that your opportunity

to request a hearing to challenge BIA’s

decision to restrict your account will

expire 30 days after the date of the

fourth publication of the public notice;

and

(7) An address and telephone number

of the BIA office publishing the notice

to request further information and

instructions on how to request a

hearing.

§ 115.606 What happens if you do not

request a hearing to challenge BIA’s

decision to restrict your IIM account during

the allotted time period?

If you or your guardian, as applicable,

do not request a hearing to challenge

BIA’s decision to restrict your IIM

account during the allotted time period,

BIA’s decision to restrict your IIM

account will become final. BIA will

follow the procedures outlined in

§ 115.616 through § 115.618, and

§ 115.620, as applicable.

§ 115.607 How do you request a hearing to

challenge the BIA’s decision to restrict your

IIM account?

You or your guardian, as applicable,

must request a hearing to challenge the

BIA’s decision to restrict your IIM

account from the BIA office that made

the decision and notified you of the

restriction. Your request must:

(a) Be in writing;

(b) Specifically request a hearing to

challenge the restriction; and

(c) Be hand delivered to the BIA office

or postmarked within:

(i) 40 days of the date that BIA’s

notice was sent United States certified

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mail or personally delivered to the

address of record, or

(ii) 30 days of the date of the final

publication of the public notice.

§ 115.608 If you request a hearing to

challenge BIA’s decision to restrict your IIM

account, when will BIA conduct the

hearing?

BIA will conduct a hearing within ten

(10) working days from its receipt of a

written request from you or your

guardian, as applicable, for a hearing to

challenge the decision to restrict your

IIM account.

§ 115.609 Will you be allowed to present

testimony and/or evidence at the hearing?

Yes, you or your guardian, as

applicable, will be provided the

opportunity to present testimony and/or

evidence as to the reasons the BIA

should not restrict your IIM account,

including information showing how an

encumbrance may create an undue

financial hardship, if applicable. You

may not challenge a court order or

judgment in this proceeding. However,

if you have appealed an order or

judgment from a court of competent

jurisdiction, you or your guardian, as

applicable, may present evidence of

your appeal and the BIA hearing will be

postponed until there is a final order

from the court. The restriction on your

IIM account will remain in place until

after the hearing is concluded.

§ 115.610 Will you be allowed to present

witnesses during a hearing?

Yes, you or your guardian, as

applicable, may present witnesses

during a hearing. You are responsible

for any and all expenses which may be

associated with presenting witnesses.

§ 115.611 Will you be allowed to question

opposing witnesses during a hearing?

Yes, you or your guardian, as

applicable, may question all opposing

witnesses testifying during your

hearing. You may also present witnesses

to challenge opposing witness

testimony.

§ 115.612 May you be represented by an

attorney during your hearing?

Yes, you may have an attorney or

other person represent you during your

hearing. However, you are responsible

for any and all expenses associated with

having an attorney or other person

represent you.

§ 115.613 Will the BIA record the hearing?

Yes, the BIA will record the hearing.

§ 115.614 Why is the BIA hearing

recorded?

The BIA hearing will be recorded so

that it will be available for review if the

hearing process is appealed under

§ 115.107. The BIA hearing record must

be preserved as a trust record.

§ 115.615 How long after the hearing will

BIA make its final decision?

BIA will make its final decision

within 10 business days of the end of

the hearing.

§ 115.616 What information will be

included in BIA’s final decision?

BIA’s final written decision to the

parties involved in the proceeding will

include:

(a) BIA’s decision to remove or retain

the restriction on the IIM account;

(b) A detailed justification for the

supervision or encumbrance of the IIM

account, where applicable;

(c) The amount(s) to be paid, the

name and address of a third party to

whom payment will be made, and the

time period for repayment established

under 617(a) of this part, where

applicable;

(d) Any provision to allow for

distributions to the account holder

because of an undue financial hardship

created by the encumbrance, if

applicable; and

(e) Any other information the hearing

officer deems necessary.

§ 115.617 What happens when the BIA

decides to supervise or encumber your IIM

account after your hearing?

BIA will provide OTFM with a copy

of the distribution plan, after the BIA

decides to:

(a) Supervise your IIM account. BIA

social services staff will consult with

you and/or your guardian to develop a

distribution plan. Upon BIA approval,

the distribution plan will be valid for

one year.

(b) Encumber your IIM account. BIA

will review your account balance and

your future IIM income to develop a

distribution plan that establishes the

amount(s) to be paid and the dates

payment(s) will be made to the specified

party. Payments may need to be made

over the course of one or more years if

the amount owed to the specified party

is greater than your current IIM account

balance.

§ 115.618 What happens if at the

conclusion of the notice and hearing

process we decide to encumber your IIM

account because of an administrative error

which resulted in funds that you do not own

being deposited in your account or

distributed to you or to a third party on your

behalf?

If we decide at the conclusion of the

notice and hearing process to encumber

your account because of an

administrative error which resulted in

funds that you do not own being

deposited into your IIM account or

distributed to you or to a third party on

your behalf, we will consult with you or

your guardian, as applicable, to

determine how the funds will be repaid.

§ 115.619 If the BIA decides that the

restriction on your IIM account will be

continued after your hearing, do you have

the right to appeal that decision?

Yes, if the BIA decides after your

hearing to continue the restriction on

your IIM account, you or your guardian,

as applicable, have the right to appeal

the decision under the procedures

proscribed in § 115.107.

§ 115.620 If you decide to appeal the BIA’s

final decision pursuant to § 115.107, will the

BIA restrict your IIM account during the

appeal?

Yes, if under § 115.107 you or your

guardian, as applicable, decide to

appeal the BIA’s final decision to:

(a) Supervise your IIM account, your

IIM account will remain restricted

during the appeal period.

(b) Encumber your IIM account, your

IIM account will remain restricted up to

the amount at issue during the appeal

period. If your account balance is

greater than the amount encumbered,

those funds will be available to you

upon request to and by approval of the

Secretary.

Subpart F—Trust Fund Accounts:

General Information

§ 115.700 Why is money held in trust for

tribes and individual Indians?

Congress has passed a number of laws

that require the Secretary to establish

and administer trust fund accounts for

Indian tribes and certain individual

Indians who have an interest(s) in trust

lands, trust resources, or trust assets.

§ 115.701 What types of accounts are

maintained for Indian trust funds?

Indian trust funds are deposited in

tribal accounts, Individual Indian

Money (IIM) accounts, and special

deposit accounts. The illustration below

provides information on each of these

trust accounts.

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BILLING CODE 4310–02–C

§ 115.703 May we accept for deposit into a

trust account money not specified in

§ 115.702?

No, we will not accept funds from

sources that are not identified in the

table in § 115.702 for deposit into a trust

account.

§ 115.704 May we accept for deposit into a

trust account retirement checks/payments

or pension fund checks/payments even

though those funds are not specified in

§ 115.702?

No, we will not accept retirement

checks/payments or pension fund

checks/payments or any funds from

sources that are not identified in the

table in § 115.702 for deposit into a trust

account.

§ 115.705 May we accept for deposit into a

trust account money awarded or assessed

by a court of competent jurisdiction?

We will accept money awarded or

assessed by a court of competent

jurisdiction for a cause of action directly

related to trust assets to be deposited

into a trust account. Other funds

awarded by a court of competent

jurisdiction may not be deposited into a

trust account.

§ 115.706 When funds are awarded or

assessed by a court of competent

jurisdiction in a cause of action involving

trust assets, what documentation is

required to deposit the trust funds into a

trust account?

When funds are awarded or assessed

by a court of competent jurisdiction in

a cause of action involving trust assets,

we must receive the funds awarded as

stipulated in the court order and a copy

of the court’s order.

§ 115.707 Will the Secretary accept

administrative fees for deposit into a trust

account?

No. The Secretary will not accept

administrative fees for deposit into a

trust account because administrative

fees are not trust funds. However,

administrative fees may be deposited

into a non-interest bearing, non-trust

account with the BIA.

§ 115.708 How quickly will trust funds

received by the Secretary on behalf of

tribes or individual Indians be deposited

into a trust account?

Trust funds received by the Secretary

on behalf of a tribe or individual Indians

will be deposited into a trust account

within twenty-four hours, or no later

than the close of business on the next

business day following the receipt of

funds at a location with a designated

federal depository.

§ 115.709 Will an annual audit be

conducted on trust funds?

Yes, in accordance with the Trust

Reform Act an annual audit will be

conducted on trust funds. Each tribe

and IIM account holder will be notified

when the Secretary has conducted an

annual audit on a fiscal year basis of all

the trust funds held by the United States

for the benefit of tribes and individual

Indians. This notice will be provided in

the first quarterly statement of

performance following the publication

of the audit.

Investments and Interests

§ 115.710 Does money in a trust account

earn interest?

Yes, all money deposited in a trust

account is invested and earns interest or

yield returns, or both.

§ 115.711 How is money in a trust account

invested?

OTFM manages trust fund

investments and its investment

decisions are governed by federal

statute. See 25 U.S.C. §§ 161(a) and

162a.

§ 115.712 What is the interest rate earned

on money in a trust account?

The rate of interest on a trust account

changes based on how the money is

invested and how those investments

perform.

§ 115.713 When does money in a trust

account start earning interest?

Funds must remain on deposit at least

one business day before interest is

earned. Interest earnings of less than

one cent are not credited to any account.

Subpart G—Tribal Accounts

§ 115.800 When does OTFM open a tribal

account?

A tribal account is opened when

OTFM receives income from the sources

described in § 115.702.

§ 115.801 How often will a tribe receive

information about its trust account(s)?

The OTFM is required to provide each

tribe with a statement of performance

quarterly, within or no later than 20

business days after the close of every

quarterly statement period.

§ 115.802 May a tribe make a request to

OTFM to receive information about its trust

account more frequently?

Yes, a tribe may contact OTFM at any

time to:

(a) Request information about account

transactions and balances;

(b) Make arrangements to access

account information electronically; or

(c) Receive a monthly statement.

§ 115.803 What information will be

provided in a statement of performance?

The statement of performance will

identify the source, type, and status of

the trust funds deposited and held in a

trust account; the beginning balance; the

gains and losses; receipts and

disbursements; and the ending account

balance of the quarterly statement

period.

§ 115.804 Will we account to a tribe for

those trust funds the tribe receives through

direct pay?

No, under the Trust Reform Act we

are only responsible for accounting for

those trust funds received into, and

maintained by, the Department’s trust

funds management system.

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§ 115.805 If a tribe is paid directly under a

contract for the sale or use of trust assets,

will we accept those trust funds for deposit

into a tribal trust account?

If a contract for the sale or use of trust

assets specifies that payments are to be

made directly to a tribe, we will not

accept these trust funds into a tribal

trust account. Where a tribe under 25

U.S.C. 450f et seq. has contracted or

compacted with the federal government

to operate a federal program and the

tribe, operating the federal program on

behalf of the Secretary, receives trust

funds for the sale or use of trust assets

pursuant to a contract that specifies that

payments are to be made to the

Secretary on behalf of a tribe or an

individual [the owner of the trust

assets], the tribe must follow § 115.708

for the deposit of the trust funds into the

trust account.

§ 115.806 How will the BIA assist in the

administration of tribal judgment fund

accounts?

(a) If the tribe requests assistance or

if Congress directs the Secretary to

provide assistance, BIA will provide

technical assistance on developing a

judgment use and distribution plan to a

tribe.

(b) BIA will review all tribal requests

for distribution of tribal judgment funds

to ensure that each request complies

with any requirements associated with

the use of that money found in statutory

language, congressional directives, court

orders, court-approved settlements,

settlement agreements, use and

distribution plans, or bond or loan

payments.

Investing and Managing Tribal Trust

Funds

§ 115.807 Will OTFM consult with tribes

about investments of tribal trust funds?

Upon the request of a tribe, OTFM

will consult with the tribe annually to

develop investment strategies to

accommodate the cash flow needs of the

tribe.

§ 115.808 Could trust fund investments

made by OTFM lose money?

The value of trust fund investments

made by OTFM will vary depending on

the type of investment and, including

but not limited to, the following:

(a) Current interest rates;

(b) Whether the security/investment is

held to its maturity; and

(c) Original purchase price.

However, as long as the purchase

price of the security/investment is made

at or below face value and the security/

investment is held until maturity or

payoff, the security/investment will not

lose principal invested funds.

§ 115.809 May a tribe recommend to OTFM

how to invest the tribe’s trust funds?

Tribes may recommend certain

investments to OTFM, but the

recommendations must be in

accordance with the statutory

requirements set forth in 25 U.S.C.

§§ 161a and 162a. The OTFM will make

the final investment decision based on

prudent investment practices.

§ 115.810 May a tribe directly invest and

manage its trust funds?

A tribe may apply to withdraw its

trust funds from OTFM for investment

and management by the tribe. The

tribe’s request to withdraw funds must

be in accordance with the requirements

of the Trust Reform Act and 25 CFR part

1200, subpart B, unless otherwise

specified by statutory language or the

controlling document which governs the

use of the trust funds.

§ 115.811 Under what conditions may a

tribe redeposit funds with OTFM that were

previously withdrawn under the Trust

Reform Act?

Tribal trust funds withdrawn under

the Trust Reform Act may be returned

to OTFM under the following

conditions:

(a) A tribe must make a written

request to OTFM to redeposit all or part

of the withdrawn trust funds;

(b) No tribal trust funds may be

redeposited to a tribal trust account

during the first six months after being

withdrawn, except with the approval of

the Secretary;

(c) Tribal trust funds may only be

returned to OTFM a maximum of twice

a year, except with the approval of the

Secretary; and

(d) A tribe must return withdrawn

trust funds in accordance with the

requirements of the Trust Reform Act in

25 CFR, part 1200, subpart C.

§ 115.812 Is a tribe responsible for its

expenditures of trust funds that are not

made in compliance with statutory

language or other federal law?

If a tribe’s use of trust funds is limited

by statutory language or other federal

law(s) and a tribe uses those trust funds

in direct violation of those laws, absent

an approved modification which allows

for the expenditures, we will require the

tribe to reimburse its trust fund account.

§ 115.813 Is there a limit to the amount of

trust funds OTFM will disburse from a tribal

trust account?

OTFM will only disburse the

available balance of the trust funds in a

tribal trust account in accordance with

a use and distribution plan, if

applicable, and will not overdraw a

tribal trust account. If a tribe’s trust

funds are invested in securities that

have not matured, OTFM will only sell

the asset to make cash available to the

tribe if:

(a) There are no restrictions against

the sale, and

(b) A tribe provides OTFM with a

tribal resolution stating that:

(1) The security must be sold;

(2) The tribe acknowledges that they

may incur a penalty when the security

is sold; and

(3) The tribe acknowledges that the

security may lose value if it is sold prior

to maturity.

§ 115.814 If a tribe withdraws money from

its trust account for a particular purpose or

project, may the tribe redeposit any money

that was not used for its intended purpose?

A tribe may redeposit funds not used

for a particular purpose or project if:

(a) The funds were withdrawn in

accordance with:

(1) The terms of Trust Reform Act;

(2) The terms of the legislative

settlement; or

(3) The terms of a judgment use and

distribution plan; and

(b) The tribe can provide

documentation showing the source of

the funds to be redeposited.

Withdrawing Tribal Trust Funds

§ 115.815 How does a tribe request trust

funds from a tribal trust account?

To request trust funds from a tribal

trust account, a tribe may:

(a) Make a written request to the BIA

or the OTFM that is signed by the

proper authorizing official(s), list the

amount of trust funds to be withdrawn,

provide any additional documentation

or information required by law to

withdraw certain trust funds, and must

include a tribal resolution approving the

withdrawal of the specified amount of

trust funds; or

(b) Contact the OTFM to withdraw

funds in accordance with the Trust

Reform Act and 25 CFR part 1200.

§ 115.816 May a tribe’s request for a

withdrawal of trust funds from its trust

account be delayed or denied?

(a) Action on a tribe’s request for a

withdrawal of trust funds may be

delayed or denied if:

(1) The tribe did not submit all the

necessary documentation;

(2) The tribe’s request is not signed by

the proper authorizing official(s);

(3) OTFM does not have

documentation from the tribe certifying

its recognized, authorizing officials;

(4) The tribe’s request is in conflict

with statutory language or the

controlling document governing the use

of the trust funds; or

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(5) The BIA or OTFM requires

clarification regarding the tribe’s

request.

(b) If action on a tribe’s request to

withdraw trust funds will be delayed or

denied, the BIA or the OTFM will:

(1) Notify the tribe within ten (10)

working days of the date of a request

made under § 115.815(a);

(2) Notify the tribe under the time

frames established in 25 CFR part 1200

for requests made under the Trust

Reform Act; and

(3) Provide technical assistance to the

tribe to address any problems.

§ 115.817 How does OTFM disburse

money to a tribe?

Upon receipt of all necessary

documentation, OTFM will process the

request for disbursement and send the

tribe the requested amount of trust

funds within one business day.

Whenever possible, trust funds will be

disbursed electronically to an account

in a financial institution designated by

the tribe. If there are circumstances that

preclude electronic payments, OTFM

will mail a check.

Unclaimed Per Capita Funds

§ 115.818 What happens if an Indian adult

does not cash his or her per capita check?

(a) If an Indian adult does not cash his

or her per capita check within twelve

(12) months of the date the check was

issued, the check will be canceled and

the trust funds will be deposited into a

‘‘returned per capita account’’ where the

funds will be maintained until we

receive a request for disbursement by

the Indian adult or for disposition by a

tribe pursuant to § 115.820.

(b) If an Indian adult’s per capita

check is returned to us as undeliverable,

the trust funds will be immediately

deposited into a ‘‘returned per capita

account’’ where the funds will be

maintained until we receive a request

for disbursement by the individual or

for disposition by a tribe pursuant to

§ 115.820.

§ 115.819 What steps will be taken to

locate an individual whose per capita check

is returned as undeliverable or not cashed

within twelve (12) months of issuance?

The OTFM will notify a tribe of the

names of the individuals whose per

capita checks were returned as

undeliverable or not cashed within

twelve (12) months of issuance and will

take reasonable action, including

utilizing electronic search tools, to

locate the individual entitled to receive

the per capita funds.

§ 115.820 May OTFM transfer money in a

returned per capita account to a tribal

account?

Funds in a returned per capita

account will not automatically be

returned to a tribe. However, a tribe may

apply under 25 U.S.C. 164 and Public

Law 87–283, 75 Stat. 584 (1961), to have

the unclaimed per capita funds

transferred to its account for the tribe’s

use after six years have passed from the

date of distribution.

Subpart H—Special Deposit Accounts

§ 115.900 Who receives the interest earned

on trust funds in a special deposit account?

Generally, any interest earned on trust

funds in a special deposit account will

follow the principal (i.e., the tribe or

individual who owns the trust funds in

the special deposit account will receive

the interest earned).

§ 115.901 When will the trust funds in a

special deposit account be credited or paid

out to the owner of the funds?

OTFM will disburse the trust funds

from a special deposit account and

deposit the trust funds in the owner’s

trust account following the BIA

certification of the ownership of the

funds and OTFM’s receipt of such

certification.

§ 115.902 May administrative or land

conveyance fees paid as federal

reimbursements be deposited in a special

deposit account?

No, administrative or land

conveyance fees paid as federal

reimbursements may not be deposited

with OTFM, which includes special

deposit accounts. These fees must be

deposited in the Federal Financial

System.

§ 115.903 May cash bonds (e.g.,

performance bonds, appeal bonds, etc.) be

deposited into a special deposit account?

No, cash bonds may not be deposited

with OTFM, which includes the special

deposit accounts at OTFM. Cash bonds

held by the Secretary are to be deposited

in non-interest bearing accounts until

the term of the bonds expire.

§ 115.904 Where earnest money is paid

prior to Secretarial approval of a

conveyance or contract instrument

involving trust assets, may the BIA deposit

that earnest money into a special deposit

account?

No, any money received prior to

Secretarial approval of conveyance or

contract instrument involving trust

assets must be deposited into a noninterest bearing, non-trust account. After

the Secretary approves the conveyance

or contract instrument involving trust

assets, the money designated by the

conveyance or contract instrument will

be deposited into a trust fund account.

Subpart I—Records

§ 115.1000 Who owns the records

associated with this part?

(a) Records are the property of the

United States if they:

(1) Are made or received by a tribe or

tribal organization in the conduct of a

federal trust function under this part,

including the operation of a trust

program pursuant to 25 U.S.C. 450f et

seq.; and

(2) Evidence the organization,

functions, policies, decisions,

procedures, operations, or other

activities undertaken in the performance

of a federal trust function under this

part.

(b) Records not covered by paragraph

(a) of this section that are made or

received by a tribe or tribal organization

in the conduct of business with the

Department of the Interior under this

part are the property of the tribe.

§ 115.1001 How must records associated

with this part be preserved?

(a) Any organization, including tribes

and tribal organizations, that have

records identified in § 115.1000(a) must

preserve the records in accordance with

approved Departmental records

retention procedures under the Federal

Records Act, 44 U.S.C. Chapters 29, 31

and 33. These records and related

records management practices and

safeguards required under the Federal

Records Act are subject to inspection by

the Secretary and the Archivist of the

United States.

(b) A tribe or tribal organization

should preserve the records identified

in § 115.1000(b) for the period of time

authorized by the Archivist of the

United States for similar Department of

the Interior records in accordance with

44 U.S.C. Chapter 33. If a tribe or tribal

organization does not preserve records

associated with its conduct of business

with the Department of the Interior

under this part, the tribe or tribal

organization may be prevented from

being able to adequately document

essential transactions or furnish

information necessary to protect its legal

and financial rights or those of persons

directly affected by its activities.

PART 162—LEASES AND PERMITS

4. Part 162 is revised to read as

follows:

Subpart A—General Provisions

Sec.

162.100 What are the purposes of this part?

162.101 What key terms do I need to know?

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162.102 What land, or interests in land, are

subject to these regulations?

162.103 What types of land use agreements

are covered by these regulations?

162.104 When is a lease needed to

authorize possession of Indian Land?

162.105 Can tracts with different Indian

landowners be unitized for leasing

purposes?

162.106 What will BIA do if possession is

taken without an approved lease or other

proper authorization?

162.107 What are BIA’s objectives in

granting or approving leases?

162.108 What are BIA’s responsibilities in

administering and enforcing leases?

162.109 What laws, other than these

regulations, will apply to leases granted

or approved under this part?

162.110 Can these regulations be

administered by tribes, on the Secretary’s

or on BIA’s behalf?

162.111 Who owns the records associated

with this part?

162.112 How must records associated with

this part be preserved?

162.113 May decisions under this part be

appealed?

Subpart B—Agricultural Leases

General Provisions

162.200 What types of leases are covered by

this subpart?

162.201 Must agricultural land be managed

in accordance with a tribe’s agricultural

resource management plan?

162.202 How will tribal laws be enforced

on agricultural land?

162.203 When can the regulations in this

subpart be superseded or modified by

tribal laws and leasing policies?

162.204 Must notice of applicable tribal

laws and leasing policies be provided?

162.205 Can individual Indian landowners

exempt their agricultural land from

certain tribal leasing policies?

How To Obtain a Lease

162.206 Can the terms of an agricultural

lease be negotiated with the Indian

landowners?

162.207 When can the Indian landowners

grant an agricultural lease?

162.208 Who can represent the Indian

landowners in negotiating or granting an

agricultural lease?

162.209 When can BIA grant an agricultural

lease on behalf of an Indian landowner?

162.210 When can BIA grant a permit

covering agricultural land?

162.211 What type of valuation or

evaluation methods will be applied in

estimating the fair annual rental of

Indian land?

162.212 When will the BIA advertise Indian

land for agricultural leases?

162.213 What supporting documents must

be provided prior to BIA’s grant or

approval of an agricultural lease?

162.214 How and when will BIA decide

whether to approve an agricultural lease?

162.215 When will an agricultural lease be

effective?

162.216 When will a BIA decision to

approve an agricultural lease be

effective?

162.217 Must an agricultural lease or

permit be recorded?

Lease Requirements

162.218 Is there a standard agricultural

lease form?

162.219 Are there any provisions that must

be included in an agricultural lease?

162.220 Are there any formal requirements

that must be satisfied in the execution of

an agricultural lease?

162.221 How should the land be described

in an agricultural lease?

162.222 How much rent must be paid under

an agricultural lease?

162.223 Must the rent be adjusted under an

agricultural lease?

162.224 When are rent payments due under

an agricultural lease?

162.225 Will untimely rent payments made

under an agricultural lease be subject to

interest charges or late payment

penalties?

162.226 To whom can rent payments be

made under an agricultural lease?

162.227 What form of rent payment can be

accepted under an agricultural lease?

162.228 What other types of payments are

required under an agricultural lease?

162.229 How long can the term of an

agricultural lease run?

162.230 Can an agricultural lease be

amended, assigned, sublet, or

mortgaged?

162.231 How can the land be used under an

agricultural lease?

162.232 Can improvements be made under

an agricultural lease?

162.233 Who will own the improvements

made under an agricultural lease?

162.234 Must a tenant provide a bond

under an agricultural lease?

162.235 What form of bond can be accepted

under an agricultural lease?

162.236 How will a cash bond be

administered?

162.237 What insurance is required under

an agricultural lease?

162.238 What indemnities are required

under an agricultural lease?

162.239 How will payment rights and

obligations relating to agricultural land

be allocated between the Indian

landowners and the tenant?

162.240 Can an agricultural lease provide

for negotiated remedies in the event of a

violation?

Lease Administration

162.241 Will administrative fees be charged

for actions relating to agricultural leases?

162.242 How will BIA decide whether to

approve an amendment to an agricultural

lease?

162.243 How will BIA decide whether to

approve an assignment or sublease under

an agricultural lease?

162.244 How will BIA decide whether to

approve a leasehold mortgage under an

agricultural lease?

162.245 When will a BIA decision to

approve an amendment, assignment,

sublease, or mortgage under an

agricultural lease be effective?

162.246 Must an amendment, assignment,

sublease, or mortgage approved under an

agricultural lease be recorded?

Lease Enforcement

162.247 Will BIA notify a tenant when a

rent payment is due under an

agricultural lease?

162.248 What will BIA do if rent payments

are not made in the time and manner

required by an agricultural lease?

162.249 Will any special fees be assessed

on delinquent rent payments due under

an agricultural lease?

162.250 How will BIA determine whether

the activities of a tenant under an

agricultural lease are in compliance with

the terms of the lease?

162.251 What will BIA do in the event of

a violation under an agricultural lease?

162.252 What will BIA do if a violation of

an agricultural lease is not cured within

the requisite time period?

162.253 Will BIA’s regulations concerning

appeal bonds apply to cancellation

decisions involving agricultural leases?

162.254 When will a cancellation of an

agricultural lease be effective?

162.255 Can BIA take emergency action if

the leased premises are threatened with

immediate and significant harm?

162.256 What will BIA do if a tenant holds

over after the expiration or cancellation

of an agricultural lease?

Subpart C—Residential Leases

[Reserved]

Subpart D—Business Leases

[Reserved]

Subpart E—Special Requirements for

Certain Reservations 162.500 Crow

Reservation.

162.500 Crow Reservation.

162.501 Fort Belknap Reservation.

162.502 Cabazon, Augustine, and TorresMartinez Reservations, California.

162.503 San Xavier and Salt River PimaMaricopa Reservations.

Subpart F—Non-Agricultural Leases

162.600 What types of leases are covered by

this subpart?

162.601 Grants of leases by Secretary.

162.602 Grants of leases by owners or their

representatives.

162.603 Use of land of minors.

162.604 Special requirements and

provisions.

162.605 Negotiation of leases.

162.606 Advertisement.

162.607 Duration of leases.

162.608 Ownership of improvements.

162.609 Unitization for leasing.

162.610 Subleases and assignments.

162.611 Payment of fees and drainage and

irrigation charges.

162.612 Can a lease provide for negotiated

remedies in the event of a violation?

162.613 Will BIA notify a tenant when a

rent payment is due under a lease?

162.614 Will untimely rent payments made

under a lease be subject to interest

charges or late payment penalties?

162.615 What will BIA do if rent payments

are not made in the time and manner

required by a lease?

162.616 Will any special fees be assessed

on delinquent rent payments due under

a lease?

Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations 7111

162.617 How will BIA determine whether

the activities of a tenant under a lease are

in compliance with the terms of the

lease?

162.618 What will BIA do in the event of

a violation under a lease?

162.619 What will BIA do if a violation of

a lease is not cured within the requisite

time period?

162.620 Will BIA’s regulations concerning

appeal bonds apply to cancellation

decisions involving leases?

162.621 When will a cancellation of a lease

be effective?

162.622 Can BIA take emergency action if

the leased premises are threatened with

immediate and significant harm?

162.623 What will BIA do if a tenant holds

over after the expiration or cancellation

of a lease?

Authority: 5 U.S.C. 301, R.S. 463 and 465;

25 U.S.C. 2 and 9. Interpret or apply sec. 3,

26 Stat. 795, sec. 1, 28 Stat. 305, secs. 1, 2,

31 Stat. 229, 246, secs. 7, 12, 34 Stat. 545,

34 Stat. 1015, 1034, 35 Stat. 70, 95, 97, sec.

4, 36 Stat. 856, sec. 1, 39 Stat. 128, 41 Stat.

415, as amended, 751, 1232, sec. 17, 43 Stat.

636, 641, 44 Stat. 658, as amended, 894,

1365, as amended, 47 Stat. 1417, sec. 17, 48

Stat. 984, 988, 49 Stat. 115, 1135, sec. 55, 49

Stat. 781, sec. 3, 49 Stat. 1967, 54 Stat. 745,

1057, 60 Stat. 308, secs. 1, 2, 60 Stat. 962,

sec. 5, 64 Stat. 46, secs. 1, 2, 4, 5, 6, 64 Stat.

470, 69 Stat. 539, 540, 72 Stat. 968, 107 Stat.

2011, 108 Stat. 4572, March 20, 1996, 110

Stat. 4016; 25 U.S.C. 380, 393, 393a, 394, 395,

397, 402, 402a, 403, 403a, 403b, 403c, 409a,

413, 415, 415a, 415b, 415c, 415d, 477, 635,

3701, 3702, 3703, 3712, 3713, 3714, 3715,

3731, 3733; 44 U.S.C. 3101 et seq.

Subpart A—General Provisions

§ 162.100 What are the purposes of this

part?

(a) The purposes of this part are to:

(1) Identify the conditions and

authorities under which certain

interests in Indian land and Government

land may be leased;

(2) Describe the manner in which

various types of leases may be obtained;

(3) Identify terms and conditions that

may be required in various types of

leases;

(4) Describe the policies and

procedures that will be applied in the

administration and enforcement of

various types of leases; and

(5) Identify special requirements that

apply to leases made under special acts

of Congress that apply only to certain

Indian reservations.

(b) This part includes six subparts,

including separate, self-contained

subparts relating to Agricultural Leases

(Subpart B), Residential Leases (Subpart

C, reserved), Business Leases (Subpart

D, reserved), and Non-Agricultural

Leases (Subpart F), respectively.

Subpart E identifies special provisions

applicable only to leases made under

special acts of Congress that apply only

to certain Indian reservations. Leases

covered by subpart E are also subject to

the general provisions in subparts A

through F, respectively, except to the

extent those general provisions are

inconsistent with any of the special

provisions in subpart E or any special

act of Congress under which those

leases are made.

(c) These regulations apply to all

leases in effect when the regulations are

promulgated; however, unless otherwise

agreed by the parties, these regulations

will not affect the validity or terms of

any existing lease.

§ 162.101 What key terms do I need to

know?

For purposes of this part:

Adult means an individual who is 18

years of age or older.

Agricultural land means Indian land

or Government land suited or used for

the production of crops, livestock or

other agricultural products, or Indian

land suited or used for a business that

supports the surrounding agricultural

community.

Agricultural lease means a lease of

agricultural land for farming and/or

grazing purposes.

AIARMA means the American Indian

Agricultural Resources Management Act

of December 3, 1993 (107 Stat. 2011, 25

U.S.C. 3701 et seq.), as amended on

November 2, 1994 (108 Stat. 4572).

Assignment means an agreement

between a tenant and an assignee,

whereby the assignee acquires all of the

tenant’s rights, and assumes all of the

tenant’s obligations, under a lease.

BIA means the Bureau of Indian

Affairs within the Department of the

Interior and any tribe acting on behalf

of BIA under § 162.109 of this part.

Bond means security for the

performance of certain lease obligations,

as furnished by the tenant, or a guaranty

of such performance as furnished by a

third-party surety.

Day means a calendar day.

Emancipated minor means a person

under 18 years of age who is married or

who is determined by a court of

competent jurisdiction to be legally able

to care for himself or herself.

Fair annual rental means the amount

of rental income that a leased tract of

Indian land would most probably

command in an open and competitive

market.

Fee interest means an interest in land

that is owned in unrestricted fee status,

and is thus freely alienable by the fee

owner.

Fractionated tract means a tract of

Indian land owned in common by

Indian landowners and/or fee owners

holding undivided interests therein.

Government land means any tract, or

interest therein, in which the surface

estate is owned by the United States and

administered by BIA, not including

tribal land that has been reserved for

administrative purposes.

Immediate family means a spouse,

brother, sister, lineal ancestor, lineal

descendant, or member of the

household of an individual Indian

landowner.

Indian land means any tract in which

any interest in the surface estate is

owned by a tribe or individual Indian in

trust or restricted status.

Indian landowner means a tribe or

individual Indian who owns an interest

in Indian land in trust or restricted

status.

Individually-owned land means any

tract, or interest therein, in which the

surface estate is owned by an individual

Indian in trust or restricted status.

Interest, when used with respect to

Indian land, means an ownership right

to the surface estate of Indian land that

is unlimited or uncertain in duration,

including a life estate.

Lease means a written agreement

between Indian landowners and a

tenant or lessee, whereby the tenant or

lessee is granted a right to possession of

Indian land, for a specified purpose and

duration. Unless otherwise provided,

the use of this term will also include

permits, as appropriate.

Lessee means tenant, as defined in

this section.

Life estate means an interest in Indian

land that is limited, in duration, to the

life of the life tenant holding the

interest, or the life of some other person.

Majority interest means more than

50% of the trust or restricted interests

in a tract of Indian land.

Minor means an individual who is

less than 18 years of age.

Mortgage means a mortgage, deed of

trust or other instrument that pledges a

tenant’s leasehold interest as security

for a debt or other obligation owed by

the tenant to a lender or other

mortgagee.

NEPA means the National

Environmental Policy Act (42 U.S.C.

§ 4321, et seq.)

Non compos mentis means a person

who has been legally determined by a

court of competent jurisdiction to be of

unsound mind or incapable of managing

his or her own affairs.

Permit means a written agreement

between Indian landowners and the

applicant for the permit, also referred to

as a permittee, whereby the permittee is

granted a revocable privilege to use

Indian land or Government land, for a

specified purpose.

7112 Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations

Remainder means an interest in

Indian land that is created at the same

time as a life estate, for the use and

enjoyment of its owner after the life

estate terminates.

Restricted land or restricted status

means land the title to which is held by

an individual Indian or a tribe and

which can only be alienated or

encumbered by the owner with the

approval of the Secretary because of

limitations contained in the conveyance

instrument pursuant to federal law.

Secretary means the Secretary of the

Interior or an authorized representative.

Sublease means a written agreement

by which the tenant grants to an

individual or entity a right to possession

no greater than that held by the tenant

under the lease.

Surety means one who guarantees the

performance of another.

Tenant means a person or entity who

has acquired a legal right of possession

to Indian land by a lease or permit

under this part.

Trespass means an unauthorized

possession, occupancy or use of Indian

land.

Tribal land means the surface estate

of land or any interest therein held by

the United States in trust for a tribe,

band, community, group or pueblo of

Indians, and land that is held by a tribe,

band, community, group or pueblo of

Indians, subject to federal restrictions

against alienation or encumbrance, and

includes such land reserved for BIA

administrative purposes when it is not

immediately needed for such purposes.

The term also includes lands held by

the United States in trust for an Indian

corporation chartered under section 17

of the Act of June 18, 1934 (48 Stat. 984;

25 U.S.C. § 476).

Tribal laws means the body of law

that governs land and activities under

the jurisdiction of a tribe, including

ordinances and other enactments by the

tribe, tribal court rulings, and tribal

common law.

Trust land means any tract, or interest

therein, that the United States holds in

trust status for the benefit of a tribe or

individual Indian.

Undivided interest means a fractional

share in the surface estate of Indian

land, where the surface estate is owned

in common with other Indian

landowners or fee owners.

Us/We/Our means the Secretary or

BIA and any tribe acting on behalf of the

Secretary or BIA under § 162.110 of this

part.

USPAP means the Uniform Standards

of Professional Appraisal Practice, as

promulgated by the Appraisal Standards

Board of the Appraisal Foundation to

establish requirements and procedures

for professional real property appraisal

practice.

§ 162.102 What land, or interests in land,

are subject to these regulations?

(a) These regulations apply to Indian

land and Government land, including

any tract in which an interest is owned

by an individual Indian or tribe in trust

or restricted status.

(b) Where a life estate and remainder

interest are both owned in trust or

restricted status, the life estate and

remainder interest must both be leased

under these regulations, unless the lease

is for less than one year in duration.

Unless otherwise provided by the

document creating the life estate or by

agreement, rent payable under the lease

must be paid to the life tenant under

part 179 of this chapter.

(c) In approving a lease under these

regulations, we will not lease any fee

interest in Indian land, nor will we

collect rent on behalf of any fee owners.

The leasing of the trust and restricted

interests of the Indian landowners will

not be conditioned on a lease having

been obtained from the owners of any

fee interests. Where all of the trust or

restricted interests in a tract are subject

to a life estate held in fee status, we will

approve a lease of the remainder

interests only if such action is necessary

to preserve the value of the land or

protect the interests of the Indian

landowners.

(d) These regulations do not apply to

tribal land that is leased under a

corporate charter issued by us pursuant

to 25 U.S.C. § 477, or under a special act

of Congress authorizing leases without

our approval under certain conditions,

except to the extent that the authorizing

statutes require us to enforce such leases

on behalf of the Indian landowners.

(e) To the extent any regulations in

this part conflict with the Indian Land

Consolidation Act Amendments of

2000, Public Law 106–462, the

provisions of that Act will govern.

§ 162.103 What types of land use

agreements are covered by these

regulations?

(a) These regulations cover leases that

authorize the possession of Indian land.

These regulations do not apply to:

(1) Mineral leases, prospecting

permits, or mineral development

agreements, as covered by parts 211, 212

and 225 of this chapter and similar parts

specific parts specific to particular

tribes;

(2) Grazing permits, as covered by

part 166 of this chapter and similar

parts specific parts specific to particular

tribes;

(3) Timber contracts, as covered by

part 163 of this chapter;

(4) Management contracts, joint

venture agreements, or other

encumbrances of tribal land, as covered

by 25 U.S.C. § 81, as amended;

(5) Leases of water rights associated

with Indian land, except to the extent

the use of such water rights is

incorporated in a lease of the land itself;

and

(6) Easements or rights-of-way, as

covered by part 169 of this chapter.

(b) Where appropriate, the regulations

in this part that specifically refer to

leases will apply to permits that

authorize the temporary, non-possessory

use of Indian land or Government land,

not including:

(1) Land assignments and similar

instruments authorizing temporary uses

by tribal members, in accordance with

tribal laws or custom; and

(2) Trader’s licenses issued under part

140 of this chapter.

§ 162.104 When is a lease needed to

authorize possession of Indian Land?

(a) An Indian landowner who owns

100% of the trust or restricted interests

in a tract may take possession without

a lease or any other prior authorization

from us.

(b) An Indian landowner of a

fractional interest in a tract must obtain

a lease of the other trust and restricted

interests in the tract, under these

regulations, unless the Indian co-owners

have given the landowner’s permission

to take or continue in possession

without a lease.

(c) A parent or guardian of a minor

child who owns 100% of the trust

interests in the land may take

possession without a lease. We may

require that the parent or guardian

provide evidence of a direct benefit to

the minor child. When the child reaches

the age of majority, a lease must be

obtained under these regulations to

authorize continued possession.

(d) Any other person or legal entity,

including an independent legal entity

owned and operated by a tribe, must

obtain a lease under these regulations

before taking possession.

§ 162.105 Can tracts with different Indian

landowners be unitized for leasing

purposes?

(a) A lease negotiated by Indian

landowners may cover more than one

tract of Indian land, but the minimum

consent requirements for leases granted

by Indian landowners under subparts B

through D of this part will apply to each

tract separately. We may combine

multiple tracts into a unit for leases

negotiated or advertised by us, if we

determine that unitization is in the

Indian landowners’ best interests and

Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations 7113

consistent with the efficient

administration of the land.

(b) Unless otherwise provided in the

lease, the rent or other consideration

derived from a unitized lease will be

distributed based on the size of each

landowner’s interest in proportion to

the acreage within the entire unit.

§ 162.106 What will BIA do if possession is

taken without an approved lease or other

proper authorization?

(a) If a lease is required, and

possession is taken without a lease by

a party other than an Indian landowner

of the tract, we will treat the

unauthorized use as a trespass. Unless

we have reason to believe that the party

in possession is engaged in negotiations

with the Indian landowners to obtain a

lease, we will take action to recover

possession on behalf of the Indian

landowners, and pursue any additional

remedies available under applicable

law.

(b) Where a trespass involves Indian

agricultural land, we will also assess

civil penalties and costs under part 166,

subpart I, of this chapter.

§ 162.107 What are BIA’s objectives in

granting or approving leases?

(a) We will assist Indian landowners

in leasing their land, either through

negotiations or advertisement. In

reviewing a negotiated lease for

approval, we will defer to the

landowners’ determination that the

lease is in their best interest, to the

maximum extent possible. In granting a

lease on the landowners’ behalf, we will

obtain a fair annual rental and attempt

to ensure (through proper notice) that

the use of the land is consistent with the

landowners’ wishes. We will also

recognize the rights of Indian

landowners to use their own land, so

long as their Indian co-owners are in

agreement and the value of the land is

preserved.

(b) We will recognize the governing

authority of the tribe having jurisdiction

over the land to be leased, preparing

and advertising leases in accordance

with applicable tribal laws and policies.

We will promote tribal control and selfdetermination over tribal land and other

land under the tribe’s jurisdiction,

through contracts and self-governance

compacts entered into under the Indian

Self-Determination and Education

Assistance Act, as amended, 25 U.S.C.

§ 450f et seq.

§ 162.108 What are BIA’s responsibilities

in administering and enforcing leases?

(a) We will ensure that tenants meet

their payment obligations to Indian

landowners, through the collection of

rent on behalf of the landowners and the

prompt initiation of appropriate

collection and enforcement actions. We

will also assist landowners in the

enforcement of payment obligations that

run directly to them, and in the exercise

of any negotiated remedies that apply in

addition to specific remedies made

available to us under these or other

regulations.

(b) We will ensure that tenants

comply with the operating requirements

in their leases, through appropriate

inspections and enforcement actions as

needed to protect the interests of the

Indian landowners and respond to

concerns expressed by them. We will

take immediate action to recover

possession from trespassers operating

without a lease, and take other

emergency action as needed to preserve

the value of the land.

§ 162.109 What laws, other than these

regulations, will apply to leases granted or

approved under this part?

(a) Leases granted or approved under

this part will be subject to federal laws

of general applicability and any specific

federal statutory requirements that are

not incorporated in these regulations.

(b) Tribal laws generally apply to land

under the jurisdiction of the tribe

enacting such laws, except to the extent

that those tribal laws are inconsistent

with these regulations or other

applicable federal law. These

regulations may be superseded or

modified by tribal laws, however, so

long as:

(1) The tribal laws are consistent with

the enacting tribe’s governing

documents;

(2) The tribe has notified us of the

superseding or modifying effect of the

tribal laws;

(3) The superseding or modifying of

the regulation would not violate a

federal statute or judicial decision, or

conflict with our general trust

responsibility under federal law; and

(4) The superseding or modifying of

the regulation applies only to tribal

land.

(c) State law may apply to lease

disputes or define the remedies

available to the Indian landowners in

the event of a lease violation by the

tenant, if the lease so provides and the

Indian landowners have expressly

agreed to the application of state law.

§ 162.110 Can these regulations be

administered by tribes, on the Secretary’s

or on BIA’s behalf?

Except insofar as these regulations

provide for the granting, approval, or

enforcement of leases and permits, the

provisions in these regulations that

authorize or require us to take certain

actions will extend to any tribe or tribal

organization that is administering

specific programs or providing specific

services under a contract or selfgovernance compact entered into under

the Indian Self-Determination and

Education Assistance Act (25 U.S.C.

§ 450f et seq.).

§ 162.111 Who owns the records

associated with this part?

(a) Records are the property of the

United States if they:

(1) Are made or received by a tribe or

tribal organization in the conduct of a

federal trust function under 25 U.S.C.

§ 450f et seq., including the operation of

a trust program; and

(2) Evidence the organization,

functions, policies, decisions,

procedures, operations, or other

activities undertaken in the performance

of a federal trust function under this

part.

(b) Records not covered by paragraph

(a) of this section that are made or

received by a tribe or tribal organization

in the conduct of business with the

Department of the Interior under this

part are the property of the tribe.

§ 162.112 How must records associated

with this part be preserved?

(a) Any organization, including tribes

and tribal organizations, that have

records identified in § 162.111(a) must

preserve the records in accordance with

approved Departmental records

retention procedures under the Federal

Records Act, 44 U.S.C. Chapters 29, 31

and 33. These records and related

records management practices and

safeguards required under the Federal

Records Act are subject to inspection by

the Secretary and the Archivist of the

United States.

(b) A tribe or tribal organization

should preserve the records identified

in § 162.111(b) for the period of time

authorized by the Archivist of the

United States for similar Department of

the Interior records in accordance with

44 U.S.C. Chapter 33. If a tribe or tribal

organization does not preserve records

associated with its conduct of business

with the Department of the Interior

under this part, it may prevent the tribe

or tribal organization from being able to

adequately document essential

transactions or furnish information

necessary to protect its legal and

financial rights or those of persons

directly affected by its activities.

§ 162.113 May decisions under this part be

appealed?

Yes. Except where otherwise provided

in this part, appeals from decisions by

the BIA under this part may be taken

pursuant to 25 CFR part 2.

7114 Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations

Subpart B—Agricultural Leases

General Provisions

§ 162.200 What types of leases are

covered by this subpart?

The regulations in this subpart apply

to agricultural leases, as defined in this

part. The regulations in this subpart

may also apply to business leases on

agricultural land, where appropriate.

§ 162.201 Must agricultural land be

managed in accordance with a tribe’s

agricultural resource management plan?

(a) Agricultural land under the

jurisdiction of a tribe must be managed

in accordance with the goals and

objectives in any agricultural resource

management plan developed by the

tribe, or by us in close consultation with

the tribe, under AIARMA.

(b) A ten-year agricultural resource

management and monitoring plan must

be developed through public meetings

and completed within three years of the

initiation of the planning activity. Such

a plan must be developed through

public meetings, and be based on the

public meeting records and existing

survey documents, reports, and other

research from federal agencies, tribal

community colleges, and land grant

universities. When completed, the plan

must:

(1) Determine available agricultural

resources;

(2) Identify specific tribal agricultural

resource goals and objectives;

(3) Establish management objectives

for the resources;

(4) Define critical values of the Indian

tribe and its members and identify

holistic management objectives; and

(5) Identify actions to be taken to

reach established objectives.

(c) Where the regulations in this

subpart are inconsistent with a tribe’s

agricultural resource management plan,

we may waive the regulations under

part 1 of this title, so long as the waiver

does not violate a federal statute or

judicial decision or conflict with our

general trust responsibility under

federal law.

§ 162.202 How will tribal laws be enforced

on agricultural land?

(a) Unless prohibited by federal law,

we will recognize and comply with

tribal laws regulating activities on

agricultural land, including tribal laws

relating to land use, environmental

protection, and historic or cultural

preservation.

(b) While the tribe is primarily

responsible for enforcing tribal laws

pertaining to agricultural land, we will:

(1) Assist in the enforcement of tribal

laws;

(2) Provide notice of tribal laws to

persons or entities undertaking

activities on agricultural land, under

§ 162.204(c) of this subpart; and

(3) Require appropriate federal

officials to appear in tribal forums when

requested by the tribe, so long as such

an appearance would not:

(i) Be inconsistent with the

restrictions on employee testimony set

forth at 43 CFR Part 2, Subpart E;

(ii) Constitute a waiver of the

sovereign immunity of the United

States; or

(iii) Authorize or result in a review of

our actions by a tribal court.

(c) Where the regulations in this

subpart are inconsistent with a tribal

law, but such regulations cannot be

superseded or modified by the tribal law

under § 162.109 of this part, we may

waive the regulations under part 1 of

this chapter, so long as the waiver does

not violate a federal statute or judicial

decision or conflict with our general

trust responsibility under federal law.

§ 162.203 When can the regulations in this

subpart be superseded or modified by tribal

laws and leasing policies?

(a) The regulations in this subpart

may be superseded or modified by tribal

laws, under the circumstances described

in § 162.109(b) of this part.

(b) When specifically authorized by

an appropriate tribal resolution

establishing a general policy for the

leasing of tribal and individually-owned

agricultural land, we will:

(1) Waive the general prohibition

against tenant preferences in leases

advertised for bid under § 162.212 of

this subpart, by allowing prospective

Indian tenants to match the highest

responsible bid (unless the tribal leasing

policy specifies some other manner in

which the preference must be afforded);

(2) Waive the requirement that a

tenant post a bond under § 162.234 of

this subpart;

(3) Modify the requirement that a

tenant post a bond in a form described

in § 162.235 of this subpart;

(4) Approve leases of tribal land at

rates established by the tribe, as

provided in § 162.222(b) of this subpart.

(c) When specifically authorized by

an appropriate tribal resolution

establishing a general policy for the

leasing of ‘‘highly fractionated

undivided heirship lands’’ (as defined

in the tribal leasing policy), we may

waive or modify the three-month notice

requirement in § 162.209(b) of this

subpart, so long as:

(1) The tribal law or leasing policy

adopts an alternative plan for providing

notice to Indian landowners, before an

agricultural lease is granted by us on

their behalf; and

(2) A waiver or modification of the

three-month notice requirement is

needed to prevent waste, reduce idle

land acreage, and ensure lease income

to the Indian landowners.

(d) Tribal leasing policies of the type

described in paragraphs (b) through (c)

of this section will not apply to

individually-owned land that has been

made exempt from such laws or policies

under § 162.205 of this subpart.

§ 162.204 Must notice of applicable tribal

laws and leasing policies be provided?

(a) A tribe must provide us with an

official copy of any tribal law or leasing

policy that supersedes or modifies these

regulations under §§ 162.109 or 162.203

of this part. If the tribe has not already

done so, we will provide notice of such

a tribal law or leasing policy to affected

Indian landowners and persons or

entities undertaking activities on

agricultural land. Such notice will be

provided in the manner described in

paragraphs (b) through (c) of this

section.

(b) We will provide notice to Indian

landowners, as to the superseding or

modifying effect of any tribal leasing

policy and their right to exempt their

land from such a policy. Such notice

will be provided by:

(1) Written notice included in a notice

of our intent to lease the land, issued

under § 162.209(b) of this subpart; or

(2) Public notice posted at the tribal

community building or the United

States Post Office, or published in the

local newspaper that serves the area in

which the Indian owners’ land is

located, at the time the tribal leasing

policy is adopted.

(c) We will provide notice to persons

or entities undertaking activities on

agricultural land, as to the general

applicability of tribal laws and the

superseding or modifying effect of

particular tribal laws and leasing

policies. Such notice will be provided

by:

(1) Written notice included in

advertisements for lease, issued under

§ 162.212 of this subpart; or

(2) Public notice posted at the tribal

community building or the United

States Post Office, or published in a

local newspaper of general circulation,

at the time the tribal law is enacted or

the leasing policy adopted.

§ 162.205 Can individual Indian

landowners exempt their agricultural land

from certain tribal leasing policies?

(a) Individual Indian landowners may

exempt their agricultural land from the

application of a tribal leasing policy of

a type described in § 162.203(b) through

(c) of this subpart, if the Indian owners

Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations 7115

of at least 50% of the trust or restricted

interests in the land submit a written

objection to us before a lease is granted

or approved.

(b) Upon our receipt of a written

objection from the Indian landowners

that satisfies the requirements of

paragraph (a) of this section, we will

notify the tribe that the owners’ land has

been exempted from a specific tribal

leasing policy. If the exempted land is

part of a unitized lease tract, such land

will be removed from the unit and

leased separately, if appropriate.

(c) The procedures described in

paragraphs (a) and (b) of this section

will also apply to withdrawing an

approved exemption.

How to Obtain a Lease

§ 162.206 Can the terms of an agricultural

lease be negotiated with the Indian

landowners?

An agricultural lease may be obtained

through negotiation. We will assist

prospective tenants in contacting the

Indian landowners or their

representatives for the purpose of

negotiating a lease, and we will assist

the landowners in those negotiations

upon request.

§ 162.207 When can the Indian landowners

grant an agricultural lease?

(a) Tribes grant leases of triballyowned agricultural land, including any

tribally-owned undivided interest(s) in a

fractionated tract, subject to our

approval. Where tribal land is subject to

a land assignment made to a tribal

member or some other individual under

tribal law or custom, the individual and

the tribe must both grant the lease,

subject to our approval.

(b) Adult Indian owners, or

emancipated minors, may grant

agricultural leases of their land,

including undivided interests in

fractionated tracts, subject to our

approval.

(c) An agricultural lease of a

fractionated tract may be granted by the

owners of a majority interest in the tract,

subject to our approval. Although prior

notice to non-consenting individual

Indian landowners is generally not

needed prior to our approval of such a

lease, a right of first refusal must be

offered to any non-consenting Indian

landowner who is using the entire lease

tract at the time the lease is entered into

by the owners of a majority interest.

Where the owners of a majority interest

grant such a lease on behalf of all of the

Indian owners of a fractionated tract, the

non-consenting Indian landowners must

receive a fair annual rental.

(d) As part of the negotiation of a

lease, Indian landowners may advertise

their land to identify potential tenants

with whom to negotiate.

§ 162.208 Who can represent the Indian

landowners in negotiating or granting an

agricultural lease?

The following individuals or entities

may represent an individual Indian

landowner:

(a) An adult with custody acting on

behalf of his or her minor children;

(b) A guardian, conservator, or other

fiduciary appointed by a court of

competent jurisdiction to act on behalf

of an individual Indian landowner;

(c) An adult or legal entity who has

been given a written power of attorney

that:

(1) Meets all of the formal

requirements of any applicable tribal or

state law;

(2) Identifies the attorney-in-fact and

the land to be leased; and

(3) Describes the scope of the power

granted and any limits thereon.

§ 162.209 When can BIA grant an

agricultural lease on behalf of an Indian

landowner?

(a) We may grant an agricultural lease

on behalf of:

(1) Individuals who are found to be

non compos mentis by a court of

competent jurisdiction;

(2) Orphaned minors;

(3) The undetermined heirs and

devisees of deceased Indian owners;

(4) Individuals who have given us a

written power of attorney to lease their

land; and

(5) Individuals whose whereabouts

are unknown to us, after reasonable

attempts are made to locate such

individuals; and

(6) The individual Indian landowners

of fractionated Indian land, when

necessary to protect the interests of the

individual Indian landowners.

(b) We may grant an agricultural lease

on behalf of all of the individual Indian

owners of a fractionated tract, where:

(1) We have provided the Indian

landowners with written notice of our

intent to grant a lease on their behalf,

but the Indian landowners are unable to

agree upon a lease during a three-month

negotiation period immediately

following such notice, or any other

notice period established by a tribe

under § 162.203(c) of this subpart; and

(2) The land is not being used by an

Indian landowner under § 162.104(b) of

this part.

§ 162.210 When can BIA grant a permit

covering agricultural land?

(a) We may grant a permit covering

agricultural land in the same manner as

we would grant an agricultural lease

under § 162.209 of this part. We may

also grant a permit on behalf of

individual Indian landowners, without

prior notice, if it is impractical to

provide notice to the owners and no

substantial injury to the land will occur.

(b) We may grant a permit covering

agricultural land, but not an agricultural

lease, on government land.

(c) We will not grant a permit on

tribal agricultural land, but a tribe may

grant a permit, subject to our approval,

in the same manner as it would grant a

lease under § 162.207(a) of this subpart.

§ 162.211 What type of valuation or

evaluation methods will be applied in

estimating the fair annual rental of Indian

land?

(a) To support the Indian landowners

in their negotiations, and to assist in our

consideration of whether an agricultural

lease is in the Indian landowners’ best

interest, we must determine the fair

annual rental of the land prior to our

grant or approval of the lease, unless the

land may be leased at less than a fair

annual rental under § 162.222(b)

through (c) of this subpart.

(b) A fair annual rental may be

determined by competitive bidding,

appraisal, or any other appropriate

valuation method. Where an appraisal

or other valuation is needed to

determine the fair annual rental, the

appraisal or valuation must be prepared

in accordance with USPAP.

§ 162.212 When will the BIA advertise

Indian land for agricultural leases?

(a) We will generally advertise Indian

land for agricultural leasing:

(1) At the request of the Indian

landowners; or

(2) Before we grant a lease under

§ 162.209(b) of this subpart.

(b) Advertisements will provide

prospective tenants with notice of any

superseding tribal laws and leasing

policies that have been made applicable

to the land under §§ 162.109 and

162.203 of this part, along with certain

standard terms and conditions to be

included in the lease. Advertisements

will prohibit tenant preferences, and

bidders at lease sales will not be

afforded any preference, unless a

preference in favor of individual Indians

is required by a superseding tribal law

or leasing policy.

(c) Advertisements will require sealed

bids, and they may also provide for

further competitive bidding among the

prospective tenants at the conclusion of

the bid opening. Competitive bidding

should be supported, at a minimum, by

a market study or rent survey that is

consistent with USPAP.

7116 Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations

§ 162.213 What supporting documents

must be provided prior to BIA’s grant or

approval of an agricultural lease?

(a) If the tenant is a corporation,

partnership or other legal entity, it must

provide organizational and financial

documents, as needed to show that the

lease will be enforceable against the

tenant and the tenant will be able to

perform all of its lease obligations.

(b) Where a bond is required under

§ 162.234 of this subpart, the bond must

be furnished before we grant or approve

the lease.

(c) The tenant must provide

environmental and archaeological

reports, surveys, and site assessments,

as needed to document compliance with

NEPA and other applicable federal and

tribal land use requirements.

§ 162.214 How and when will BIA decide

whether to approve an agricultural lease?

(a) Before we approve a lease, we

must determine in writing that the lease

is in the best interest of the Indian

landowners. In making that

determination, we will:

(1) Review the lease and supporting

documents;

(2) Identify potential environmental

impacts and ensure compliance with all

applicable environmental laws, land use

laws, and ordinances (including

preparation of the appropriate review

documents under NEPA);

(3) Assure ourselves that adequate

consideration has been given, as

appropriate, to:

(i) The relationship between the use

of the leased premises and the use of

neighboring lands;

(ii) The height, quality, and safety of

any structures or other facilities to be

constructed on the leased premises;

(iii) The availability of police and fire

protection, utilities, and other essential

community services;

(iv) The availability of judicial forums

for all criminal and civil matters arising

on the leased premises; and

(v) The effect on the environment of

the proposed land use.

(4) Require any lease modifications or

mitigation measures that are needed to

satisfy any requirements of this subpart,

or any other federal or tribal land use

requirements.

(b) Where an agricultural lease is in a

form that has previously been accepted

or approved by us, and all of the

documents needed to support the

findings required by paragraph (a) of

this section have been received, we will

decide whether to approve the lease

within 30 days of the date of our receipt

of the lease and supporting documents.

If we decide to approve or disapprove

a lease, we will notify the parties

immediately and advise them of their

right to appeal the decision under part

2 of this chapter. Copies of agricultural

leases that have been approved will be

provided to the tenant, and made

available to the Indian landowners upon

request.

§ 162.215 When will an agricultural lease

be effective?

Unless otherwise provided in the

lease, an agricultural lease will be

effective on the date on which the lease

is approved by us. An agricultural lease

may be made effective on some past or

future date, by agreement, but such a

lease may not be approved more than

one year prior to the date on which the

lease term is to commence.

§ 162.216 When will a BIA decision to

approve an agricultural lease be effective?

Our decision to approve an

agricultural lease will be effective

immediately, notwithstanding any

appeal that may be filed under part 2 of

this chapter.

§ 162.217 Must an agricultural lease or

permit be recorded?

(a) An agricultural lease or permit

must be recorded in our Land Titles and

Records Office with jurisdiction over

the land. We will record the lease or

permit immediately following our

approval under this subpart.

(b) Agricultural leases of tribal land

that do not require our approval, under

§ 162.102 of this part, must be recorded

by the tribe in our Land Titles and

Records Office with jurisdiction over

the land.

Lease Requirements

§ 162.218 Is there a standard agricultural

lease form?

Based on the need for flexibility in

advertising, negotiating and drafting of

appropriate lease terms and conditions,

there is no standard agricultural lease

form that must be used. We will assist

the Indian landowners in drafting lease

provisions that conform to the

requirements of this part.

§ 162.219 Are there any provisions that

must be included in an agricultural lease?

In addition to the other requirements

of this part, all agricultural leases must

provide that:

(a) The obligations of the tenant and

its sureties to the Indian landowners

will also be enforceable by the United

States, so long as the land remains in

trust or restricted status;

(b) Nothing contained in this lease

shall operate to delay or prevent a

termination of federal trust

responsibilities with respect to the land

by the issuance of a fee patent or

otherwise during the term of the lease;

however, such termination shall not

serve to abrogate the lease. The owners

of the land and the lessee and his surety

or sureties shall be notified of any such

change in the status of the land;

(c) There must not be any unlawful

conduct, creation of a nuisance, illegal

activity, or negligent use or waste of the

leased premises; and

(d) The tenant must comply with all

applicable laws, ordinances, rules,

regulations, and other legal

requirements, including tribal laws and

leasing policies.

§ 162.220 Are there any formal

requirements that must be satisfied in the

execution of an agricultural lease?

(a) An agricultural lease must identify

the Indian landowners and their

respective interests in the leased

premises, and the lease must be granted

by or on behalf of each of the Indian

landowners. One who executes a lease

in a representative capacity under

§ 162.208 of this subpart must identify

the owner being represented and the

authority under which such action is

being taken.

(b) An agricultural lease must be

executed by individuals having the

necessary capacity and authority to bind

the tenant under applicable law.

(c) An agricultural lease must include

a citation of the provisions in this

subpart that authorize our approval,

along with a citation of the formal

documents by which such authority has

been delegated to the official taking

such action.

§ 162.221 How should the land be

described in an agricultural lease?

An agricultural lease should describe

the leased premises by reference to a

public or private survey, if possible. If

the land cannot be so described, the

lease must include a legal description or

other description that is sufficient to

identify the leased premises, subject to

our approval. Where there are

undivided interests owned in fee status,

the aggregate portion of trust and

restricted interests should be identified

in the description of the leased

premises.

§ 162.222 How much rent must be paid

under an agricultural lease?

(a) An agricultural lease must provide

for the payment of a fair annual rental

at the beginning of the lease term,

unless a lesser amount is permitted

under paragraphs (b) through (d) of this

section. The tenant’s rent payments may

be:

(1) In fixed amounts; or

(2) Based on a share of the agricultural

products generated by the lease, or a

Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations 7117

percentage of the income to be derived

from the sale of such agricultural

products.

(b) We will approve an agricultural

lease of tribal land at a nominal rent, or

at less than a fair annual rental, if such

a rent is negotiated or established by the

tribe.

(c) We will approve an agricultural

lease of individually-owned land at a

nominal rent or at less than a fair annual

rental, if:

(1) The tenant is a member of the

Indian landowner’s immediate family,

or a co-owner in the lease tract; or

(2) The tenant is a cooperative or

other legal entity in which the Indian

landowners directly participate in the

revenues or profits generated by the

lease.

(d) We will grant or approve a lease

at less than a fair annual rental, as

previously determined by an appraisal

or some other appropriate valuation

method, if the land is subsequently

advertised and the tenant is the highest

responsible bidder.

§ 162.223 Must the rent be adjusted under

an agricultural lease?

(a) Except as provided in paragraph

(c) of this section, an agricultural lease

must provide for one or more rental

adjustments if the lease term runs more

than five years, unless the lease

provides for the payment of:

(1) Less than a fair annual rental, as

permitted under § 162.222(b) through (c)

of this part; or

(2) A rental based primarily on a share

of the agricultural products generated by

the lease, or a percentage of the income

derived from the sale of agricultural

products.

(b) If rental adjustments are required,

the lease must specify:

(1) How adjustments are made;

(2) Who makes the adjustments;

(3) When the adjustments are

effective; and

(4) How disputes about the

adjustments are resolved.

(c) An agricultural lease of tribal land

may run for a term of more than five

years, without providing for a rental

adjustment, if the tribe establishes such

a policy under § 162.203(b)(4) and

negotiates such a lease.

§ 162.224 When are rent payments due

under an agricultural lease?

An agricultural lease must specify the

dates on which all rent payments are

due. Unless otherwise provided in the

lease, rent payments may not be made

or accepted more than one year in

advance of the due date. Rent payments

are due at the time specified in the

lease, regardless of whether the tenant

receives an advance billing or other

notice that a payment is due.

§ 162.225 Will untimely rent payments

made under an agricultural lease be subject

to interest charges or late payment

penalties?

An agricultural lease must specify the

rate at which interest will accrue on any

rent payment not made by the due date

or any other date specified in the lease.

A lease may also identify additional late

payment penalties that will apply if a

rent payment is not made by a specified

date. Unless otherwise provided in the

lease, such interest charges and late

payment penalties will apply in the

absence of any specific notice to the

tenant from us or the Indian

landowners, and the failure to pay such

amounts will be treated as a lease

violation under § 162.251 of this

subpart.

§ 162.226 To whom can rent payments be

made under an agricultural lease?

(a) An agricultural lease must specify

whether rent payments will be made

directly to the Indian landowners or to

us on behalf of the Indian landowners.

If the lease provides for payment to be

made directly to the Indian landowners,

the lease must also require that the

tenant retain specific documentation

evidencing proof of payment, such as

canceled checks, cash receipt vouchers,

or copies of money orders or cashier’s

checks, consistent with the provisions

of §§ 162.112 and 162.113 of this part.

(b) Rent payments made directly to

the Indian landowners must be made to

the parties specified in the lease, unless

the tenant receives notice of a change of

ownership. Unless otherwise provided

in the lease, rent payments may not be

made payable directly to anyone other

than the Indian landowners.

(c) A lease that provides for rent

payments to be made directly to the

Indian landowners must also provide

for such payments to be suspended and

the rent thereafter paid to us, rather than

directly to the Indian landowners, if:

(1) An Indian landowner dies;

(2) An Indian landowner requests that

payment be made to us;

(3) An Indian landowner is found by

us to be in need of assistance in

managing his/her financial affairs; or

(4) We determine, in our discretion

and after consultation with the Indian

landowner(s), that direct payment

should be discontinued.

§ 162.227 What form of rent payment can

be accepted under an agricultural lease?

(a) When rent payments are made

directly to the Indian landowners, the

form of payment must be acceptable to

the Indian landowners.

(b) Payments made to us may be

delivered in person or by mail. We will

not accept cash, foreign currency, or

third-party checks. We will accept:

(1) Personal or business checks drawn

on the account of the tenant;

(2) Money orders;

(3) Cashier’s checks;

(4) Certified checks; or

(5) Electronic funds transfer

payments.

§ 162.228 What other types of payments

are required under an agricultural lease?

(a) The tenant may be required to pay

additional fees, taxes, and/or

assessments associated with the use of

the land, as determined by the tribe

having jurisdiction over the land. The

tenant must pay these amounts to the

appropriate tribal official.

(b) Except as otherwise provided in

part 171 of this chapter, if the leased

premises are within an Indian irrigation

project or drainage district, the tenant

must pay all operation and maintenance

charges that accrue during the lease

term. The tenant must pay these

amounts to the appropriate official in

charge of the irrigation project or

drainage district. Failure to make such

payments will constitute a violation of

the lease under § 162.251.

§ 162.229 How long can the term of an

agricultural lease run?

(a) An agricultural lease must provide

for a definite lease term, specifying the

commencement date. The

commencement date of the lease may

not be more than one year after the date

on which the lease is approved.

(b) The lease term must be reasonable,

given the purpose of the lease and the

level of investment required. Unless

otherwise provided by statute, the

maximum term may not exceed ten

years, unless a substantial investment in

the improvement of the land is required.

If such a substantial investment is

required, the maximum term may be up

to 25 years.

(c) Where all of the trust or restricted

interests in a tract are owned by a

deceased Indian whose heirs and

devisees have not yet been determined,

the maximum term may not exceed two

years.

(d) An agricultural lease may not

provide the tenant with an option to

renew, and such a lease may not be

renewed or extended by holdover.

§ 162.230 Can an agricultural lease be

amended, assigned, sublet, or mortgaged?

(a) An agricultural lease may

authorize amendments, assignments,

subleases, or mortgages of the leasehold

interest, but only with the written

consent of the parties to the lease in the

7118 Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations

same manner the original lease was

approved, and our approval. An attempt

by the tenant to mortgage the leasehold

interest or authorize possession by

another party, without the necessary

consent and approval, will be treated as

a lease violation under § 162.251 of this

subpart.

(b) An agricultural lease may

authorize us, one or more of the Indian

landowners, or a designated

representative of the Indian landowners,

to consent to an amendment,

assignment, sublease, mortgage, or other

type of agreement, on the landowners’

behalf. A designated landowner or

representative may not negotiate or

consent to an amendment, assignment,

or sublease that would:

(1) Reduce the rentals payable to the

other Indian landowners; or

(2) Terminate or modify the term of

the lease.

(c) Where the Indian landowners have

not designated a representative for the

purpose of consenting to an

amendment, assignment, sublease,

mortgage, or other type of agreement,

such consent may be granted by or on

behalf of the landowners in the same

manner as a new lease, under

§§ 162.207 through 162.209 of this

subpart.

§ 162.231 How can the land be used under

an agricultural lease?

(a) An agricultural lease must describe

the authorized uses of the leased

premises. Any use of the leased

premises for an unauthorized purpose,

or a failure by the tenant to maintain

continuous operations throughout the

lease term, will be treated as a lease

violation under § 162.251 of this

subpart.

(b) An agricultural lease must require

that farming and grazing operations be

conducted in accordance with

recognized principles of sustained yield

management, integrated resource

management planning, sound

conservation practices, and other

community goals as expressed in

applicable tribal laws, leasing policies,

or agricultural resource management

plans. Appropriate stipulations or

conservation plans must be developed

and incorporated in all agricultural

leases.

§ 162.232 Can improvements be made

under an agricultural lease?

An agricultural lease must generally

describe the type and location of any

improvements to be constructed by the

lessee. Unless otherwise provided in the

lease, any specific plans for the

construction of those improvements will

not require the consent of the Indian

owners or our approval.

§ 162.233 Who will own the improvements

made under an agricultural lease?

(a) An agricultural lease may specify

who will own any improvements

constructed by the tenant, during the

lease term. The lease must indicate

whether any improvements constructed

by the tenant will remain on the leased

premises upon the expiration or

termination of the lease, providing for

the improvements to either:

(1) Remain on the leased premises, in

a condition satisfactory to the Indian

landowners and us; or

(2) Be removed within a time period

specified in the lease, at the tenant’s

expense, with the leased premises to be

restored as close as possible to their

condition prior to construction of such

improvements.

(b) If the lease allows the tenant to

remove the improvements, it must also

provide the Indian landowners with an

option to waive the removal

requirement and take possession of the

improvements if they are not removed

within the specified time period. If the

Indian landowners choose not to

exercise this option, we will take

appropriate enforcement action to

ensure removal at the tenant’s expense.

§ 162.234 Must a tenant provide a bond

under an agricultural lease?

Unless otherwise provided by a tribe

under § 162.203 of this subpart, or

waived by us at the request of the

owners of a majority interest in an

agricultural lease tract, the tenant must

provide a bond to secure:

(a) The payment of one year’s rental;

(b) The construction of any required

improvements;

(c) The performance of any additional

lease obligations, including the payment

of operation and maintenance charges

under § 162.228(b) of this subpart; and

(d) The restoration and reclamation of

the leased premises, to their condition

at the commencement of the lease term

or some other specified condition.

§ 162.235 What form of bond can be

accepted under an agricultural lease?

(a) Except as provided in paragraph

(b) of this section, a bond must be

deposited with us and made payable

only to us, and such a bond may not be

modified or withdrawn without our

approval. We will only accept a bond in

one of the following forms:

(1) Cash;

(2) Negotiable Treasury securities

that:

(i) Have a market value at least equal

to the bond amount; and

(ii) Are accompanied by a statement

granting full authority to us to sell such

securities in case of a violation of the

terms of the lease.

(3) Certificates of deposit that indicate

on their face that our approval is

required prior to redemption by any

party;

(4) Irrevocable letters of credit issued

by federally-insured financial

institutions authorized to do business in

the United States. A letter of credit

must:

(i) Contain a clause that grants us the

authority to demand immediate

payment if the tenant violates the lease

or fails to replace the letter of credit at

least 30 days prior to its expiration date;

(ii) Be payable to us;

(iii) Be irrevocable during its term and

have an initial expiration date of not

less than one year following the date of

issuance; and

(iv) Be automatically renewable for a

period of not less than one year, unless

the issuing financial institution

provides us with written notice that it

will not be renewed, at least 90 calendar

days before the letter of credit’s

expiration date.

(5) A surety bond issued by a

company approved by the U.S.

Department of the Treasury; or

(6) Any other form of highly liquid,

non-volatile security that is easily

convertible to cash and for which our

approval is required prior to redemption

by any party.

(b) A tribe may accept and hold any

form of bond described in paragraph (a)

of this section, to secure performance

under an agricultural lease of tribal

land.

§ 162.236 How will a cash bond be

administered?

(a) If a cash bond is submitted, we

will retain the funds in an account

established in the name of the tenant.

(b) We will not pay interest on a cash

performance bond.

(c) If the bond is not forfeited under

§ 162.252(a) of this subpart, we will

refund the bond to the tenant upon the

expiration or termination of the lease.

§ 162.237 What insurance is required

under an agricultural lease?

When necessary to protect the

interests of the Indian landowners, an

agricultural lease must require that a

tenant provide insurance. Such

insurance may include property, crop,

liability and/or casualty insurance. If

insurance is required, it must identify

both the Indian landowners and the

United States as insured parties, and be

sufficient to protect all insurable

improvements on the leased premises.

Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations 7119

§ 162.238 What indemnities are required

under an agricultural lease?

(a) An agricultural lease must require

that the tenant indemnify and hold the

United States and the Indian

landowners harmless from any loss,

liability, or damages resulting from the

tenant’s use or occupation of the leased

premises, unless:

(1) The tenant would be prohibited by

law from making such an agreement; or

(2) The interests of the Indian

landowners are adequately protected by

insurance.

(b) Unless the tenant would be

prohibited by law from making such an

agreement, an agricultural lease must

specifically require that the tenant

indemnify the United States and the

Indian landowners against all liabilities

or costs relating to the use, handling,

treatment, removal, storage,

transportation, or disposal of hazardous

materials, or the release or discharge of

any hazardous materials from the leased

premises that occurs during the lease

term, regardless of fault.

§ 162.239 How will payment rights and

obligations relating to agricultural land be

allocated between the Indian landowners

and the tenant?

(a) Unless otherwise provided in an

agricultural lease, the Indian

landowners will be entitled to receive

any settlement funds or other payments

arising from certain actions that

diminish the value of the land or the

improvements thereon. Such payments

may include (but are not limited to) :

(1) Insurance proceeds;

(2) Trespass damages; and

(3) Condemnation awards.

(b) An agricultural lease may provide

for the tenant to assume certain costshare or other payment obligations that

have attached to the land through past

farming and grazing operations, so long

as those obligations are specified in the

lease and considered in any

determination of fair annual rental made

under this subpart.

§ 162.240 Can an agricultural lease

provide for negotiated remedies in the

event of a violation?

(a) A lease of tribal agricultural land

may provide the tribe with certain

negotiated remedies in the event of a

lease violation, including the power to

terminate the lease. An agricultural

lease of individually-owned land may

provide the individual Indian

landowners with similar remedies, so

long as the lease also specifies the

manner in which those remedies may be

exercised by or on behalf of the

landowners.

(b) The negotiated remedies described

in paragraph (a) of this section will

apply in addition to the cancellation

remedy available to us under

§ 162.252(c) of this subpart. If the lease

specifically authorizes us to exercise

any negotiated remedies on behalf of the

Indian landowners, the exercise of such

remedies may substitute for

cancellation.

(c) An agricultural lease may provide

for lease disputes to be resolved in tribal

court or any other court of competent

jurisdiction, or through arbitration or

some other alternative dispute

resolution method. We may not be

bound by decisions made in such

forums, but we will defer to ongoing

proceedings, as appropriate, in deciding

whether to exercise any of the remedies

available to us under § 162.252 of this

subpart.

Lease Administration

§ 162.241 Will administrative fees be

charged for actions relating to agricultural

leases?

(a) We will charge an administrative

fee each time we approve an agricultural

lease, amendment, assignment,

sublease, mortgage, or related

document. These fees will be paid by

the tenant, assignee, or subtenant, to

cover our costs in preparing or

processing the documents and

administering the lease.

(b) Except as provided in paragraph

(c) of this section, we will charge

administrative fees based on the rent

payable under the lease. The fee will be

3% of the annual rent payable,

including any percentage-based rent

that can be reasonably estimated.

(c) The minimum administrative fee is

$10.00 and the maximum administrative

fee is $500.00, and any administrative

fees that have been paid will be nonrefundable. However, we may waive all

or part of these administrative fees, in

our discretion.

(d) If all or part of the expenses of the

work are paid from tribal funds, the

tribe may establish an additional or

alternate schedule of fees.

§ 162.242 How will BIA decide whether to

approve an amendment to an agricultural

lease?

We will approve an agricultural lease

amendment if:

(a) The required consents have been

obtained from the parties to the lease

under § 162.230 and any sureties; and

(b) We find the amendment to be in

the best interest of the Indian

landowners, under the standards set

forth in § 162.213 of this subpart.

§ 162.243 How will BIA decide whether to

approve an assignment or sublease under

an agricultural lease?

(a) We will approve an assignment or

sublease under an agricultural lease if:

(1) The required consents have been

obtained from the parties to the lease

under § 162.230 and the tenant’s

sureties;

(2) The tenant is not in violation of

the lease;

(3) The assignee agrees to be bound

by, or the subtenant agrees to be

subordinated to, the terms of the lease;

and

(4) We find no compelling reason to

withhold our approval in order to

protect the best interests of the Indian

owners.

(b) In making the finding required by

paragraph (a)(4) of this section, we will

consider whether:

(1) The Indian landowners should

receive any income derived by the

tenant from the assignment or sublease,

under the terms of the lease;

(2) The proposed use by the assignee

or subtenant will require an amendment

of the lease;

(3) The value of any part of the leased

premises not covered by the assignment

or sublease would be adversely affected;

and

(4) The assignee or subtenant has

bonded its performance and provided

supporting documents that demonstrate

that the lease or sublease will be

enforceable against the assignee or

subtenant, and that the assignee or

subtenant will be able to perform its

obligations under the lease or sublease.

§ 162.244 How will BIA decide whether to

approve a leasehold mortgage under an

agricultural lease?

(a) We will approve a leasehold

mortgage under an agricultural lease if:

(1) The required consents have been

obtained from the parties to the lease

under § 162.230 and the tenant’s

sureties;

(2) The mortgage covers only the

tenant’s interest in the leased premises,

and no unrelated collateral;

(3) The loan being secured by the

mortgage will be used only in

connection with the development or use

of the leased premises, and the mortgage

does not secure any unrelated debts

owed by the tenant to the mortgagee;

and

(4) We find no compelling reason to

withhold our approval in order to

protect the best interests of the Indian

landowners.

(b) In making the finding required by

paragraph (a)(4) of this section, we will

consider whether:

7120 Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations

(1) The tenant’s ability to comply with

the lease would be adversely affected by

any new loan obligations;

(2) Any lease provisions would be

modified by the mortgage;

(3) The remedies available to us or to

the Indian landowners would be limited

(beyond any additional notice and cure

rights to be afforded to the mortgagee),

in the event of a lease violation; and

(4) Any rights of the Indian

landowners would be subordinated or

adversely affected in the event of a loan

default by the tenant.

§ 162.245 When will a BIA decision to

approve an amendment, assignment,

sublease, or mortgage under an agricultural

lease be effective?

Our decision to approve an

amendment, assignment, sublease, or

mortgage under an agricultural lease

will be effective immediately,

notwithstanding any appeal that may be

filed under part 2 of this chapter. Copies

of approved documents will be

provided to the party requesting

approval, and made available to the

Indian landowners upon request.

§ 162.246 Must an amendment,

assignment, sublease, or mortgage

approved under an agricultural lease be

recorded?

An amendment, assignment, sublease,

or mortgage approved under an

agricultural lease must be recorded in

our Land Titles and Records Office that

has jurisdiction over the leased

premises. We will record the document

immediately following our approval

under this subpart.

Lease Enforcement

§ 162.247 Will BIA notify a tenant when a

rent payment is due under an agricultural

lease?

We may issue bills or invoices to a

tenant in advance of the dates on which

rent payments are due under an

agricultural lease, but the tenant’s

obligation to make such payments in a

timely manner will not be excused if

such bills or invoices are not delivered

or received.

§ 162.248 What will BIA do if rent

payments are not made in the time and

manner required by an agricultural lease?

(a) A tenant’s failure to pay rent in the

time and manner required by an

agricultural lease will be a violation of

the lease, and a notice of violation will

be issued under § 162.251 of this

subpart. If the lease requires that rent

payments be made to us, we will send

the tenant and its sureties a notice of

violation within five business days of

the date on which the rent payment was

due. If the lease provides for payment

directly to the Indian landowners, we

will send the tenant and its sureties a

notice of violation within five business

days of the date on which we receive

actual notice of non-payment from the

landowners.

(b) If a tenant fails to provide

adequate proof of payment or cure the

violation within the requisite time

period described in § 162.251(b) of this

subpart, and the amount due is not in

dispute, we may immediately take

action to recover the amount of the

unpaid rent and any associated interest

charges or late payment penalties. We

may also cancel the lease under

§ 162.252 of this subpart, or invoke any

other remedies available under the lease

or applicable law, including collection

on any available bond or referral of the

debt to the Department of the Treasury

for collection. An action to recover any

unpaid amounts will not be conditioned

on the prior cancellation of the lease or

any further notice to the tenant, nor will

such an action be precluded by a prior

cancellation.

(c) Partial payments may be accepted

by the Indian landowners or us, but

acceptance will not operate as a waiver

with respect to any amounts remaining

unpaid or any other existing lease

violations. Unless otherwise provided in

the lease, overpayments may be credited

as an advance against future rent

payments, or refunded.

(d) If a personal or business check is

dishonored, and a rent payment is

therefore not made by the due date, the

failure to make the payment in a timely

manner will be a violation of the lease,

and a notice of violation will be issued

under § 162.251 of this subpart. Any

payment made to cure such a violation,

and any future payments by the same

tenant, must be made by one of the

alternative payment methods listed in

§ 162.227(b) of this subpart.

§ 162.249 Will any special fees be

assessed on delinquent rent payments due

under an agricultural lease?

The following special fees will be

assessed if rent is not paid in the time

and manner required, in addition to any

interest or late payment penalties that

must be paid to the Indian landowners

under an agricultural lease. The

following special fees will be assessed

to cover administrative costs incurred

by the United States in the collection of

the debt:

The tenant will

pay * * * For * * *

(a) $50.00 ...... Administrative fee for dishonored checks.

The tenant will

pay * * * For * * *

(b) $15.00 ...... Administrative fee for BIA

processing of each notice

or demand letter.

(c) 18% of balance due.Administrative fee charged

by Treasury following referral for collection of delinquent debt.

§ 162.250 How will BIA determine whether

the activities of a tenant under an

agricultural lease are in compliance with the

terms of the lease?

(a) Unless an agricultural lease

provides otherwise, we may enter the

leased premises at any reasonable time,

without prior notice, to protect the

interests of the Indian landowners and

ensure that the tenant is in compliance

with the operating requirements of the

lease.

(b) If an Indian landowner notifies us

that a specific lease violation has

occurred, we will initiate an appropriate

investigation within five business days

of that notification.

§ 162.251 What will BIA do in the event of

a violation under an agricultural lease?

(a) If we determine that an

agricultural lease has been violated, we

will send the tenant and its sureties a

notice of violation within five business

days of that determination. The notice

of violation must be provided by

certified mail, return receipt requested.

(b) Within ten business days of the

receipt of a notice of violation, the

tenant must:

(1) Cure the violation and notify us in

writing that the violation has been

cured;

(2) Dispute our determination that a

violation has occurred and/or explain

why we should not cancel the lease; or

(3) Request additional time to cure the

violation.

§ 162.252 What will BIA do if a violation of

an agricultural lease is not cured within the

requisite time period?

(a) If the tenant does not cure a

violation of an agricultural lease within

the requisite time period, we will

consult with the Indian landowners, as

appropriate, and determine whether:

(1) The lease should be canceled by us

under paragraph (c) of this section and

§§ 162.253 through 162.254 of this

subpart;

(2) We should invoke any other

remedies available to us under the lease,

including collecting on any available

bond;

(3) The Indian landowners wish to

invoke any remedies available to them

under the lease; or

Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations 7121

(4) The tenant should be granted

additional time in which to cure the

violation.

(b) If we decide to grant a tenant

additional time in which to cure a

violation, the tenant must proceed

diligently to complete the necessary

corrective actions within a reasonable or

specified time period from the date on

which the extension is granted.

(c) If we decide to cancel the lease, we

will send the tenant and its sureties a

cancellation letter within five business

days of that decision. The cancellation

letter must be sent to the tenant by

certified mail, return receipt requested.

We will also provide actual or

constructive notice of a cancellation

decision to the Indian landowners, as

appropriate. The cancellation letter will:

(1) Explain the grounds for

cancellation;

(2) Notify the tenant of the amount of

any unpaid rent, interest charges, or late

payment penalties due under the lease;

(3) Notify the tenant of its right to

appeal under part 2 of this chapter, as

modified by § 162.253 of this subpart,

including the amount of any appeal

bond that must be posted with an

appeal of the cancellation decision; and

(4) Order the tenant to vacate the

property within 30 days of the date of

receipt of the cancellation letter, if an

appeal is not filed by that time.

§ 162.253 Will BIA’s regulations

concerning appeal bonds apply to

cancellation decisions involving

agricultural leases?

(a) The appeal bond provisions in

§ 2.5 of part 2 of this chapter will not

apply to appeals from lease cancellation

decisions made under § 162.252 of this

subpart. Instead, when we decide to

cancel an agricultural lease, we may

require that the tenant post an appeal

bond with an appeal of the cancellation

decision. The requirement to post an

appeal bond will apply in addition to all

of the other requirements in part 2 of

this chapter.

(b) An appeal bond should be set in

an amount necessary to protect the

Indian landowners against financial

losses that will likely result from the

delay caused by an appeal. Appeal bond

requirements will not be separately

appealable, but may be contested during

the appeal of the lease cancellation

decision.

§ 162.254 When will a cancellation of an

agricultural lease be effective?

A cancellation decision involving an

agricultural lease will not be effective

until 30 days after the tenant receives a

cancellation letter from us. The

cancellation decision will remain

ineffective if the tenant files an appeal

under § 162.253 of this subpart and part

2 of this chapter, unless the decision is

made immediately effective under part

2. While a cancellation decision is

ineffective, the tenant must continue to

pay rent and comply with the other

terms of the lease. If an appeal is not

filed in accordance with § 162.253 of

this subpart and part 2 of this chapter,

the cancellation decision will be

effective on the 31st day after the tenant

receives the cancellation letter from us.

§ 162.255 Can BIA take emergency action

if the leased premises are threatened with

immediate and significant harm?

If a tenant or any other party causes

or threatens to cause immediate and

significant harm to the leased premises

during the term of an agricultural lease,

we will take appropriate emergency

action. Emergency action may include

trespass proceedings under part 166,

subpart I, of this chapter, or judicial

action seeking immediate cessation of

the activity resulting in or threatening

the harm. Reasonable efforts will be

made to notify the Indian landowners,

either before or after the emergency

action is taken.

§ 162.256 What will BIA do if a tenant

holds over after the expiration or

cancellation of an agricultural lease?

If a tenant remains in possession after

the expiration or cancellation of an

agricultural lease, we will treat the

unauthorized use as a trespass. Unless

we have reason to believe that the

tenant is engaged in negotiations with

the Indian landowners to obtain a new

lease, we will take action to recover

possession on behalf of the Indian

landowners, and pursue any additional

remedies available under applicable

law, including the assessment of civil

penalties and costs under part 166,

subpart I, of this chapter.

Subpart C—Residential Leases

[Reserved]

Subpart D—Business Leases

[Reserved]

Subpart E—Special Requirements for

Certain Reservations

§ 162.500 Crow Reservation.

(a) Notwithstanding the regulations in

other sections of this part 162, Crow

Indians classified as competent under

the Act of June 4, 1920 (41 Stat. 751),

as amended, may lease their trust lands

and the trust lands of their minor

children for farming or grazing purposes

without the approval of the Secretary

pursuant to the Act of May 26, 1926 (44

Stat. 658), as amended by the Act of

March 15, 1948 (62 Stat. 80). However,

at their election Crow Indians classified

as competent may authorize the

Secretary to lease, or assist in the

leasing of such lands, and an

appropriate notice of such action shall

be made a matter of record. When this

prerogative is exercised, the general

regulations contained in this part 162

shall be applicable. Approval of the

Secretary is required on leases signed by

Crow Indians not classified as

competent or made on inherited or

devised trust lands owned by more than

five competent devisees or heirs.

(b) The Act of May 26, 1926 (44 Stat.

658), as amended by the Act of March

15, 1948 (62 Stat. 80), provides that no

lease for farming or grazing purposes

shall be made for a period longer than

five years, except irrigable lands under

the Big Horn Canal; which may be

leased for periods of ten years. No such

lease shall provide the lessee a

preference right to future leases which,

if exercised, would thereby extend the

total period of encumbrance beyond the

five or ten years authorized by law.

(c) All leases entered into by Crow

Indians classified as competent, under

the above-cited special statutes, must be

recorded at the Crow Agency. Such

recording shall constitute notice to all

persons. Under these special statutes,

Crow Indians classified as competent

are free to lease their property within

certain limitations. The five-year (tenyear in the case of lands under the Big

Horn Canal) limitation is intended to

afford a protection to the Indians. The

essence of this protection is the right to

deal with the property free, clear, and

unencumbered at intervals at least as

frequent as those provided by law. If

lessees are able to obtain new leases

long before the termination of existing

leases, they are in a position to set their

own terms. In these circumstances

lessees could perpetuate their

leaseholds and the protection of the

statutory limitations as to terms would

be destroyed. Therefore, in

implementation of the foregoing

interpretation, any lease which, on its

face, is in violation of statutory

limitations or requirements, and any

grazing lease executed more than 12

months, and any farming lease executed

more than 18 months, prior to the

commencement of the term thereof or

any lease which purports to cancel an

existing lease with the same lessee as of

a future date and take effect upon such

cancellation will not be recorded. Under

a Crow tribal program, approved by the

Department of the Interior, competent

Crow Indians may, under certain

circumstances, enter into agreements

7122 Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations

which require that, for a specified term,

their leases be approved. Information

concerning whether a competent Crow

Indian has executed such an instrument

is available at the office of the

Superintendent of the Crow Agency,

Bureau of Indian Affairs, Crow Agency,

Montana. Any lease entered into with a

competent Crow Indian during the time

such instrument is in effect and which

is not in accordance with such

instrument will be returned without

recordation.

(d) Where any of the following

conditions are found to exist, leases will

be recorded but the lessee and lessor

will be notified upon discovery of the

condition:

(1) The lease in single or counterpart

form has not been executed by all

owners of the land described in the

lease;

(2) There is, of record, a lease on the

land for all or a part of the same term;

(3) The lease does not contain

stipulations requiring sound land

utilization plans and conservation

practices; or

(4) There are other deficiencies such

as, but not limited to, erroneous land

descriptions, and alterations which are

not clearly endorsed by the lessor.

(e) Any adult Crow Indian classified

as competent shall have the full

responsibility for obtaining compliance

with the terms of any lease made by him

pursuant to this section. This shall not

preclude action by the Secretary to

assure conservation and protection of

these trust lands.

(f) Leases made by competent Crow

Indians shall be subject to the right to

issue permits and leases to prospect for,

develop, and mine oil, gas, and other

minerals, and to grant rights-of-way and

easements, in accordance with

applicable law and regulations. In the

issuance or granting of such permits,

leases, rights-of-way or easements due

consideration will be given to the

interests of lessees and to the

adjustment of any damages to such

interests. In the event of a dispute as to

the amount of such damage, the matter

will be referred to the Secretary whose

determination will be final as to the

amount of said damage.

§ 162.501 Fort Belknap Reservation.

Not to exceed 20,000 acres of allotted

and tribal lands (non-irrigable as well as

irrigable) on the Fort Belknap

Reservation in Montana may be leased

for the culture of sugar beets and other

crops in rotation for terms not exceeding

ten years.

§ 162.502 Cabazon, Augustine, and TorresMartinez Reservations, California.

(a) Upon a determination by the

Secretary that the owner or owners are

not making beneficial use thereof,

restricted lands on the Cabazon,

Augustine, and Torres-Martinez Indian

Reservations which are or may be

irrigated from distribution facilities

administered by the Coachella Valley

County Water District in Riverside

County, California, may be leased by the

Secretary in accordance with the

regulations in this part for the benefit of

the owner or owners.

(b) All leases granted or approved on

restricted lands of the Cabazon,

Augustine, and Torres-Martinez Indian

Reservations shall be filed for record in

the office of the county recorder of the

county in which the land is located, the

cost thereof to be paid by the lessee. A

copy of each such lease shall be filed by

the lessee with the Coachella Valley

County Water District or such other

irrigation or water district within which

the leased lands are located. All such

leases shall include a provision that the

lessee, in addition to the rentals

provided for in the lease, shall pay all

irrigation charges properly assessed

against the land which became payable

during the term of the lease. Act of

August 25, 1950 (64 Stat. 470); Act of

August 28, 1958 (72 Stat. 968).

§ 162.503 San Xavier and Salt River PimaMaricopa Reservations.

(a) Purpose and scope. The Act of

November 2, 1966 (80 Stat. 1112),

provides statutory authority for longterm leasing on the San Xavier and Salt

River Pima-Maricopa Reservations,

Arizona, in addition to that contained in

the Act of August 9, 1955 (69 Stat. 539),

as amended (25 U.S.C. 415). When

leases are made under the 1955 Act on

the San Xavier or Salt River PimaMaricopa Reservations, the regulations

in part 162 apply. The purpose of this

section is to provide regulations for

implementation of the 1966 Act. The

1966 Act does not apply to leases made

for purposes that are subject to the laws

governing mining leases on Indian

lands.

(b) Duration of leases. Leases made

under the 1966 Act for public, religious,

educational, recreational, residential, or

business purposes may be made for

terms of not to exceed 99 years. The

terms of a grazing lease shall not exceed

ten years; the term of a farming lease

that does not require the making of a

substantial investment in the

improvement of the land shall not

exceed ten years; and the term of a

farming lease that requires the making

of a substantial investment in the

improvement of the land shall not

exceed 40 years. No lease shall contain

an option to renew which extends the

total term beyond the maximum term

permitted by this section.

(c) Required covenant and

enforcement thereof. Every lease under

the 1966 Act shall contain a covenant

on the part of the lessee that he will not

commit or permit on the leased land any

act that causes waste or a nuisance or

which creates a hazard to health of

persons or to property wherever such

persons or property may be.

(d) Notification regarding leasing

proposals. If the Secretary determines

that a proposed lease to be made under

the 1966 Act for public, religious,

educational, recreational, residential, or

business purposes will substantially

affect the governmental interests of a

municipality contiguous to the San

Xavier Reservation or the Salt River

Pima-Maricopa Reservation, as the case

may be, he shall notify the appropriate

authority of such municipality of the

pendency of the proposed lease. The

Secretary may, in his discretion, furnish

such municipality with an outline of the

major provisions of the lease which

affect its governmental interests and

shall consider any comments on the

terms of the lease affecting the

municipality or on the absence of such

terms from the lease that the authorities

may offer. The notice to the authorities

of the municipality shall set forth a

reasonable period, not to exceed 30

days, within which any such comments

shall be submitted.

(e) Applicability of other regulations.

The regulations in part 162 of this title

shall apply to leases made under the

1966 Act except where such regulations

are inconsistent with this section.

(f) Mission San Xavier del Bac.

Nothing in the 1966 Act authorizes

development that would detract from

the scenic, historic, and religious values

of the Mission San Xavier del Bac

owned by the Franciscan Order of Friars

Minor and located on the San Xavier

Reservation.

Subpart F—Non-Agricultural Leases

§ 162.600 What types of leases are

covered by this subpart?

The regulations in this subpart apply

to any leases other than agricultural

leases, as defined in this part. To the

extent that any of the regulations in this

subpart conflict with the provisions of

the Indian Land Consolidation Act

Amendments of 2000, Pub. Law. 106–

462, the provisions of that Act will

govern.

Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations 7123

§ 162.601 Grants of leases by Secretary.

(a) The Secretary may grant leases on

individually owned land on behalf of:

(1) Persons who are non compos

mentis;

(2) Orphaned minors;

(3) The undetermined heirs of a

decedent’s estate;

(4) The heirs or devisees to

individually owned land who have not

been able to agree upon a lease during

the three-month period immediately

following the date on which a lease may

be entered into; provided, that the land

is not in use by any of the heirs or

devisees; and

(5) Indians who have given the

Secretary written authority to execute

leases on their behalf.

(b) The Secretary may grant leases on

the individually owned land of an adult

Indian whose whereabouts is unknown,

on such terms as are necessary to

protect and preserve such property.

(c) The Secretary may grant permits

on Government land.

§ 162.602 Grants of leases by owners or

their representatives.

The following may grant leases:

(a) Adults, other than those non

compos mentis,

(b) Adults, other than those non

compos mentis, on behalf of their minor

children, and on behalf of minor

children to whom they stand in loco

parentis when such children do not

have a legal representative,

(c) The guardian, conservator or other

fiduciary, appointed by a state court or

by a tribal court operating under an

approved constitution or law and order

code, of a minor or persons who are non

compos mentis or are otherwise under

legal disability,

(d) Tribes or tribal corporations acting

through their appropriate officials.

§ 162.603 Use of land of minors.

The natural or legal guardian, or other

person standing in loco parentis of

minor children who have the care and

custody of such children may use the

individually owned land of such

children during the period of minority

without charge for the use of the land

if such use will enable such person to

engage in a business or other enterprise

which will be beneficial to such minor

children.

§ 162.604 Special requirements and

provisions.

(a) All leases made pursuant to the

regulations in this part shall be in the

form approved by the Secretary and

subject to his written approval.

(b) Except as otherwise provided in

this part no lease shall be approved or

granted at less than the present fair

annual rental.

(1) An adult Indian owner of trust or

restricted land may lease his land for

religious, educational, recreational or

other public purposes to religious

organizations or to agencies of the

federal, state or local government at a

nominal rental. Such adult Indian may

lease land to members of his immediate

family with or without rental

consideration.

(2) In the discretion of the Secretary,

tribal land may be leased at a nominal

rental for religious, educational,

recreational, or other public purposes to

religious organizations or to agencies of

federal, state, or local governments; for

purposes of subsidization for the benefit

of the tribe; and for homesite purposes

to tribal members provided the land is

not commercial or industrial in

character.

(3) Leases may be granted or approved

by the Secretary at less than the fair

annual rental when in his judgment

such action would be in the best interest

of the landowners.

(c) Unless otherwise provided by the

Secretary a satisfactory surety bond will

be required in an amount that will

reasonably assure performance of the

contractual obligations under the lease.

Such bond may be for the purpose of

guaranteeing:

(1) Not less than one year’s rental

unless the lease contract provides that

the annual rental shall be paid in

advance.

(2) The estimated construction cost of

any improvement to be placed on the

land by the lessee.

(3) An amount estimated to be

adequate to insure compliance with any

additional contractual obligations.

(d) The lessee may be required to

provide insurance in an amount

adequate to protect any improvements

on the leased premises; the lessee may

also be required to furnish appropriate

liability insurance, and such other

insurance as may be necessary to protect

the lessor’s interest.

(e) No lease shall provide the lessee

a preference right to future leases nor

shall any lease contain provisions for

renewal, except as otherwise provided

in this part. No lease shall be entered

into more than 12 months prior to the

commencement of the term of the lease.

Except with the approval of the

Secretary no lease shall provide for

payment of rent in advance of the

beginning of the annual use period for

which such rent is paid. The lease

contract shall contain provisions as to

the dates rents shall become due and

payable.

(f) Leases granted or approved under

this part shall contain provisions as to

whether payment of rentals is to be

made direct to the owner of the land or

his representative or to the official of the

Bureau of Indian Affairs having

jurisdiction over the leased premises.

(g) All leases issued under this part

shall contain the following provisions:

(1) While the leased premises are in

trust or restricted status, all of the

lessee’s obligations under this lease, and

the obligations of his sureties, are to the

United States as well as to the owner of

the land.

(2) Nothing contained in this lease

shall operate to delay or prevent a

termination of federal trust

responsibilities with respect to the land

by the issuance of a fee patent or

otherwise during the term of the lease;

however, such termination shall not

serve to abrogate the lease. The owners

of the land and the lessee and his surety

or sureties shall be notified of any such

change in the status of the land.

(3) The lessee agrees that he will not

use or cause to be used any part of the

leased premises for any unlawful

conduct or purpose.

(h) Leases granted or approved under

this part on individually owned lands

which provide for payment of rental

direct to the owner or his representative

shall contain the following provisions:

(1) In the event of the death of the

owner during the term of this lease and

while the leased premises are in trust or

restricted status, all rentals remaining

due or payable to the decedent or his

representative under the provisions of

the lease shall be paid to the official of

the Bureau of Indian Affairs having

jurisdiction over the leased premises.

(2) While the leased premises are in

trust or restricted status, the Secretary

may in his discretion suspend the direct

rental payment provisions of this lease

in which event the rentals shall be paid

to the official of the Bureau of Indian

Affairs having jurisdiction over the

leased premises.

§ 162.605 Negotiation of leases.

(a) Leases of individually owned land

or tribal land may be negotiated by

those owners or their representatives

who may execute leases pursuant to

§ 162.602 of this subpart.

(b) Where the owners of a majority

interest, or their representatives, who

may grant leases under § 162.602 of this

subpart, have negotiated a lease

satisfactory to the Secretary he may join

in the execution of the lease and thereby

commit the interests of those persons in

whose behalf he is authorized to grant

leases under § 162.601(a)(1), (2), (3), and

(5) of this subpart.

7124 Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations

(c) Where the Secretary may grant

leases under § 162.601 of this subpart he

may negotiate leases when in his

judgment the fair annual rental can thus

be obtained.

§ 162.606 Advertisement.

Except as otherwise provided in this

part, prior to granting a lease or permit

as authorized under § 162.601 of this

subpart the Secretary shall advertise the

land for lease. Advertisements will call

for sealed bids and will not offer

preference rights.

§ 162.607 Duration of leases.

Leases granted or approved under this

part shall be limited to the minimum

duration, commensurate with the

purpose of the lease, that will allow the

highest economic return to the owner

consistent with prudent management

and conservation practices, and except

as otherwise provided in this part shall

not exceed the number of years

provided for in this section. Except for

those leases authorized by

§ 162.604(b)(1) and (2) of this subpart,

unless the consideration for the lease is

based primarily on percentages of

income produced by the land, the lease

shall provide for periodic review, at not

less than five-year intervals, of the

equities involved. Such review shall

give consideration to the economic

conditions at the time, exclusive of

improvement or development required

by the contract or the contribution value

of such improvements. Any adjustments

of rental resulting from such review may

be made by the Secretary where he has

the authority to grant leases, otherwise

the adjustment must be made with the

written concurrence of the owners and

the approval of the Secretary.

(a) Leases for public, religious,

educational, recreational, residential, or

business purposes shall not exceed 25

years but may include provisions

authorizing a renewal or an extension

for one additional term of not to exceed

25 years, except such leases of land on

the Hollywood (formerly Dania)

Reservation, Fla.; the Navajo

Reservation, Ariz., N. Mex., and Utah;

the Palm Springs Reservation, Calif.; the

Southern Ute Reservation, Colo.; the

Fort Mohave Reservation, Calif., Ariz.,

and Nev.; the Pyramid Lake Reservation,

Nev.; the Gila River Reservation, Ariz.;

the San Carlos Apache Reservation,

Ariz.; the Spokane Reservation, Wash.;

the Hualapai Reservation, Ariz.; the

Swinomish Reservation, Wash.; the

Pueblos of Cochiti, Pojoaque, Tesuque,

and Zuni, N. Mex.; and land on the

Colorado River Reservation, Ariz., and

Calif.; which leases may be made for

terms of not to exceed 99 years.

(b) Leases granted by the Secretary

pursuant to § 162.601(a)(3) of this

subpart shall be for a term of not to

exceed two years except as otherwise

provided in § 162.605(b) of this subpart.

§ 162.608 Ownership of improvements.

Improvements placed on the leased

land shall become the property of the

lessor unless specifically excepted

therefrom under the terms of the lease.

The lease shall specify the maximum

time allowed for removal of any

improvements so excepted.

§ 162.609 Unitization for leasing.

Where it appears advantageous to the

owners and advantageous to the

operation of the land a single lease

contract may include more than one

parcel of land in separate ownerships,

tribal or individual, provided the

statutory authorities and other

applicable requirements of this part are

observed.

§ 162.610 Subleases and assignments.

(a) Except as provided in paragraphs

(b), (c), and (d) of this section, a

sublease, assignment, amendment or

encumbrance of any lease or permit

issued under this part may be made

only with the approval of the Secretary

and the written consent of all parties to

such lease or permit, including the

surety or sureties.

(b) With the consent of the Secretary,

the lease may contain a provision

authorizing the lessee to sublease the

premises, in whole or in part, without

further approval. Subleases so made

shall not serve to relieve the sublessor

from any liability nor diminish any

supervisory authority of the Secretary

provided for under the approved lease.

(c) With the consent of the Secretary,

the lease may contain provisions

authorizing the lessee to encumber his

leasehold interest in the premises for

the purpose of borrowing capital for the

development and improvement of the

leased premises. The encumbrance

instrument, must be approved by the

Secretary. If a sale or foreclosure under

the approved encumbrance occurs and

the encumbrancer is the purchaser, he

may assign the leasehold without the

approval of the Secretary or the consent

of the other parties to the lease,

provided, however, that the assignee

accepts and agrees in writing to be

bound by all the terms and conditions

of the lease. If the purchaser is a party

other than the encumbrancer, approval

by the Secretary of any assignment will

be required, and such purchaser will be

bound by the terms of the lease and will

assume in writing all the obligations

thereunder.

(d) With the consent of the Secretary,

leases of tribal land to individual

members of the tribe or to tribal housing

authorities may contain provisions

permitting the assignment of the lease

without further consent or approval

where a lending institution or an agency

of the United States makes, insures or

guarantees a loan to an individual

member of the tribe or to a tribal

housing authority for the purpose of

providing funds for the construction of

housing for Indians on the leased

premises; provided, the leasehold has

been pledged as security for the loan

and the lender has obtained the

leasehold by foreclosure or otherwise.

Such leases may with the consent of the

Secretary also contain provisions

permitting the lessee to assign the lease

without further consent or approval.

§ 162.611 Payment of fees and drainage

and irrigation charges.

(a) Any lease covering lands within an

irrigation project or drainage district

shall require the lessee to pay annually

on or before the due date, during the

term of the lease and in the amounts

determined, all charges assessed against

such lands. Such charges shall be in

addition to the rental payments

prescribed in the lease. All payments of

such charges and penalties shall be

made to the official designated in the

lease to receive such payments.

(b) We will charge an administrative

fee each time we approve an agricultural

lease, amendment, assignment,

sublease, mortgage, or related

document. These fees will be paid by

the tenant, assignee, or subtenant, to

cover our costs in preparing or

processing the documents and

administering the lease.

(c) Except as provided in paragraph

(d) of this section, we will charge

administrative fees based on the rent

payable under the lease. The fee will be

3% of the annual rent payable,

including any percentage or cropshare

rent that can be reasonably estimated.

(d) The minimum administrative fee

is $10.00 and the maximum

administrative fee is $500.00, and any

administrative fees that have been paid

will be non-refundable. However, we

may waive all or part of these

administrative fees, in our discretion.

(e) If all or part of the expenses of the

work are paid from tribal funds, the

tribe may establish an additional or

alternate schedule of fees.

§ 162.612 Can a lease provide for

negotiated remedies in the event of a

violation?

(a) A lease of tribal land may provide

the tribe with certain negotiated

Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations 7125

remedies in the event of a lease

violation, including the power to

terminate the lease. A lease of

individually-owned land may provide

the individual Indian landowners with

similar remedies, so long as the lease

also specifies the manner in which

those remedies may be exercised by or

on behalf of the landowners.

(b) The negotiated remedies described

in paragraph (a) of this section will

apply in addition to the cancellation

remedy available to us under

§ 162.619(c) of this subpart. If the lease

specifically authorizes us to exercise

any negotiated remedies on behalf of the

Indian landowners, the exercise of such

remedies may substitute for

cancellation.

(c) A lease may provide for lease

disputes to be resolved in tribal court or

any other court of competent

jurisdiction, or through arbitration or

some other alternative dispute

resolution method. We may not be

bound by decisions made in such

forums, but we will defer to ongoing

proceedings, as appropriate, in deciding

whether to exercise any of the remedies

available to us under § 162.619 of this

subpart.

§ 162.613 Will BIA notify a tenant when a

rent payment is due under a lease?

We may issue bills or invoices to a

tenant in advance of the dates on which

rent payments are due under a lease, but

the tenant’s obligation to make such

payments in a timely manner will not be

excused if such bills or invoices are not

delivered or received.

§ 162.614 Will untimely rent payments

made under a lease be subject to interest

charges or late payment penalties?

A lease must specify the rate at which

interest will accrue on any rent payment

not made by the due date or any other

date specified in the lease. A lease may

also identify additional late payment

penalties that will apply if a rent

payment is not made by a specified

date. Unless otherwise provided in the

lease, such interest charges and late

payment penalties will apply in the

absence of any specific notice to the

tenant from us or the Indian

landowners, and the failure to pay such

amounts will be treated as a lease

violation under § 162.618 of this

subpart.

§ 162.615 What will BIA do if rent

payments are not made in the time and

manner required by a lease?

(a) A tenant’s failure to pay rent in the

time and manner required by a lease

will be a violation of the lease, and a

notice of violation will be issued under

§ 162.618 of this subpart. If the lease

requires that rent payments be made to

us, we will send the tenant and its

sureties a notice of violation within five

business days of the date on which the

rent payment was due. If the lease

provides for payment directly to the

Indian landowners, we will send the

tenant and its sureties a notice of

violation within five business days of

the date on which we receive actual

notice of non-payment from the

landowners.

(b) If a tenant fails to provide

adequate proof of payment or cure the

violation within the requisite time

period described in § 162.618(b) of this

subpart, and the amount due is not in

dispute, we may immediately take

action to recover the amount of the

unpaid rent and any associated interest

charges or late payment penalties. We

may also cancel the lease under

§ 162.619 of this subpart, or invoke any

other remedies available under the lease

or applicable law, including collection

on any available bond or referral of the

debt to the Department of the Treasury

for collection. An action to recover any

unpaid amounts will not be conditioned

on the prior cancellation of the lease or

any further notice to the tenant, nor will

such an action be precluded by a prior

cancellation.

(c) Partial payments and

underpayments may be accepted by the

Indian landowners or us, but acceptance

will not operate as a waiver with respect

to any amounts remaining unpaid or

any other existing lease violations.

Unless otherwise provided in the lease,

overpayments may be credited as an

advance against future rent payments, or

refunded.

(d) If a personal or business check is

dishonored, and a rent payment is

therefore not made by the due date, the

failure to make the payment in a timely

manner will be a violation of the lease,

and a notice of violation will be issued

under § 162.618 of this subpart. Any

payment made to cure such a violation,

and any future payments by the same

tenant, must be made by an alternative

payment method approved by us.

§ 162.616 Will any special fees be

assessed on delinquent rent payments due

under a lease?

The following special fees will be

assessed if rent is not paid in the time

and manner required, in addition to any

interest or late payment penalties that

must be paid to the Indian landowners

under a lease. The following special fees

will be assessed to cover administrative

costs incurred by the United States in

the collection of the debt:

The tenant will

pay * * * For * * *

(a) $50.00 ...... Administrative fee for dishonored checks.

(b) $15.00 ...... Administrative fee for BIA

processing of each notice

or demand letter.

(c) 18% of balance due.Administrative fee charged

by Treasury following referral for collection of delinquent debt.

§ 162.617 How will BIA determine whether

the activities of a tenant under a lease are

in compliance with the terms of the lease?

(a) Unless a lease provides otherwise,

we may enter the leased premises at any

reasonable time, without prior notice, to

protect the interests of the Indian

landowners and ensure that the tenant

is in compliance with the operating

requirements of the lease.

(b) If an Indian landowner notifies us

that a specific lease violation has

occurred, we will initiate an appropriate

investigation within five business days

of that notification.

§ 162.618 What will BIA do in the event of

a violation under a lease?

(a) If we determine that a lease has

been violated, we will send the tenant

and its sureties a notice of violation

within five business days of that

determination. The notice of violation

must be provided by certified mail,

return receipt requested.

(b) Within ten business days of the

receipt of a notice of violation, the

tenant must:

(1) Cure the violation and notify us in

writing that the violation has been

cured;

(2) Dispute our determination that a

violation has occurred and/or explain

why we should not cancel the lease; or

(3) Request additional time to cure the

violation.

§ 162.619 What will BIA do if a violation of

a lease is not cured within the requisite time

period?

(a) If the tenant does not cure a

violation of a lease within the requisite

time period, we will consult with the

Indian landowners, as appropriate, and

determine whether:

(1) The lease should be canceled by us

under paragraph (c) of this section and

§§ 162.620 through 162.621 of this

subpart;

(2) We should invoke any other

remedies available to us under the lease,

including collecting on any available

bond;

(3) The Indian landowners wish to

invoke any remedies available to them

under the lease; or

7126 Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations

(4) The tenant should be granted

additional time in which to cure the

violation.

(b) If we decide to grant a tenant

additional time in which to cure a

violation, the tenant must proceed

diligently to complete the necessary

corrective actions within a reasonable or

specified time period from the date on

which the extension is granted.

(c) If we decide to cancel the lease, we

will send the tenant and its sureties a

cancellation letter within five business

days of that decision. The cancellation

letter must be sent to the tenant by

certified mail, return receipt requested.

We will also provide actual or

constructive notice of a cancellation

decision to the Indian landowners, as

appropriate. The cancellation letter will:

(1) Explain the grounds for

cancellation;

(2) Notify the tenant of the amount of

any unpaid rent, interest charges, or late

payment penalties due under the lease;

(3) Notify the tenant of its right to

appeal under part 2 of this chapter, as

modified by § 162.620 of this subpart,

including the amount of any appeal

bond that must be posted with an

appeal of the cancellation decision; and

(4) Order the tenant to vacate the

property within 30 days of the date of

receipt of the cancellation letter, if an

appeal is not filed by that time.

§ 162.620 Will BIA’s regulations

concerning appeal bonds apply to

cancellation decisions involving leases?

(a) The appeal bond provisions in

§ 2.5 of part 2 of this chapter will not

apply to appeals from lease cancellation

decisions made under § 162.619 of this

subpart. Instead, when we decide to

cancel an agricultural lease, we may

require that the tenant post an appeal

bond with an appeal of the cancellation

decision. The requirement to post an

appeal bond will apply in addition to all

of the other requirements in part 2 of

this chapter.

(b) An appeal bond should be set in

an amount necessary to protect the

Indian landowners against financial

losses that will likely result from the

delay caused by an appeal. Appeal bond

requirements will not be separately

appealable, but may be contested during

the appeal of the lease cancellation

decision.

§ 162.621 When will a cancellation of a

lease be effective?

A cancellation decision involving an

agricultural lease will not be effective

until 30 days after the tenant receives a

cancellation letter from us. The

cancellation decision will remain

ineffective if the tenant files an appeal

under § 162.620 of this subpart and part

2 of this chapter, unless the decision is

made immediately effective under part

2. While a cancellation decision is

ineffective, the tenant must continue to

pay rent and comply with the other

terms of the lease. If an appeal is not

filed in accordance with § 162.620 of

this subpart and part 2 of this chapter,

the cancellation decision will be

effective on the 31st day after the tenant

receives the cancellation letter from us.

§ 162.622 Can BIA take emergency action

if the leased premises are threatened with

immediate and significant harm?

If a tenant or any other party causes

or threatens to cause immediate and

significant harm to the leased premises

during the term of a lease, we will take

appropriate emergency action.

Emergency action may include judicial

action seeking immediate cessation of

the activity resulting in or threatening

the harm. Reasonable efforts will be

made to notify the Indian landowners,

either before or after the emergency

action is taken.

§ 162.623 What will BIA do if a tenant

holds over after the expiration or

cancellation of a lease?

If a tenant remains in possession after

the expiration or cancellation of a lease,

we will treat the unauthorized use as a

trespass. Unless we have reason to

believe that the tenant is engaged in

negotiations with the Indian landowners

to obtain a new lease, we will take

action to recover possession on behalf of

the Indian landowners, and pursue any

additional remedies available under

applicable law.

PART 166—GRAZING PERMITS

5. Part 166 is revised to read as

follows:

Subpart A—Purpose, Scope, and

Definitions

Sec.

166.1 What is the purpose and scope of this

part?

166.2 Can the BIA waive the application of

these regulations?

166.3 May decisions under this part be

appealed?

166.4 What terms do I need to know?

Subpart B—Tribal Policies and Laws

Pertaining to Permits

166.100 What special tribal policies will we

apply to permitting on Indian

agricultural lands?

166.101 May individual Indian landowners

exempt their land from certain tribal

policies for permitting on Indian

agricultural lands?

166.102 Do tribal laws apply to permits?

166.103 How will tribal laws be enforced

on Indian agricultural land?

166.104 What notifications are required that

tribal laws apply to permits on Indian

agricultural lands?

Subpart C—Permit Requirements

General Requirements

166.200 When is a permit needed to

authorize possession of Indian land for

grazing purposes?

166.201 Must parents or guardians of

Indian minors who own Indian land

obtain a permit before using land for

grazing purposes?

166.202 May an emancipated minor grant a

permit?

166.203 When can the Indian landowners

grant a permit?

166.204 Who may represent an individual

Indian landowner in granting a permit?

166.205 When can the BIA grant a permit

on behalf of Indian landowners?

166.206 What requirements apply to a

permit on a fractionated tract?

166.207 What provisions will be contained

in a permit?

166.208 How long is a permit term?

166.209 Must a permit be recorded?

166.210 When is a decision by the BIA

regarding a permit effective?

166.211 When are permits effective?

166.212 When may a permittee take

possession of permitted Indian land?

166.213 Must I comply with any standards

of conduct if I am granted a permit?

166.214 Will the BIA notify the permittee of

any change in land title status?

Obtaining a Permit

166.215 How can I find Indian land

available for grazing?

166.216 Who is responsible for permitting

Indian land?

166.217 In what manner may a permit on

Indian land be granted?

166.218 How do I acquire a permit through

tribal allocation?

166.219 How do I acquire a permit through

negotiation?

166.220 What are the basic steps for

acquiring a permit through negotiation?

166.221 How do I acquire an advertised

permit through competitive bidding?

166.222 Are there standard permit forms?

Permit (Leasehold) Mortgage

166.223 Can I use a permit as collateral for

a loan?

166.224 What factors does the BIA consider

when reviewing a leasehold mortgage?

166.225 May a permittee voluntarily assign

a leasehold interest under an approved

encumbrance?

166.226 May the holder of a leasehold

mortgage assign the leasehold interest

after a sale or foreclosure of an approved

encumbrance?

Modifying a Permit

166.227 How can Indian land be removed

from an existing permit?

166.228 How will the BIA provide notice if

Indian land is removed from an existing

permit?

166.229 Other than to remove land, how

can a permit be amended, assigned,

subpermitted, or mortgaged?

Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations 7127

166.230 When will a BIA decision to

approve an amendment, assignment,

subpermit, or mortgage under a permit

be effective?

166.231 Must an amendment, assignment,

subpermit, or mortgage approved under

a permit be recorded?

Subpart D—Land and Operations

Management

166.300 How is Indian agricultural land

managed?

166.301 How is Indian land for grazing

purposes described?

166.302 How is a range unit created?

166.303 Can more than one parcel of Indian

land be combined into one permit?

166.304 Can there be more than one permit

for each range unit?

166.305 When is grazing capacity

determined?

166.306 Can the BIA adjust the grazing

capacity?

166.307 Will the grazing capacity be

increased if I graze adjacent trust or nontrust rangelands not covered by the

permit?

166.308 Can the number of animals and/or

season of use be modified on the

permitted land if I graze adjacent trust or

non-trust rangelands under an on-and-off

grazing permit?

166.309 Who determines livestock class

and livestock ownership requirements

on permitted Indian land?

166.310 What must a permittee do to

protect livestock from exposure to

disease?

Management Plans and Environmental

Compliance

166.311 Is an Indian agricultural resource

management plan required?

166.312 Is a conservation plan required?

166.313 Is environmental compliance

required?

Conservation Practices and Improvements

166.314 Can a permittee apply a

conservation practice on permitted

Indian land?

166.315 Who is responsible for the

completion and maintenance of a

conservation practice if the permit

expires or is canceled before the

completion of the conservation practice?

166.316 Can a permittee construct

improvements on permitted Indian land?

166.317 What happens to improvements

constructed on Indian lands when the

permit has been terminated?

Subpart E—Grazing Rental Rates,

Payments, and Late Payment Collections

Rental Rate Determination and Adjustment

166.400 Who establishes grazing rental

rates?

166.401 How does the BIA establish grazing

rental rates?

166.402 Why must the BIA determine the

fair annual rental of Indian land?

166.403 Will the BIA ever grant or approve

a permit at less than fair annual rental?

166.404 Whose grazing rental rate will be

applicable for a permit on tribal land?

166.405 Whose grazing rental rate will be

applicable for a permit on individuallyowned Indian land?

166.406 Whose grazing rental rate will be

applicable for a permit on government

land?

166.407 If a range unit consists of tribal and

individually-owned Indian lands, what

is the grazing rental rate?

166.408 Is the grazing rental rate

established by the BIA adjusted

periodically?

Rental Payments

166.409 How is my grazing rental payment

determined?

166.410 When are grazing rental payments

due?

166.411 Will a permittee be notified when

a grazing rental payment is due?

166.412 What if the permittee does not

receive an invoice that a grazing rental

payment is due?

166.413 To whom are grazing rental

payments made?

166.414 What forms of grazing rental

payments are acceptable?

166.415 What will the BIA do if the

permittee fails to make a direct payment

to an Indian landowner?

166.416 May a permittee make a grazing

rental payment in advance of the due

date?

166.417 May an individual Indian

landowner modify the terms of the

permit on a fractionated tract for advance

grazing rental payment?

166.418 When is a grazing rental payment

late?

Late Rental Payment Collections

166.419 What will the BIA do if grazing

rental payments are not made in the time

and manner required by the permit?

166.420 Will any special fees be assessed

on delinquent grazing rental payments

due under a permit?

166.421 If a permit is canceled for nonpayment, does that extinguish the

permittee’s debt?

Compensation to Indian Landowners

166.422 What does the BIA do with grazing

rental payments received from

permittees?

166.423 How do Indian landowners receive

grazing rental payments that the BIA has

received from permittees?

166.424 How will the BIA determine the

grazing rental payment amount to be

distributed to each Indian landowner?

Subpart F—Administrative and Tribal Fees

166.500 Are there administrative fees for a

permit?

166.501 How are annual administrative fees

determined?

166.502 Are administrative fees refundable?

166.503 May the BIA waive administrative

fees?

166.504 Are there any other administrative

or tribal fees, taxes, or assessments that

must be paid?

Subpart G—Bonding and Insurance

Requirements

166.600 Must a permittee provide a bond

for a permit?

166.601 How is the amount of the bond

determined?

166.602 What form of bonds will the BIA

accept?

166.603 If cash is submitted as a bond, how

is it administered?

166.604 Is interest paid on a cash

performance bond?

166.605 Are cash performance bonds

refunded?

166.606 What happens to a bond if a

violation occurs?

166.607 Is insurance required for a permit?

166.608 What types of insurance may be

required?

Subpart H—Permit Violations

166.700 What permit violations are

addressed by this subpart?

166.701 How will the BIA determine

whether the activities of a permittee

under a permit are in compliance with

the terms of the permit?

166.702 Can a permit provide for negotiated

remedies in the event of a permit

violation?

166.703 What happens if a permit violation

occurs?

166.704 What will a written notice of a

permit violation contain?

166.705 What will the BIA do if a permit

violation is not cured within the

required time period?

166.706 Will the BIA’s regulations

concerning appeal bonds apply to

cancellation decisions involving

permits?

166.707 When will a cancellation of a

permit be effective?

166.708 Can the BIA take emergency action

if the rangeland is threatened with

immediate, significant, and irreparable

harm?

166.709 What will the BIA do if a permittee

holds over after the expiration or

cancellation of a permit?

Subpart I—Trespass

166.800 What is trespass?

166.801 What is the BIA’s trespass policy?

166.802 Who can enforce this subpart?

Notification

166.803 How are trespassers notified of a

trespass determination?

166.804 What can I do if I receive a trespass

notice?

166.805 How long will a written trespass

notice remain in effect?

Actions

166.806 What actions does the BIA take

against trespassers?

166.807 When will we impound

unauthorized livestock or other

property?

166.808 How are trespassers notified if their

unauthorized livestock or other property

are to be impounded?

166.809 What happens after my

unauthorized livestock or other property

are impounded?

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166.810 How do I redeem my impounded

livestock or other property?

166.811 How will the sale of impounded

livestock or other property be

conducted?

Penalties, Damages, and Costs

166.812 What are the penalties, damages,

and costs payable by trespassers on

Indian agricultural land?

166.813 How will the BIA determine the

value of forage or crops consumed or

destroyed?

166.814 How will the BIA determine the

value of the products or property

illegally used or removed?

166.815 How will the BIA determine the

amount of damages to Indian agricultural

land?

166.816 How will the BIA determine the

costs associated with enforcement of the

trespass?

166.817 What happens if I do not pay the

assessed penalties, damages and costs?

166.818 How are the proceeds from trespass

distributed?

166.819 What happens if the BIA does not

collect enough money to satisfy the

penalty?

Subpart J—Agriculture Education,

Education Assistance, Recruitment, and

Training

166.900 How are the Indian agriculture

education programs operated?

166.901 How will the BIA select an

agriculture intern?

166.902 How can I become an agriculture

educational employment student?

166.903 How can I get an agriculture

scholarship?

166.904 What is agriculture education

outreach?

166.905 Who can get assistance for

postgraduate studies?

166.906 What can happen if we recruit you

after graduation?

166.907 Who can be an intern?

166.908 Who can participate in continuing

education and training?

166.909 What are my obligations to the BIA

after I participate in an agriculture

education program?

166.910 What happens if I do not fulfill my

obligation to the BIA?

Subpart K—Records

166.1000 Who owns the records associated

with this part?

166.1001 How must records associated with

this part be preserved?

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

2; R.S. 465, 25 U.S.C. 9; Sec. 6, 96 Stat. 986,

25 U.S.C. 466. Interpret or apply R.S. 2078,

25 U.S.C. 68; R.S. 2117, 25 U.S.C. 179; Sec.

3, 26 Stat. 795, 25 U.S.C. 397; Sec. 1, 28 Stat.

305, 25 U.S.C. 402; Sec. 4, 36 Stat. 856, 25

U.S.C. 403; Sec. 1, 39 Stat. 128, 25 U.S.C.

394; Sec. 1, 41 Stat. 1232, 25 U.S.C. 393; Sec.

16, 17, 48 Stat. 987, 988, 25 U.S.C. 476, 477;

Sec. 1, 2, 4, 5, 6, 69 Stat. 539, 540, 25 U.S.C.

415, 415a, 415b, 415c, 415d, 25 U.S.C. 3701,

3702, 3703, 3711, 3712, 3713, 3714, 3731,

3732, 3733, 3734, 3741, 3742, 3743, 3744,

3745, 107 Stat. 2011; 44 U.S.C. § 3101, et

seq.)

Subpart A—Purpose, Scope, and

Definitions

§ 166.1 What is the purpose and scope of

this part?

(a) The purpose of this part is to

describe the authorities, policies, and

procedures the BIA uses to approve,

grant, and administer a permit for

grazing on tribal land, individuallyowned Indian land, or government land.

(b) If the BIA’s approval is not

required for a permit, these regulations

will not apply.

(c) These regulations do not apply to

any tribal land which is permitted

under a corporate charter issued by us

pursuant to 25 U.S.C. § 477, or under a

special act of Congress authorizing

permits without our approval under

certain conditions, except to the extent

that the authorizing statutes require us

to enforce such permits on behalf of the

Indian landowners.

(d) To the extent that any provisions

of this part conflict with Section 213 of

the Indian Land Consolidation Act

Amendments of 2000, the provisions of

that act will govern.

(e) In approving a permit on behalf of

the Indian landowners, the BIA will not

permit for fee interest owners nor will

we collect rent on behalf of fee interest

owners. Our permitting of the trust and

restricted interests of the Indian

landowners will not be conditioned on

a permit having been obtained from any

fee interest owners. However, where all

of the trust or restricted interests in a

tract are subject to a life estate held in

fee status, we will approve a permit of

the remainder interests of the Indian

landowners only if such action is

necessary to preserve the value of the

land or protect the interests of the

Indian landowners. Where a life estate

and remainder interest are both owned

in trust or restricted status, the life

estate and remainder interest must both

be permitted under these regulations,

unless the permit is for less than one

year in duration. Unless otherwise

provided by the document creating the

life estate or by agreement, rent payable

under the permit must be paid to the

holder of the life estate under part 179

of this title.

§ 166.2 Can the BIA waive the application

of these regulations?

Yes. In any case in which these

regulations conflict with the objectives

of the agricultural resource management

plan provided for in § 166.311 of this

part, or with a tribal law, the BIA may

waive the application of such

regulations unless the waiver would

constitute a violation of a federal statute

or judicial decision or would conflict

with the BIA’s general trust

responsibility under federal law.

§ 166.3 May decisions under this part be

appealed?

Yes. Except where otherwise provided

in this part, appeals from decisions by

the BIA under this part may be taken

pursuant to 25 CFR part 2.

§ 166.4 What terms do I need to know?

Adult means an individual Indian

who is 18 years of age or older.

Agency means the agency or field

office or any other designated office in

the Bureau of Indian Affairs (BIA)

having jurisdiction over trust or

restricted property or money.

Agricultural product means:

(1) Crops grown under cultivated

conditions whether used for personal

consumption, subsistence, or sold for

commercial benefit;

(2) Domestic livestock, including

cattle, sheep, goats, horses, buffalo,

swine, reindeer, fowl, or other animals

specifically raised and used for food or

fiber or as a beast of burden;

(3) Forage, hay, fodder, food grains,

crop residues and other items grown or

harvested for the feeding and care of

livestock, sold for commercial profit, or

used for other purposes; and

(4) Other marketable or traditionally

used materials authorized for removal

from Indian agricultural lands.

Agricultural resource management

plan means a ten-year plan developed

through the public review process

specifying the tribal management goals

and objectives developed for tribal

agricultural and grazing resources. Plans

developed and approved under

AIARMA will govern the management

and administration of Indian

agricultural resources and Indian

agricultural lands by the BIA and Indian

tribal governments.

AIARMA means American Indian

Agricultural Resources Management Act

of December 3, 1993 (107 Stat. 2011, 25

U.S.C. 3701 et seq.), and amended on

November 2, 1994 (108 Stat. 4572).

Allocation means the apportionment

of grazing privileges without

competition to tribal members or tribal

entities, including the tribal designation

of permittees and the number and kind

of livestock to be grazed.

Animal Unit Month (AUM) means the

amount of forage required to sustain one

cow or one cow with one calf for one

month.

Approving/approval means the action

taken by the BIA to approve a permit.

Assign/assignment means an

agreement between a permittee and an

assignee, whereby the assignee acquires

all of the permittee’s rights, and

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assumes all of the permittee’s

obligations under a permit.

Assignee means the person to whom

the permit rights for use of Indian land

are assigned.

BIA means the Bureau of Indian

Affairs within the Department of the

Interior and any tribe acting on behalf

of the BIA under this part.

Bond means security for the

performance of certain permit

obligations, as furnished by the

permitee, or a guaranty of such

performance as furnished by a thirdparty surety.

Conservation plan means a statement

of management objectives for grazing,

including contract stipulations defining

required uses, operations, and

improvements.

Conservation practice means a

management action to protect, conserve,

utilize, and maintain the sustained yield

productivity of Indian agricultural land.

Day means a calendar day.

Encumbrance means mortgage, deed

of trust or other instrument which

secures a debt owed by a permittee to

a lender or other holder of a leasehold

mortgage on the permit interest.

Emancipated minor means a person

under 18 years of age who is married or

who is determined by a court of

competent jurisdiction to be legally able

to care for himself or herself.

Fair annual rental means the amount

of rental income that a permitted parcel

of Indian land would most probably

command in an open and competitive

market.

Farmland means Indian land,

excluding Indian forest land, that is

used for production of food, feed, fiber,

forage, and seed, oil crops, or other

agricultural products, and may be either

dry land, irrigated land, or irrigated

pasture.

Fee interest means an interest in land

that is owned in unrestricted fee status,

and is thus freely alienable by the fee

owner.

Fractionated tract means a tract of

Indian land owned in common by

Indian landowners and/or fee owners

holding undivided interests therein.

Government land means any tract, or

interest therein, in which the surface

estate is owned by the United States and

administered by the BIA, not including

tribal land which has been reserved for

administrative purposes.

Grant/granting means the process of

the BIA or the Indian landowner

agreeing or consenting to a permit.

Grazing capacity means the maximum

sustainable number of livestock that

may be grazed on a defined area and

within a defined period, usually

expressed in an Animal Unit Month

(AUM).

Grazing rental payment means the

total of the grazing rental rate multiplied

by the number of AUMs or acres in the

permit.

Grazing rental rate means the amount

you must pay for an AUM or acre based

on the fair annual rental.

I/You means the person to whom

these regulations directly apply.

Immediate family means the spouse,

brothers, sisters, lineal ancestors, lineal

descendants, or members of the

household of an individual Indian

landowner.

Indian agricultural land means Indian

land, including farmland and rangeland,

excluding Indian forest land, that is

used for production of agricultural

products, and Indian lands occupied by

industries that support the agricultural

community, regardless of whether a

formal inspection and land

classification has been conducted.

Indian land means any tract in which

any interest in the surface estate is

owned by a tribe or individual Indian in

trust or restricted status.

Indian landowner means a tribe or

individual Indian who owns an interest

in Indian land in trust or restricted

status.

Individually-owned Indian land

means any tract, or interest therein, in

which the surface estate is owned by an

individual Indian in trust or restricted

status.

Interest means, when used with

respect to Indian land, an ownership

right to the surface estate of Indian land

that is unlimited or uncertain in

duration, including a life estate.

Life estate means an interest in Indian

land which is limited in duration to the

life of the permittor holding the interest,

or the life of some other person.

Majority interest means the ownership

interest(s) that are greater than 50

percent of the trust or restricted

ownership interest(s) in a tract of Indian

land.

Minor means an individual who is

less than 18 years of age.

Mortgage means a mortgage, deed of

trust or other instrument which pledges

a permittee’s permit (leasehold) interest

as security for a debt or other obligation

owed by the permittee to a lender or

other mortgagee.

Non compos mentis means a person

who has been legally determined by a

court of competent jurisdiction to be of

unsound mind or incapable of

transacting or conducting business and

managing one’s own affairs.

On-and-off grazing permit means a

written agreement with a permittee for

additional grazing capacity for other

rangeland not covered by the permit.

Permit means a written agreement

between Indian landowners and a

permittee, whereby the permittee is

granted a revocable privilege to use

Indian land or Government land, for a

specified purpose.

Permittee means an a person or entity

who has acquired a legal right of

possession to Indian land by a permit

for grazing purposes under this part.

Range unit means rangelands

consolidated to form a unit of land for

the management and administration of

grazing under a permit. A range unit

may consist of a combination of tribal,

individually-owned Indian, and/or

government land.

Rangeland means Indian land,

excluding Indian forest land, on which

native vegetation is predominantly

grasses, grass-like plants, half-shrubs or

shrubs suitable for grazing or browsing

use, and includes lands re-vegetated

naturally or artificially to provide a

forage cover that is managed as native

vegetation.

Restricted land or restricted status

means land the title to which is held by

an individual Indian or a tribe and

which can only be alienated or

encumbered by the owner with the

approval of the Secretary because of

limitations contained in the conveyance

instrument pursuant to federal law.

Subpermit means a written

agreement, whereby the permittee grants

to an individual or entity a right to

possession (i.e., pasturing

authorization), no greater than that held

by the permittee under the permit.

Surety means one who guarantees the

performance of another.

Sustained yield means the yield of

agricultural products that a unit of land

can produce continuously at a given

level of use.

Trespass means any unauthorized

occupancy, use of, or action on Indian

lands.

Tribal land means the surface estate

of land or any interest therein held by

the United States in trust for a tribe,

band, community, group or pueblo of

Indians, and land that is held by a tribe,

band, community, group or pueblo of

Indians, subject to federal restrictions

against alienation or encumbrance, and

includes such land reserved for BIA

administrative purposes when it is not

immediately needed for such purposes.

The term also includes lands held by

the United States in trust for an Indian

corporation chartered under section 17

of the Act of June 18, 1934 (48 Stat. 984;

25 U.S.C. 476).

Tribal law means the body of nonfederal law that governs lands and

7130 Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations

activities under the jurisdiction of a

tribe, including ordinances or other

enactments by the tribe, tribal court

rulings, and tribal common law.

Trust land means any tract, or interest

therein, that the United States holds in

trust status for the benefit of a tribe or

individual Indian.

Undivided interest means a fractional

share in the surface estate of Indian

land, where the surface estate is owned

in common with other Indian

landowners or fee owners.

Us/We/Our means the BIA and any

tribe acting on behalf of the BIA under

166.1 of this part.

Uniform Standards of Professional

Appraisal Practices (USPAP) means the

standards promulgated by the Appraisal

Standards Board of the Appraisal

Foundation to establish requirements

and procedures for professional real

property appraisal practice.

Written notice means a written letter

mailed by way of United States mail,

certified return receipt requested,

postage prepaid, or hand-delivered

letter.

Subpart B—Tribal Policies and Laws

Pertaining to Permits

§ 166.100 What special tribal policies will

we apply to permitting on Indian

agricultural lands?

(a) When specifically authorized by

an appropriate tribal resolution

establishing a general policy for

permitting of Indian agricultural lands,

the BIA will:

(1) Waive the general prohibition

against Indian operator preferences in

permits advertised for bid under

§ 166.221 of this part, by allowing

prospective Indian operators to match

the highest responsible bid (unless the

tribal law or leasing policy specifies

some other manner in which the

preference must be afforded);

(2) Waive or modify the requirement

that a permittee post a surety or

performance bond;

(3) Provide for posting of other

collateral or security in lieu of surety or

other bonds; and

(4) Approve permits of tribally-owned

agricultural lands at rates determined by

the tribal governing body.

(b) When specifically authorized by

an appropriate tribal resolution

establishing a general policy for

permitting of Indian agricultural lands,

and subject to paragraph (c) of this

section, the BIA may:

(1) Waive or modify any general

notice requirement of federal law; and

(2) Grant or approve a permit on

‘‘highly fractionated undivided heirship

lands’’ as defined by tribal law.

(c) The BIA may take the action

specified in paragraph (b) of this section

only if:

(1) The tribe defines by resolution

what constitutes ‘‘highly fractionated

undivided heirship lands’’;

(2) The tribe adopts an alternative

plan for notifying individual Indian

landowners; and

(3) The BIA’s action is necessary to

prevent waste, reduce idle land acreage

and ensure income.

§ 166.101 May individual Indian

landowners exempt their land from certain

tribal policies for permitting on Indian

agricultural lands?

(a) The individual Indian landowners

of Indian land may exempt their land

from our application of a tribal policy

referred to under § 166.100 of this part

if:

(1) The Indian landowners have at

least a 50% interest in such fractionated

tract; and

(2) The Indian landowners submit a

written objection to the BIA of all or any

part of such tribal policies to the

permitting of such parcel of land.

(b) Upon verification of the written

objection we will notify the tribe of the

Indian landowners’ exemption from the

specific tribal policy.

(c) The procedures described in

paragraphs (a) and (b) of this section

will also apply to withdrawing an

approved exemption.

§ 166.102 Do tribal laws apply to permits?

Tribal laws will apply to permits of

Indian land under the jurisdiction of the

tribe enacting such laws, unless those

tribal laws are inconsistent with

applicable federal law.

§ 166.103 How will tribal laws be enforced

on Indian agricultural land?

(a) Unless prohibited by federal law,

we will recognize and comply with

tribal laws regulating activities on

Indian agricultural land, including tribal

laws relating to land use, environmental

protection, and historic or cultural

preservation.

(b) While the tribe is primarily

responsible for enforcing tribal laws

pertaining to Indian agricultural land,

we will:

(1) Assist in the enforcement of tribal

laws;

(2) Provide notice of tribal laws to

persons or entities undertaking

activities on Indian agricultural land,

under § 166.104(b) of this part; and

(3) Require appropriate federal

officials to appear in tribal forums when

requested by the tribe, so long as such

an appearance would not:

(i) Be inconsistent with the

restrictions on employee testimony set

forth at 43 CFR Part 2, Subpart E;

(ii) Constitute a waiver of the

sovereign immunity of the United

States; or

(iii) Authorize or result in a review of

our actions by a tribal court.

(c) Where the regulations in this

subpart are inconsistent with a tribal

law, but such regulations cannot be

superseded or modified by the tribal law

under § 166.2 of this part, we may waive

the regulations under part 1 of this title,

so long as the waiver does not violate a

federal statute or judicial decision or

conflict with our general trust

responsibility under federal law.

§ 166.104 What notifications are required

that tribal laws apply to permits on Indian

agricultural lands?

(a) Tribes must notify us of the

content and effective dates of new tribal

laws.

(b) We will then notify affected Indian

landowners and any persons or entities

undertaking activities on Indian

agricultural lands of the superseding or

modifying effect of the tribal law. We

will:

(1) Provide individual written notice;

or

(2) Post public notice. This notice will

be posted at the tribal community

building, U.S. Post Office, and/or

published in the local newspaper

nearest to the Indian lands where

activities are occurring.

Subpart C—Permit Requirements

General Requirements

§ 166.200 When is a permit needed to

authorize possession of Indian land for

grazing purposes?

(a) Unless otherwise provided for in

this part, any person or legal entity,

including an independent legal entity

owned and operated by a tribe, must

obtain a permit under these regulations

before taking possession of Indian land

for grazing purposes.

(b) An Indian landowner who owns

100% of the trust or restricted interests

in a tract may take possession of that

Indian land without a permit or any

other prior authorization from us.

(c) If an Indian landowner does not

own 100 percent (%) of his or her

Indian land and wants to use the Indian

land for grazing purposes, a permit must

be granted by the majority interest of the

fractionated tract.

Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations 7131

§ 166.201 Must parents or guardians of

Indian minors who own Indian land obtain

a permit before using land for grazing

purposes?

Parents or guardians need not obtain

a permit for Indian lands owned by their

minor Indian children if:

(a) Those minor children own 100

percent (%) of the land; and

(b) The minor children directly

benefit from the use of the land. We may

require the user to provide evidence of

the direct benefits to the minor children.

When one of the minor children

becomes an adult, the permit will have

to be obtained from the majority

interest.

§ 166.202 May an emancipated minor grant

a permit?

Yes. An emancipated minor may grant

a permit.

§ 166.203 When can the Indian landowners

grant a permit?

(a) Tribes grant permits of tribal land,

including any tribally-owned undivided

interest(s) in a fractionated tract. A

permit granted by the tribe must be

approved by us, unless the permit is

authorized by a charter approved by us

under 25 U.S.C. § 477, or unless our

approval is not required under other

applicable federal law. In order to

permit tribal land in which the

beneficial interest has been assigned to

another party, the assignee and the tribe

must both grant the permit, subject to

our approval.

(b) Individual Indian landowners may

grant a permit of their land, including

their undivided interest in a

fractionated tract, subject to our

approval. Except as otherwise provided

in this part, these Indian landowners

may include the owner of a life estate

holding 100 percent (%) interest in their

land.

(c) The owners of a majority interest

in the Indian ownership of a

fractionated tract may grant a permit,

subject to our approval, without giving

prior notice to the minority Indian

landowners as long as the minority

interest owners receive fair annual

rental.

§ 166.204 Who may represent an individual

Indian landowner in granting a permit?

The following individuals or entities

may represent an individual Indian

landowner in granting a permit:

(a) An adult with custody acting on

behalf of their minor children;

(b) A guardian, conservator, or other

fiduciary appointed by a court of

competent jurisdiction to act on behalf

of an individual Indian landowner;

(c) An adult or legal entity who has

been given a written power of attorney

that:

(1) Meets all of the formal

requirements of any applicable tribal or

state law;

(2) Identifies the attorney-in-fact and

the land to be permitted; and

(3) Describes the scope of the power

granted and any limits thereon.

§ 166.205 When can the BIA grant a permit

on behalf of Indian landowners?

(a) We may grant a permit on behalf

of:

(1) An individual who is adjudicated

to be non compos mentis by a court of

competent jurisdiction;

(2) An orphaned minor;

(3) An Indian landowner who has

granted us written authority to permit

his or her land;

(4) The undetermined heirs and

devisees of a deceased Indian

landowner;

(5) An Indian landowner whose

whereabouts are unknown to us after a

reasonable attempt is made to locate the

Indian landowner;

(6) Indian landowners, where:

(i) We have provided written notice of

our intent to grant a permit on their

behalf, but the Indian landowners are

unable to agree upon a permit during a

three-month negotiation period

immediately following such notice, or

any other notice period established by a

tribe under § 166.100(c)(2) of this part;

and

(ii) The land is not being used by an

individual Indian landowner under

§ 166.200 of this part.

(7) The individual Indian owners of

fractionated Indian land, when

necessary to protect the interests of the

individual Indian landowners.

§ 166.206 What requirements apply to a

permit on a fractionated tract?

We may grant a permit on behalf of

all Indian landowners of a fractionated

tract as long as the owners receive fair

annual rental. Before granting such a

permit, we may offer a preference right

to any Indian landowner who:

(a) Is in possession of the entire tract;

(b) Submits a written offer to permit

the land, subject to any required or

negotiated terms and conditions, prior

to our granting a permit to another

party; and

(c) Provides any supporting

documents needed to demonstrate the

ability to perform all of the obligations

under the proposed permit.

§ 166.207 What provisions will be

contained in a permit?

A permit, at a minimum, must

include:

(a) Authorized user(s);

(b) Conservation plan requirements;

(c) Prohibition against creating a

nuisance, any illegal activity, and

negligent use or waste or resources;

(d) Numbers and types of livestock

allowed;

(e) Season(s) of use;

(f) Grazing rental payment, payment

schedule, and late payment interest and

penalties;

(g) Administrative fees;

(h) Tribal fees, if applicable;

(i) Payment method;

(j) Range unit number or name;

(k) Animal identification

requirements;

(l) A description (preferably a legal

description) of the permitted area;

(m) Term of permit (including

beginning and ending dates of the term

allowed, as well as any option to renew,

extend or terminate);

(n) Conditions for making

improvements, if any;

(o) A right of entry by the BIA for

purposes of inspection or enforcement

purposes;

(p) A provision concerning the

applicability of tribal jurisdiction;

(q) A provision stating how trespass

proceeds are to be distributed; and

(r) A provision for the permittee to

indemnify the United States and the

Indian landowners against all liabilities

or costs relating to the use, handling,

treatment, removal, storage,

transportation, or disposal of hazardous

materials or the release or discharge of

any hazardous material from the

permitted premises that occur during

the permit term, regardless of fault.

§ 166.208 How long is a permit term?

(a) The duration must be reasonable

given the purpose of the permit and the

level of investment required by the

permittee to place the property into

productive use.

(b) On behalf of the undetermined

heirs of an individual Indian decedent

owning 100 percent (%) interest in the

land, we will grant or approve permits

for a maximum term of two years.

(c) Permits granted for agricultural

purposes will not usually exceed ten

years. A term longer than ten years, but

not to exceed 25 years unless authorized

by other federal law, may be authorized

when a longer term is determined by us

to be in the best interest of the Indian

landowners and when such permit

requires substantial investment in the

development of the lands by the

permittee.

(d) A tribe may determine the

duration of permits composed entirely

of its tribal land or in combination with

government land, subject to the same

7132 Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations

limitations provided in paragraph (d) of

this section.

(e) A permit will specify the

beginning and ending dates of the term

allowed, as well as any option to renew,

extend, or terminate.

(f) Permits granted by us for

protection of the Indian land will be for

no more than two years.

§ 166.209 Must a permit be recorded?

A permit must be recorded in our

Land Titles and Records Office which

has jurisdiction over the land. We will

record the permit immediately

following our approval under this

subpart.

§ 166.210 When is a decision by the BIA

regarding a permit effective?

Our decision to approve a permit will

be effective immediately,

notwithstanding any appeal which may

be filed under Part 2 of this title. Copies

of the approved permit will be provided

to the permitee and made available to

the Indian landowners upon request.

§ 166.211 When are permits effective?

Unless otherwise provided in the

permit, a permit will be effective on the

date on which the permit is approved by

us. A permit may be made effective on

some past or future date, by agreement,

but such a permit may not be granted or

approved more than one year prior to

the date on which the permit term is to

commence.

§ 166.212 When may a permittee take

possession of permitted Indian land?

The permittee may take possession of

permitted Indian land on the date

specified in the permit as the beginning

date of the term, but not before we

approve the permit.

§ 166.213 Must I comply with any

standards of conduct if I am granted a

permit?

Yes. Permittees are expected to:

(a) Conduct grazing operations in

accordance with the principles of

sustained yield management,

agricultural resource management

planning, sound conservation practices,

and other community goals as expressed

in tribal laws, agricultural resource

management plans, and similar sources.

(b) Comply with all applicable laws,

ordinances, rules, regulations, and other

legal requirements. You must also pay

all applicable penalties that may be

assessed for non-compliance.

(c) Fulfill all financial obligations of

your permit owed to the Indian

landowners and the United States.

(d) Conduct only those activities

authorized by the permit.

§ 166.214 Will the BIA notify the permittee

of any change in land title status?

Yes. We will notify the permittee if a

fee patent is issued or if restrictions are

removed. After we notify the permittee

our obligation under § 166.228 of this

part ceases.

Obtaining A Permit

§ 166.215 How can I find Indian land

available for grazing?

You may contact a local BIA office or

tribal office to determine what Indian

land may be available for grazing

permits.

§ 166.216 Who is responsible for

permitting Indian land?

The Indian landowner is primarily

responsible for granting permits on their

Indian land, with the assistance and

approval of the BIA, except where

otherwise provided by law. You may

contact the local BIA or tribal office for

assistance in obtaining a permit for

grazing purposes on Indian land.

§ 166.217 In what manner may a permit on

Indian land be granted?

(a) A tribe may grant a permit on

tribal land through tribal allocation,

negotiation, or advertisement in

accordance with § 166.203 of this part.

We must approve all permits of tribal

land in order for the permit to be valid,

except where otherwise provided by

law.

(b) Individual Indian landowners may

grant a permit on their Indian land

through negotiation or advertisement in

accordance with § 166.203 of this part.

We must approve all permits of

Individual Indian land in order for the

permit to be valid.

(c) We will grant permits through

negotiation or advertisement for range

units containing, in whole or part,

individually-owned Indian land and

range units that consist of, or in

combination with individually-owned

Indian land, tribal or government land,

under § 166.205 of this part. We will

consult with tribes prior to granting

permits for range units that include

tribal land.

§ 166.218 How do I acquire a permit

through tribal allocation?

(a) A tribe may allocate grazing

privileges on range units containing

trust or restricted land which is entirely

tribally-owned or which contains only

tribal and government land under the

control of the tribe.

(b) A tribe may allocate grazing

privileges to its members and to triballyauthorized entities without competitive

bidding on tribal and tribally-controlled

government land.

(c) We will implement the tribe’s

allocation procedure by authorizing the

grazing privileges on individuallyowned Indian land and government

land, subject to the rental rate

provisions in § 166.400(b) and (c) of this

part.

(d) A tribe may prescribe the

eligibility requirements for allocations

60 days before granting a new permit or

before an existing permit expires.

(e) 120 days before the expiration of

existing permits, we will notify the tribe

of the 60-day period during which the

tribe may prescribe eligibility

requirements.

(f) We will prescribe the eligibility

requirements after the expiration of the

60-day period in the event satisfactory

action is not taken by the tribe.

(g) Grazing rental rates for grazing

privileges allocated from an existing

permit, in whole or in part, must equal

or exceed the rates paid by the

preceding permittee(s). Tribal members

will pay grazing rental rates established

by the tribe on tribal lands.

§ 166.219 How do I acquire a permit

through negotiation?

(a) Permits may be negotiated and

granted by the Indian landowners with

the permittee of their choice. The BIA

may negotiate and grant permits on

behalf of Indian landowners pursuant to

§ 166.205 of this part.

(b) Upon the conclusion of

negotiations with the Indian landowners

or their representatives, and the

satisfaction of any applicable

conditions, you may submit an executed

permit and any required supporting

documents to us for appropriate action.

Where a permit is in a form that has

previously been accepted or approved

by us, and all of the documents needed

to support the findings required by this

part have been received, we will decide

whether to approve the permit within

30 days of the date of our receipt of the

permit and supporting documents. If we

decide to approve or disapprove a

permit, we will notify the parties

immediately and advise them of their

right to appeal the decision under part

2 of this title.

(c) In negotiating a permit, the Indian

landowners may choose to include their

land in the permit in exchange for their

receipt of a share of the revenues or

profits generated by the permit. Under

such an arrangement, the permit may be

granted to a joint venture or other legal

entity owned, in part, by the Indian

landowners.

(d) Receipt of permit payments based

upon income received from the land

will not, of itself, make the Indian

Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations 7133

landowner a partner, joint venturer, or

associate of the permittees.

(e) We will assist prospective

permittees in contacting the Indian

landowners or their representatives, for

the purpose of negotiating a permit.

§ 166.220 What are the basic steps for

acquiring a permit through negotiation?

The basic steps for acquiring a permit

by negotiation are as follows:

(a) The BIA or the Indian landowner

will:

(1) Receive a request to permit from

an Indian landowner or the potential

permittee;

(2) Prepare the permit documents; and

(3) Grant the permit.

(b) A potential permittee will

complete the requirements for securing

a permit, (e.g., bond, insurance,

payment of administrative fee, etc.);

(c) We will:

(1) Review the permit for proper

documentation and compliance with all

applicable laws and regulations;

(2) Approve the permit after our

review;

(3) Send the approved permit to the

permittee and, upon request, to the

Indian landowner; and

(4) Record and maintain the approved

permit.

§ 166.221 How do I acquire an advertised

permit through competitive bidding?

(a) As part of the negotiation of a

permit, Indian landowners may

advertise their Indian land to identify

potential permittees with whom to

negotiate.

(b) When the BIA grants and approves

a permit on behalf of an individual

Indian landowner using an

advertisement for bids, we will:

(1) Prepare and distribute an

advertisement of lands available for

permit that identifies the terms and

conditions of the permit sale, including,

for agricultural permits, any preference

rights;

(2) Solicit sealed bids and conduct the

public permit sale;

(3) Determine and accept the highest

or best responsible bidder(s), which may

require further competitive bidding after

the bid opening; and

(4) Prepare permits for successful

bidders.

(c) After completion of the steps in

paragraph (b) of this section, the

successful bidder must complete and

submit the permit and satisfy all

applicable requirements, (e.g., bond,

insurance, payment of administrative

fee, etc.).

(d) After review of the permit

documentation for proper completion

and compliance with all applicable laws

and regulations, within 30 days we will:

(1) Grant and approve the permit on

behalf of Indian landowners where we

are authorized to do so by law;

(2) Distribute the approved permit to

the permittee(s) and, upon request, to

the Indian landowner(s); and

(3) Record and maintain the approved

permit.

§ 166.222 Are there standard permit

forms?

Yes. Standard permit forms, including

bid forms, permit forms, and permit

modification forms are available at our

agency offices.

Permit (Leasehold) Mortgage

§ 166.223 Can I use a permit as collateral

for a loan?

We may approve a permit containing

a provision that authorizes the permittee

to encumber the permit interest, known

as a leasehold mortgage, for the

development and improvement of the

permitted Indian land. We must

approve the leasehold mortgage that

encumbers the permit interest before it

can be effective. We will record the

approved leasehold mortgage

instrument.

§ 166.224 What factors does the BIA

consider when reviewing a leasehold

mortgage?

(a) We will approve the leasehold

mortgage if:

(1) All consents required in the permit

have been obtained from the Indian

landowners and any surety or guarantor;

(2) The mortgage covers only the

permit interest, and no unrelated

collateral belonging to the permittee;

(3) The financing being obtained will

be used only in connection with the

development or use of the permitted

premises, and the mortgage does not

secure any unrelated obligations owed

by the permittee to the mortgagee; and

(4) We find no compelling reason to

withhold our approval, in order to

protect the best interests of the Indian

landowner.

(b) In making the finding required by

paragraph (a)(4) of this section, we will

consider whether:

(1) The ability to perform the permit

obligations would be adversely affected

by the cumulative mortgage obligations;

(2) Any negotiated permit provisions

as to the allocation or control of

insurance or condemnation proceeds

would be modified;

(3) The remedies available to us or the

Indian landowners would be limited

(beyond the additional notice and cure

rights to be afforded to the mortgagee),

if the permittee defaults on the permit;

(4) Any rights of the Indian

landowners would be subordinated or

adversely affected in the event of a

foreclosure, assignment in lieu of

foreclosure, or issuance of a ‘‘new

permit’’ to the mortgagee.

(c) We will notify the Indian

landowners of our approval of the

leasehold mortgage.

§ 166.225 May a permittee voluntarily

assign a leasehold interest under an

approved encumbrance?

With our approval, under an

approved encumbrance, a permittee

voluntarily may assign the leasehold

interest to someone other than the

holder of a leasehold mortgage if the

assignee agrees in writing to be bound

by the terms of the permit. A permit

may provide the Indian landowners

with a right of first refusal on the

conveyance of the leasehold interest.

§ 166.226 May the holder of a leasehold

mortgage assign the leasehold interest after

a sale or foreclosure of an approved

encumbrance?

Yes. The holder of a leasehold

mortgage may assign a leasehold interest

obtained by a sale or foreclosure of an

approved encumbrance without our

approval if the assignee agrees in

writing to be bound by the terms of the

permit. A permit may provide the

Indian landowners with a right of first

refusal on the conveyance of the permit

interest (leasehold).

Modifying a Permit

§ 166.227 How can Indian land be removed

from an existing permit?

(a)We will remove Indian land from

the permit if:

(1)The trust status of the Indian land

terminates;

(2) The Indian landowners request

removal of their interest, with the

written approval of the majority interest

of the fractionated tract to be removed,

and we determine that the removal is

beneficial to such interests;

(3) A tribe allocates grazing privileges

for Indian land covered by your permit

under § 166.218 of this part;

(4) The permittee requests removal of

the Indian land, the owners of the

majority interest of the Indian land

provides written approval of the

removal of the Indian land, and we

determine that the removal is

warranted; or

(5) We determine that removal of the

Indian land is appropriate, with the

written approval of the owners of the

majority interest of the Indian land.

(b) We will revise the grazing capacity

to reflect the removal of Indian land and

show it on the permit.

7134 Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations

§ 166.228 How will the BIA provide notice

if Indian land is removed from an existing

permit?

If the reason for removal is:

(a) Termination of trust status. We

will notify the parties to the permit in

writing within 30 days. The removal

will be effective on the next anniversary

date of the permit.

(b) A request from Indian landowners

or the permittee, or our determination.

We will notify the parties to the permit

in writing within 30 days of such

request. The removal will be effective

immediately if all sureties, Indian

landowners, and permittee agree.

Otherwise, the removal will be effective

upon the next anniversary date of the

permit. If our written notice is within

180 days of the anniversary date of the

permit, the removal of Indian land will

be effective 180 days after the written

notice.

(c) Tribal allocation under § 166.218

of this part. We will notify the parties

to the permit in writing within 180 days

of such action. The removal of tribal

land will be effective on the next

anniversary date of the permit. If our

written notice is within 180 days of the

anniversary date of the permit, the

removal of Indian land will be effective

180 days after the written notice.

§ 166.229 Other than to remove land, how

can a permit be amended, assigned,

subpermitted, or mortgaged?

(a) We must approve an amendment,

assignment, subpermit, or mortgage

with the written consent of the parties

to the permit in the same manner that

the permit was approved, and the

consent of the sureties.

(b) Indian landowners may designate

in writing one or more of their coowners or representatives to negotiate

and/or agree to amendments on their

behalf.

(1) The designated landowner or

representative may:

(i) Negotiate or agree to amendments;

and

(ii) Consent to or approve other items

as necessary.

(2) The designated landowner or

representative may not:

(i) Negotiate or agree to amendments

that reduce the grazing rental payments

payable to the other Indian landowners;

or

(ii) Terminate the permit or modify

the term of the permit.

(c) We may approve a permit for tribal

land to individual members of a tribe

which contains a provision permitting

the assignment of the permit by the

permittee or the lender without our

approval when a lending institution or

an agency of the United States:

(1) Accepts the interest in the permit

(leasehold) as security for the loan; and

(2) Obtains the interest in the permit

(leasehold) through foreclosure or

otherwise.

(d) We will revise the grazing capacity

and modify the permit.

§ 166.230 When will a BIA decision to

approve an amendment, assignment,

subpermit, or mortgage under a permit be

effective?

Our decision to approve an

amendment, assignment, subpermit, or

mortgage under a permit will be

effective immediately, notwithstanding

any appeal which may be filed under

Part 2 of this title. Copies of approved

documents will be provided to the party

requesting approval, and made available

to the Indian landowners upon request.

§ 166.231 Must an amendment,

assignment, subpermit, or mortgage

approved under a permit be recorded?

An amendment, assignment,

subpermit, or mortgage approved under

a permit must be recorded in our Land

Titles and Records Office which has

jurisdiction over the Indian land. We

will record the document immediately

following our approval.

Subpart D—Land and Operations

Management

§ 166.300 How is Indian agricultural land

managed?

Tribes, individual Indian landowners,

and the BIA will manage Indian

agricultural land either directly or

through contracts, compacts,

cooperative agreements, or grants under

the Indian Self-Determination and

Education Assistance Act (Public Law

93–638, as amended).

§ 166.301 How is Indian land for grazing

purposes described?

Indian land for grazing purposes

should be described by legal description

(e.g., aliquot parts, metes and bounds) or

other acceptable description. Where

there are undivided interests owned in

fee status, the aggregate portion of trust

and restricted interests should be

identified in the description of the

permitted land.

§ 166.302 How is a range unit created?

We create a range unit after we

consult with the Indian landowners of

rangeland, by designating units of

compatible size, availability, and

location.

§ 166.303 Can more than one parcel of

Indian land be combined into one permit?

Yes. A permit may include more than

one parcel of Indian land. Permits may

include tribal land, individually-owned

Indian land, or government land, or any

combination thereof.

§ 166.304 Can there be more than one

permit for each range unit?

Yes. There can be more than one

permit for each range unit.

§ 166.305 When is grazing capacity

determined?

Before we grant, modify, or approve a

permit, in consultation with the Indian

landowners, we will establish the total

grazing capacity for each range unit

based on the summation of each parcel’s

productivity. We will also establish the

season(s) of use on Indian lands.

§ 166.306 Can the BIA adjust the grazing

capacity?

Yes. In consultation with the Indian

landowners or in the BIA’s discretion

based on good cause, we may adjust the

grazing capacity using the best

evaluation method(s) relevant to the

ecological region.

§ 166.307 Will the grazing capacity be

increased if I graze adjacent trust or nontrust rangelands not covered by the permit?

No. You will not receive an increase

in grazing capacity in the permit if you

graze trust or non-trust rangeland in

common with the permitted land.

Grazing capacity will be established

only for Indian land covered by your

permit.

§ 166.308 Can the number of animals and/

or season of use be modified on the

permitted land if I graze adjacent trust or

non-trust rangelands under an on-and-off

grazing permit?

Yes. The number of animals and/or

season of use may be modified on

permitted Indian land with an on-andoff grazing permit only when a

conservation plan includes the use of

adjacent trust or non-trust rangelands

not covered by the permit and when

that land is used in common with

permitted land.

§ 166.309 Who determines livestock class

and livestock ownership requirements on

permitted Indian land?

(a) Tribes determine the class of

livestock and livestock ownership

requirements for livestock that may be

grazed on range units composed entirely

of tribal land or which include

government land, subject to the grazing

capacity prescribed by us under

§ 166.305 of this part.

(b) For permits on range units

containing, in whole or part,

individually-owned Indian land, we

will adopt the tribal determination in

paragraph (a) of this section.

Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations 7135

§ 166.310 What must a permittee do to

protect livestock from exposure to disease?

In accordance with applicable law,

permittees must:

(a) Vaccinate livestock;

(b) Treat all livestock exposed to or

infected with contagious or infectious

diseases; and

(c) Restrict the movement of exposed

or infected livestock.

Management Plans and Environmental

Compliance

§ 166.311 Is an Indian agricultural

resource management plan required?

(a) Indian agricultural land under the

jurisdiction of a tribe must be managed

in accordance with the goals and

objectives in any agricultural resource

management plan developed by the

tribe, or by us in close consultation with

the tribe, under the AIARMA.

(b) The ten-year agricultural resource

management and monitoring plan must

be developed through public meetings

and completed within three years of the

initiation of the planning activity. Such

a plan must be developed through

public meetings, and be based on the

public meeting records and existing

survey documents, reports, and other

research from federal agencies, tribal

community colleges, and land grant

universities. When completed, the plan

must:

(1) Determine available agricultural

resources;

(2) Identify specific tribal agricultural

resource goals and objectives;

(3) Establish management objectives

for the resources;

(4) Define critical values of the tribe

and its members and provide identified

holistic management objectives; and

(5) Identify actions to be taken to

reach established objectives.

(c) Where the regulations in this

subpart are inconsistent with a tribe’s

agricultural resource management plan,

we may waive the regulations under

part 1 of this title, so long as the waiver

does not violate a federal statute or

judicial decision or conflict with our

general trust responsibility under

federal law.

§ 166.312 Is a conservation plan required?

A conservation plan must be

developed for each permit with the

permittee and approved by us prior to

the issuance of the permit. The

conservation plan must be consistent

with the tribe’s agricultural resource

management plan and must address the

permittee’s management objectives

regarding animal husbandry and

resource conservation. The conservation

plan must cover the entire permit period

and reviewed by us on an annual basis.

§ 166.313 Is environmental compliance

required?

Actions taken by the BIA under the

regulations in this part must comply

with the National Environmental Policy

Act of 1969 (42 U.S.C. 4321 et seq.),

applicable regulations of the Council on

Environmental Quality (40 CFR part

1500), and applicable tribal laws and

regulations.

Conservation Practices and

Improvements

§ 166.314 Can a permittee apply a

conservation practice on permitted Indian

land?

Yes. A permittee can apply a

conservation practice on permitted

Indian land as long as the permittee has

approval from the BIA and majority

interest and the conservation practice is

consistent with the conservation plan.

§ 166.315 Who is responsible for the

completion and maintenance of a

conservation practice if the permit expires

or is canceled before the completion of the

conservation practice?

Prior to undertaking a conservation

practice, the BIA, landowner, and

permittee will negotiate who will

complete and maintain a conservation

practice if the permit expires or is

canceled before the conservation

practice is completed. That conservation

practice agreement will be reflected in

the conservation plan and permit.

§ 166.316 Can a permittee construct

improvements on permitted Indian land?

Improvements may be constructed on

permitted Indian land if the permit

contains a provision allowing

improvements.

§ 166.317 What happens to improvements

constructed on Indian lands when the

permit has been terminated?

(a) If improvements are to be

constructed on Indian land, the permit

must contain a provision that

improvements will either:

(1) Remain on the land upon

termination of the permit, in a condition

that is in compliance with applicable

codes, to become the property of the

Indian landowner; or

(2) Be removed and the land restored

within a time period specified in the

permit. The land must be restored as

close as possible to the original

condition prior to construction of such

improvements. At the request of the

permittee we may, at our discretion,

grant an extension of time for the

removal of improvements and

restoration of the land for circumstances

beyond the control of the permittee.

(b) If the permittee fails to remove

improvements within the time allowed

in the permit, the permittee may forfeit

the right to remove the improvements

and the improvements may become the

property of the Indian landowner or at

the request of the Indian landowner, we

will apply the bond for the removal of

the improvement and restoration of the

land.

Subpart E—Grazing Rental Rates,

Payments, and Late Payment

Collections

Rental Rate Determination and

Adjustment

§ 166.400 Who establishes grazing rental

rates?

(a) For tribal lands, a tribe may

establish a grazing rental rate that is less

or more than the grazing rental rate

established by us. We will assist a tribe

to establish a grazing rental rate by

providing the tribe with available

information concerning the value of

grazing on tribal lands.

(b) We will establish the grazing

rental rate by determining the fair

annual rental for:

(1) Individually-owned Indian lands;

and

(2) Tribes that have not established a

rate under paragraph (a) of this section.

(c) Indian landowners may give us

written authority to grant grazing

privileges on their individually-owned

Indian land at a grazing rental rate that

is:

(1) Above the grazing rental rate set by

us; or

(2) Below the grazing rental rate set by

us, subject to our approval, when the

permittee is a member of the Indian

landowner’s immediate family as

defined in this part.

§ 166.401 How does the BIA establish

grazing rental rates?

An appraisal can be used to determine

the rental value of real property. The

development and reporting of the

valuation will be completed in

accordance with the Uniform Standards

of Professional Appraisal Practices

(USPAP). If an appraisal is not desired,

competitive bids, negotiations,

advertisements, or any other method

can be used in conjunction with a

market study, rent survey, or feasibility

analysis developed in accordance with

the USPAP.

§ 166.402 Why must the BIA determine the

fair annual rental of Indian land?

The BIA must determine the fair

annual rental of Indian land to:

(a) Assist the Indian landowner in

negotiating a permit with potential

permittees; and

7136 Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations

(b) Enable us to determine whether a

permit is in the best interests of the

Indian landowner.

§ 166.403 Will the BIA ever grant or

approve a permit at less than fair annual

rental?

(a) We will grant a permit for grazing

on individually-owned Indian land at

less than fair annual rental if, after

competitive bidding of the permit, we

determine that such action would be in

the best interests of the individual

Indian landowners.

(b) We may approve a permit for

grazing on individually-owned Indian

land at less than fair annual rental if:

(1) The permit is for the Indian

landowner’s immediate family or coowner; or

(2) We determine it is in the best

interest of the Indian landowners.

(c) We may approve a permit for

grazing on tribal land at less than fair

annual rental if the tribe sets the rate.

§ 166.404 Whose grazing rental rate will be

applicable for a permit on tribal land?

The following grazing rental rate

schedule will apply for tribal land:

If you are * * * And if * * * Then you will pay * * *

(a) Grazing livestock on tribal land .................... The tribe established the grazing rental rate ... The rate set by the tribe.

(b) Grazing livestock on tribal land .................... No tribal grazing rental rate has been established.The rate set by the BIA.

(c) The successful bidder for use of any of

these specific parcels of Indian land.

Your rental rate bid, but not less than the minimum bid rate advertised.

§ 166.405 Whose grazing rental rate will be applicable for a permit on individually-owned Indian land?

The following grazing rental rate schedule will apply for individually-owned Indian land:

If you are * * * Then you will pay * * *

(a) Grazing livestock on Individually-owned Indian land.The rate set by the BIA or by the individual Indian landowner and approved by us.

(b) The successful bidder for use of any of

these specific parcels of Indian land.

Your rental rate bid, but not less than the minimum bid rate advertised, unless the permit is

granted at less than fair annual rental under § 166.403.

(c) The recipient of an allocation from a bid unit The bid rate or the appraised rate, whichever is higher.

§ 166.406 Whose grazing rental rate will be applicable for a permit on government land?

The following grazing rental rate schedule will apply for government land:

If you are * * * And if * * * Then you will pay * * *

(a) Grazing livestock on government land ......... The tribe has control over the land or the tribe

has authority to set the rate.

The rate set by the tribe.

(b) Grazing livestock on government land ......... Government controls all use of the land .......... The rate set by the BIA.

§ 166.407 If a range unit consists of tribal

and individually-owned Indian lands, what

is the grazing rental rate?

The grazing rental rate for tribal land

will be the rate set by the tribe. The

grazing rental rate for individuallyowned Indian land will be the grazing

rental rate set by us.

§ 166.408 Is the grazing rental rate

established by the BIA adjusted

periodically?

Yes. To ensure that Indian

landowners are receiving the fair annual

return, we may adjust the grazing rental

rate established by the BIA, based upon

an appropriate valuation method, taking

into account the value of improvements

made under the permit, unless the

permit provides otherwise, following

the Uniform Standards of Professional

Appraisal Practice.

(a) We will:

(1) Review the grazing rental rate

prior to each anniversary date or when

specified by the permit.

(2) Provide you with written notice of

any adjustment of the grazing rental rate

60 days prior to each anniversary date.

(3) Allow the adjusted grazing rental

rate to be less than the fair annual rental

if we determine that such a rate is in the

best interest of the Indian landowner.

(b) If adjusted, the grazing rental rate

will become effective on the next

anniversary date of the permit.

(c) These adjustments will be

retroactive, if they are not made at the

time specified in the permit.

(d) For permits granted by tribes, we

will consult with the granting tribe to

determine whether an adjustment of the

grazing rental payment should be made.

The permit must be modified to

document the granting tribe’s waiver of

the adjustment. A tribe may grant a

permit without providing for a rental

adjustment, if the tribe establishes such

a policy under § 166.100(a)(4) of this

part and negotiates such a permit.

Rental Payments

§ 166.409 How is my grazing rental

payment determined?

The grazing rental payment is the

total of the grazing rental rate multiplied

by the number of AUMs or acres

covered by the permit.

§ 166.410 When are grazing rental

payments due?

The initial grazing rental payment is

due and payable as specified in the

permit or 15 days after the BIA approves

the permit, whichever is later.

Subsequent payments are due as

specified in the permit.

§ 166.411 Will a permittee be notified when

a grazing rental payment is due?

Each permit states the schedule of

rental payments agreed to by the parties.

We will issue an invoice to the

permittee 30 to 60 days prior to the

rental payment due date.

§ 166.412 What if the permittee does not

receive an invoice that a grazing rental

payment is due?

If we fail to send an invoice or if we

send an invoice and the permittee does

not receive it, the permittee is still

responsible for making timely payment

of all amounts due under the permit.

§ 166.413 To whom are grazing rental

payments made?

(a) A permit must specify whether

grazing rental payments will be made

Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations 7137

directly to the Indian landowners or to

us on behalf of the Indian landowners.

If the permit provides for payment to be

made directly to the Indian landowners,

the permit must also require that the

permittee retain specific documentation

evidencing proof of payment, such as

canceled checks, cash receipt vouchers,

or copies of money orders or cashier’s

checks, consistent with the provisions

of §§ 166.1000 and 166.1001 of this part.

(b) Grazing rental payments made

directly to the Indian landowners must

be made to the parties specified in the

permit, unless the permittee receives a

notice of a change of ownership. Unless

otherwise provided in the permit,

grazing rental payments may not be

made payable directly to anyone other

than the Indian landowners.

(c) A permit which provides for

grazing rental payments to be made

directly to the Indian landowners must

also provide for such payments to be

suspended and rent thereafter paid to

us, rather than directly than to the

Indian landowners, if:

(1) An Indian landowner dies;

(2) An Indian landowner requests that

payment be made to us;

(3) An Indian landowner is found by

us to be in need of assistance in

managing his/her financial affairs; or

(4) We determine, in our discretion

and after consultation with the Indian

landowner(s), that direct payment

should be discontinued.

§ 166.414 What forms of grazing rental

payments are acceptable?

(a) When grazing rental payments are

made directly to the Indian landowners,

the form of payment must be acceptable

to the Indian landowners.

(b) Payments made to us may be

delivered in person or by mail. We will

not accept cash, foreign currency, or

third-party checks. We will accept:

(1) Personal or business checks drawn

on the account of the permittee;

(2) Money orders;

(3) Cashier’s checks;

(4) Certified checks; or

(5) Electronic funds transfer

payments.

§ 166.415 What will the BIA do if the

permittee fails to make a direct payment to

an Indian landowner?

Within five business days of the

Indian landowner’s notification to us

that a payment has not been received,

we will contact the permittee either in

writing or by telephone requesting that

the permittee provide documentation

(e.g., canceled check, cash receipt

voucher, copy of a money order or

cashier’s check) showing that payment

has been made to the Indian landowner.

If the permitee fails to provide such

documentation, we will follow the

procedures identified in § 166.419 of

this part to collect the money on behalf

of the Indian landowner or to cancel the

permit.

§ 166.416 May a permittee make a grazing

rental payment in advance of the due date?

Rent may be paid no more than 30

days in advance, unless otherwise

specified in the permit.

§ 166.417 May an individual Indian

landowner modify the terms of the permit

on a fractionated tract for advance grazing

rental payment?

No. An individual Indian landowner

of a fractionated tract may not modify a

permit to allow a grazing rental payment

in advance of the due date specified in

the initial approved permit.

§ 166.418 When is a grazing rental

payment late?

A grazing rental payment is late if it

is not received on or before the due

date.

Late Rental Payment Collections

§ 166.419 What will the BIA do if grazing

rental payments are not made in the time

and manner required by the permit?

(a) A permitee’s failure to pay grazing

rental payments in the time and manner

required by a permit will be a violation

of the permit, and a notice of violation

will be issued under § 166.703 of this

part. If the permit requires that grazing

rental payments be made to us, we will

send the permittee and its sureties a

notice of violation within five business

days of the date on which the grazing

rental payment was due. If the permit

provides for payment directly to the

Indian landowner(s), we will send the

permittee and its sureties a notice of

violation within five business days of

the date on which we receive actual

notice of non-payment from the Indian

landowner(s).

(b) If a permittee fails to provide

adequate proof of payment or cure the

violation within the requisite time

period described in § 166.704 of this

part, and the amount due is not in

dispute, we may immediately take

action to recover the amount of the

unpaid rent and any associated interest

charges or late payment penalties. We

may also cancel the permit under

§ 166.705 of this part, or invoke any

other remedies available under the

permit or applicable law, including

collection on any available bond or

referral of the debt to the Department of

the Treasury for collection. An action to

recover any unpaid amounts will not be

conditioned on the prior cancellation of

the permit or any further notice to the

permittee, nor will such an action be

precluded by a prior cancellation.

(c) Partial payments may be accepted,

under special circumstances, by the

Indian landowners or us, but acceptance

will not operate as a waiver with respect

to any amounts remaining unpaid or

any other existing permit violations.

Unless otherwise provided in the

permit, overpayments may be credited

as an advance against future grazing

rental payments.

(d) If a personal or business check is

dishonored, and a grazing rental

payment is therefore not made by the

due date, the failure to make the

payment in a timely manner will be a

violation of the permit, and a written

notice of violation will be issued under

§ 166.703 of this part. Any payment

made to cure such a default, and any

future payments by the same permittee,

must be made by one of the alternative

payment methods listed in § 166.414(b)

of this part.

§ 166.420 Will any special fees be

assessed on delinquent grazing rental

payments due under a permit?

The following special fees will be

assessed if a grazing rental payment is

not paid in the time and manner

required, in addition to any interest or

late payment penalties which must be

paid to the Indian landowners under a

permit. The following special fees will

be assessed to cover administrative costs

incurred by the United States in the

collection of the debt:

The permittee

will pay * * * For * * *

(a) $50.00 ..... Administrative fee for checks

returned by the bank for insufficient funds.

(b) $15.00 ..... Administrative fee for the BIA

processing of each demand

letter.

(c) 18% of

balance

due.

Administrative fee charged by

the Department of Treasury

for collection.

§ 166.421 If a permit is canceled for nonpayment, does that extinguish the

permittee’s debt?

No. The permittee remains liable for

any delinquent payment. No future

permits will be issued until all

outstanding debts related to Indian

agricultural lands are paid.

Compensation to Indian Landowners

§ 166.422 What does the BIA do with

grazing rental payments received from

permittees?

Unless arrangements for direct

payment to the Indian landowners has

been provided, the rent will be

deposited to the appropriate account

7138 Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations

maintained by the Office of Trust Funds

Management in accordance with part

115 of this title.

§ 166.423 How do Indian landowners

receive grazing rental payments that the

BIA has received from permittees?

Funds will be paid to the Indian

landowners by the Office of Trust Funds

Management in accordance with 25 CFR

part 115.

§ 166.424 How will the BIA determine the

grazing rental payment amount to be

distributed to each Indian landowner?

Unless otherwise specified in the

permit, the grazing rental payment will

be distributed to each Indian landowner

according to the forage production that

each parcel of Indian land contributes to

the permit, annual rental rate of each

parcel, and the Indian landowner’s

interest in each parcel.

Subpart F—Administrative and Tribal

Fees

§ 166.500 Are there administrative fees for

a permit?

Yes. We will charge an administrative

fee before approving any permit,

subpermit, assignment, encumbrance,

modification, or other related document.

§ 166.501 How are annual administrative

fees determined?

(a) Except as provided in subsection

(b), we will charge a three percent (%)

administrative fee based on the annual

grazing rent.

(b) The minimum administrative fee

is $10.00 and the maximum

administrative fee is $500.00.

(c) If a tribe performs all or part of the

administrative duties for this part, the

tribe may establish, collect, and use

reasonable fees to cover its costs

associated with the performance of

administrative duties.

§ 166.502 Are administrative fees

refundable?

No. We will not refund administrative

fees.

§ 166.503 May the BIA waive

administrative fees?

Yes. We may waive the administrative

fee for a justifiable reason.

§ 166.504 Are there any other

administrative or tribal fees, taxes, or

assessments that must be paid?

Yes. The permittee may be required to

pay additional fees, taxes, and/or

assessments associated with the use of

the land as determined by us or by the

tribe. Failure to make such payments

will constitute a permit violation under

subpart H of this part.

Subpart G—Bonding and Insurance

Requirements

§ 166.600 Must a permittee provide a bond

for a permit?

Yes. A permittee, assignee or

subpermittee must provide a bond for

each permit interest acquired. Upon

request by an Indian landowner, we

may waive the bond requirement.

§ 166.601 How is the amount of the bond

determined?

(a) The amount of the bond for each

permit is based on the:

(1) Value of one year’s grazing rental

payment;

(2) Value of any improvements to be

constructed;

(3) Cost of performance of any

additional obligations; and

(4) Cost of performance of restoration

and reclamation.

(b) Tribal policy made applicable by

§ 166.100 of this part may establish or

waive specific bond requirements for

permits.

§ 166.602 What form of bonds will the BIA

accept?

(a) We will only accept bonds in the

following forms:

(1) Cash;

(2) Negotiable Treasury securities

that:

(i) Have a market value equal to the

bond amount; and

(ii) Are accompanied by a statement

granting full authority to the BIA to sell

such securities in case of a violation of

the terms of the permit.

(3) Certificates of deposit that indicate

on their face that Secretarial approval is

required prior to redemption by any

party;

(4) Irrevocable letters of credit (LOC)

issued by federally-insured financial

institutions authorized to do business in

the United States. LOC’s must:

(i) Contain a clause that grants the

BIA authority to demand immediate

payment if the permittee defaults or

fails to replace the LOC within 30

calendar days prior to its expiration

date;

(ii) Be payable to the ‘‘Department of

the Interior, BIA’’;

(iii) Be irrevocable during its term and

have an initial expiration date of not

less than one year following the date we

receive it; and

(iv) Be automatically renewable for a

period of not less than one year, unless

the issuing financial institution

provides the BIA with written notice at

least 90 calendar days before the letter

of credit’s expiration date that it will not

be renewed;

(5) Surety bond; or

(6) Any other form of highly liquid,

non-volatile security subsequently

approved by us that is easily convertible

to cash by us and for which our

approval is required prior to redemption

by any party.

(b) Indian landowners may negotiate

a permit term that specifies the use of

any of the bond forms described in

paragraph (a) of this section.

(c) A tribe may accept and hold any

form of bond described in paragraph (a)

of this section, to secure performance

under a permit of tribal land.

§ 166.603 If cash is submitted as a bond,

how is it administered?

If cash is submitted as a bond, we will

establish an account in the name of the

permittee and retain it.

§ 166.604 Is interest paid on a cash

performance bond?

No. Interest will not be paid on a cash

performance bond.

§ 166.605 Are cash performance bonds

refunded?

If the cash performance bond has not

been forfeited for cause, the amount

deposited will be refunded to the

depositor at the end of the permit

period.

§ 166.606 What happens to a bond if a

violation occurs?

We may apply the bond to remedy the

violation, in which case we will require

the permittee to submit a replacement

bond of an appropriate amount.

§ 166.607 Is insurance required for a

permit?

When we determine it to be in the

best interest of the Indian landowners,

we will require a permittee to provide

insurance. If insurance is required, it

must:

(a) Be provided in an amount

sufficient to:

(1) Protect any improvements on the

permit premises;

(2) Cover losses such as personal

injury or death; and

(3) Protect the interest of the Indian

landowner.

(b) Identify the tribe, individual

Indian landowners, and United States as

insured parties.

§ 166.608 What types of insurance may be

required?

We may require liability or casualty

insurance (such as for fire, hazard, or

flood), depending upon the activity

conducted under the permit.

Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations 7139

Subpart H—Permit Violations

§ 166.700 What permit violations are

addressed by this subpart?

This subpart addresses violations of

permit provisions other than trespass.

Trespass is addressed under subpart I of

this part.

§ 166.701 How will the BIA determine

whether the activities of a permittee under

a permit are in compliance with the terms

of the permit?

Unless the permit provides otherwise,

we may enter the range unit at any

reasonable time, without prior notice, to

protect the interests of the Indian

landowners and ensure that the

permittee is in compliance with the

operating requirements of the permit.

§ 166.702 Can a permit provide for

negotiated remedies in the event of a permit

violation?

(a) A permit of tribal land may

provide the tribe with certain negotiated

remedies in the event of a permit

violation, including the power to

terminate the permit. A permit of

individually-owned Indian land may

provide the individual Indian

landowners with similar remedies, so

long as the permit also specifies the

manner in which those remedies may be

exercised by or on behalf of the Indian

landowners. Any notice of violation

must be provided by written notice.

(b) The negotiated remedies described

in paragraph (a) of this section will

apply in addition to the cancellation

remedy available to us under

§ 166.705(c) of this subpart. If the permit

specifically authorizes us to exercise

any negotiated remedies on behalf of the

Indian landowners, the exercise of such

remedies may substitute for

cancellation.

(c) A permit may provide for permit

disputes to be resolved in tribal court or

any other court of competent

jurisdiction, or through arbitration or

some other alternative dispute

resolution method. We may not be

bound by decisions made in such

forums, but we will defer to any ongoing

proceedings, as appropriate, in deciding

whether to exercise any of the remedies

available to us under § 166.705 of this

subpart.

§ 166.703 What happens if a permit

violation occurs?

(a) If an Indian landowner notifies us

that a specific permit violation has

occurred, we will initiate an appropriate

investigation within five business days

of that notification.

(b) If we determine that a permit

violation has occurred based on facts

known to us, we will provide written

notice to the permittee and the sureties

of the violation within five business

days.

§ 166.704 What will a written notice of a

permit violation contain?

The written notice of a permit

violation will provide the permittee

with ten days from the receipt of the

written notice to:

(a) Cure the permit violation and

notify us that the violation is cured.

(b) Explain why we should not cancel

the permit; or

(c) Request in writing additional time

to complete corrective actions. If

additional time is granted, we may

require that certain corrective actions be

taken immediately.

§ 166.705 What will the BIA do if a permit

violation is not cured within the required

time period?

(a) If the permittee does not cure a

violation within the required time

period, we will consult with the Indian

landowners, as appropriate, and

determine whether:

(1) The permit should be canceled by

us under paragraph (c) of this section

and §§ 166.706 through 166.707 of this

subpart;

(2) We should invoke any other

remedies available to us under the

permit, including collecting on any

available bond;

(3) The Indian landowners wish to

invoke any remedies available to them

under the permit; or

(4) The permittee should be granted

additional time in which to cure the

violation.

(b) If we decide to grant a permittee

additional time in which to cure a

violation, the permittee must proceed

diligently to complete the necessary

corrective actions within a reasonable or

specified time period from the date on

which the extension is granted.

(c) If we decide to cancel the permit,

we will send the permittee and its

sureties a written notice of cancellation

within five business days of that

decision. We will also provide actual or

constructive notice of a cancellation

decision to the Indian landowners, as

appropriate. The written notice of

cancellation will:

(1) Explain the grounds for

cancellation;

(2) Notify the permittee of the amount

of any unpaid rent, interest charges, or

late payment penalties due under the

permit;

(3) Notify the permittee of its right to

appeal under Part 2 of this chapter, as

modified by § 166.706 of this subpart,

including the amount of any appeal

bond that must be posted with an

appeal of the cancellation decision; and

(4) Order the permittee to vacate the

property within 30 days of the date of

receipt of the written notice of

cancellation, if an appeal is not filed by

that time.

§ 166.706 Will the BIA’s regulations

concerning appeal bonds apply to

cancellation decisions involving permits?

(a) The appeal bond provisions in

§ 2.5 of part 2 of this chapter will not

apply to appeals from permit

cancellation decisions made under

§ 166.705 of this subpart. Instead, when

we decide to cancel a permit, we may

require the permittee to post an appeal

bond with an appeal of the cancellation

decision. The requirement to post an

appeal bond will apply in addition to all

of the other requirements in part 2 of

this chapter.

(b) An appeal bond should be set in

an amount necessary to protect the

Indian landowners against financial

losses that will likely result from the

delay caused by an appeal. Appeal bond

requirements will not be separately

appealable, but may be contested during

the appeal of the permit cancellation

decision.

§ 166.707 When will a cancellation of a

permit be effective?

A cancellation decision involving a

permit will not be effective for 30 days

after the permittee receives a written

notice of cancellation from us. The

cancellation decision will remain

ineffective if the permittee files an

appeal under § 166.706 of this subpart

and part 2 of this chapter, unless the

decision is made immediately effective

under part 2. While a cancellation

decision is ineffective, the permittee

must continue to pay rent and comply

with the other terms of the permit. If an

appeal is not filed in accordance with

§ 166.706 of this subpart and part 2 of

this chapter, the cancellation decision

will be effective on the 31st day after the

permittee receives the written notice of

cancellation from us.

§ 166.708 Can the BIA take emergency

action if the rangeland is threatened with

immediate, significant, and irreparable

harm?

Yes. If a permittee or any other party

causes or threatens to cause immediate,

significant and irreparable harm to the

Indian land during the term of a permit,

we will take appropriate emergency

action. Emergency action may include

trespass proceedings under subpart I of

this part, or judicial action seeking

immediate cessation of the activity

resulting in or threatening the harm.

Reasonable efforts will be made to

notify the Indian landowners, either

7140 Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations

before or after the emergency action is

taken.

§ 166.709 What will the BIA do if a

permittee holds over after the expiration or

cancellation of a permit?

If a permittee remains in possession of

Indian land after the expiration or

cancellation of a permit, we will treat

the unauthorized use as a trespass.

Unless we have reason to believe that

the permittee is engaged in negotiations

with the Indian landowners to obtain a

new permit, we will take action to

recover possession of the Indian land on

behalf of the Indian landowners, and

pursue any additional remedies

available under applicable law,

including the assessment of civil

penalties and costs under subpart I of

this part.

Subpart I—Trespass

§ 166.800 What is trespass?

Under this part, trespass is any

unauthorized occupancy, use of, or

action on Indian agricultural lands.

These provisions also apply to Indian

agricultural land managed under an

agricultural lease or permit under part

162 of this title.

§ 166.801 What is the BIA’s trespass

policy?

We will:

(a) Investigate accidental, willful,

and/or incidental trespass on Indian

agricultural land;

(b) Respond to alleged trespass in a

prompt, efficient manner;

(c) Assess trespass penalties for the

value of products used or removed, cost

of damage to the Indian agricultural

land, and enforcement costs incurred as

a consequence of the trespass.

(d) Ensure that damage to Indian

agricultural lands resulting from

trespass is rehabilitated and stabilized at

the expense of the trespasser.

§ 166.802 Who can enforce this subpart?

(a) The BIA enforces the provisions of

this subpart. If the tribe adopts the

provisions of this subpart, the tribe will

have concurrent jurisdiction to enforce

this subpart. Additionally, if the tribe so

requests, we will defer to tribal

prosecution of trespass on Indian

agricultural lands.

(b) Nothing in this subpart shall be

construed to diminish the sovereign

authority of Indian tribes with respect to

trespass.

Notification

§ 166.803 How are trespassers notified of

a trespass determination?

(a) Unless otherwise provided under

tribal law, when we have reason to

believe that a trespass on Indian

agricultural land has occurred, within

five business days, we or the authorized

tribal representative will provide

written notice to the alleged trespasser,

the possessor of trespass property, any

known lien holder, and beneficial

Indian landowner, as appropriate. The

written notice will include the

following:

(1) The basis for the trespass

determination;

(2) A legal description of where the

trespass occurred;

(3) A verification of ownership of

unauthorized property (e.g., brands in

the State Brand Book for cases of

livestock trespass, if applicable);

(4) Corrective actions that must be

taken;

(5) Time frames for taking the

corrective actions;

(6) Potential consequences and

penalties for failure to take corrective

action; and

(7) A statement that unauthorized

livestock or other property may not be

removed or disposed of unless

authorized by us.

(b) If we determine that the alleged

trespasser or possessor of trespass

property is unknown or refuses delivery

of the written notice, a public trespass

notice will be posted at the tribal

community building, U.S. Post Office,

and published in the local newspaper

nearest to the Indian agricultural lands

where the trespass is occurring.

(c) Trespass notices under this

subpart are not subject to appeal under

25 CFR part 2.

§ 166.804 What can I do if I receive a

trespass notice?

If you receive a trespass notice, you

will within the time frame specified in

the notice:

(a) Comply with the ordered

corrective actions; or

(b) Contact us in writing to explain

why the trespass notice is in error. You

may contact us by telephone but any

explanation of trespass you wish to

provide must be in writing. If we

determine that we issued the trespass

notice in error, we will withdraw the

notice.

§ 166.805 How long will a written trespass

notice remain in effect?

A written trespass notice will remain

in effect for the same conduct identified

in that written notice for a period of one

year from the date of receipt of the

written notice by the trespasser.

Actions

§ 166.806 What actions does the BIA take

against trespassers?

If the trespasser fails to take the

corrective action specified by us, we

may take one or more of the following

actions, as appropriate:

(a) Seize, impound, sell or dispose of

unauthorized livestock or other property

involved in the trespass. We may keep

such property we seize for use as

evidence.

(b) Assess penalties, damages, and

costs, under § 166.812 of this subpart.

§ 166.807 When will we impound

unauthorized livestock or other property?

We will impound unauthorized

livestock or other property under the

following conditions:

(a) Where there is imminent danger of

severe injury to growing or harvestable

crop or destruction of the range forage.

(b) When the known owner or the

owner’s representative of the

unauthorized livestock or other property

refuses to accept delivery of a written

notice of trespass and the unauthorized

livestock or other property are not

removed within the period prescribed in

the written notice.

(c) Any time after five days of

providing notice of impoundment if you

failed to correct the trespass.

§ 166.808 How are trespassers notified if

their unauthorized livestock or other

property are to be impounded?

(a) If the trespass is not corrected in

the time specified in the initial trespass

notice, we will send written notice of

our intent to impound unauthorized

livestock or other property to the

unauthorized livestock or property

owner or representative, and any known

lien holder of the unauthorized

livestock or other property.

(b) If we determine that the owner of

the unauthorized livestock or other

property or the owner’s representative is

unknown or refuses delivery of the

written notice, we will post a public

notice of intent to impound at the tribal

community building, U.S. Post Office,

and published in the local newspaper

nearest to the Indian agricultural lands

where the trespass is occurring.

(c) After we have given notice as

described above, we will impound

unauthorized livestock or other property

without any further notice.

§ 166.809 What happens after my

unauthorized livestock or other property are

impounded?

Following the impoundment of

unauthorized livestock or other

property, we will provide notice that we

will sell the impounded property as

follows:

Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations 7141

(a) We will provide written notice of

the sale to the owner, the owner’s

representative, and any known lien

holder. The written notice must include

the procedure by which the impounded

property may be redeemed prior to the

sale.

(b) We will provide public notice of

sale of impounded property by posting

at the tribal community building, U.S.

Post Office, and publishing in the local

newspaper nearest to the Indian

agricultural lands where the trespass is

occurring. The public notice will

include a description of the impounded

property, and the date, time, and place

of the public sale. The sale date must be

at least five days after the publication

and posting of notice.

§ 166.810 How do I redeem my impounded

livestock or other property?

You may redeem impounded

livestock or other property by

submitting proof of ownership and

paying all penalties, damages, and costs

under § 166.812 of this subpart and

completing all corrective actions

identified by us under § 166.804 of this

subpart.

§ 166.811 How will the sale of impounded

livestock or other property be conducted?

(a) Unless the owner or known lien

holder of the impounded livestock or

other property redeems the property

prior to the time set by the sale, by

submitting proof of ownership and

settling all obligations under § 166.804

and § 166.812 of this subpart, the

property will be sold by public sale to

the highest bidder.

(b) If a satisfactory bid is not received,

the livestock or property may be reoffered for sale, returned to the owner,

condemned and destroyed, or otherwise

disposed of.

(c) We will give the purchaser a bill

of sale or other written receipt

evidencing the sale.

Penalties, Damages, and Costs

§ 166.812 What are the penalties,

damages, and costs payable by trespassers

on Indian agricultural land?

Trespassers on Indian agricultural

land must pay the following penalties

and costs:

(a) Collection of the value of the

products illegally used or removed plus

a penalty of double their values;

(b) Costs associated with any damage

to Indian agricultural land and/or

property;

(c) The costs associated with

enforcement of the regulations,

including field examination and survey,

damage appraisal, investigation

assistance and reports, witness

expenses, demand letters, court costs,

and attorney fees;

(d) Expenses incurred in gathering,

impounding, caring for, and disposal of

livestock in cases which necessitate

impoundment under § 166.807 of this

subpart; and

(e) All other penalties authorized by

law.

§ 166.813 How will the BIA determine the

value of forage or crops consumed or

destroyed?

We will determine the value of forage

or crops consumed or destroyed based

upon the average rate received per

month for comparable property or

grazing privileges, or the estimated

commercial value or replacement costs

of such products or property.

§ 166.814 How will the BIA determine the

value of the products or property illegally

used or removed?

We will determine the value of the

products or property illegally used or

removed based upon a valuation of

similar products or property.

§ 166.815 How will the BIA determine the

amount of damages to Indian agricultural

land?

We will determine the damages by

considering the costs of rehabilitation

and revegetation, loss of future revenue,

loss of profits, loss of productivity, loss

of market value, damage to other

resources, and other factors.

§ 166.816 How will the BIA determine the

costs associated with enforcement of the

trespass?

Costs of enforcement may include

detection and all actions taken by us

through prosecution and collection of

damages. This includes field

examination and survey, damage

appraisal, investigation assistance and

report preparation, witness expenses,

demand letters, court costs, attorney

fees, and other costs.

§ 166.817 What happens if I do not pay the

assessed penalties, damages and costs?

Unless otherwise provided by

applicable tribal law:

(a) We will refuse to issue you a

permit for use, development, or

occupancy of Indian agricultural lands;

and

(b) We will forward your case for

appropriate legal action.

§ 166.818 How are the proceeds from

trespass distributed?

Unless otherwise provided by tribal

law:

(a) We will treat any amounts

recovered under § 166.812 of this

subpart as proceeds from the sale of

agricultural property from the Indian

agricultural land upon which the

trespass occurred.

(b) Proceeds recovered under

§ 166.812 of this subpart may be

distributed to:

(1) Repair damages of the Indian

agricultural land and property;

(2) Reimburse the affected parties,

including the permittee for loss due to

the trespass, as negotiated and provided

in the permit; and

(3) Reimburse for costs associated

with the enforcement of this subpart.

(c) If any money is left over after the

distribution of the proceeds described in

paragraph (b) of this section, we will

return it to the trespasser or, where we

cannot identify the owner of the

impounded property within 180 days,

we will deposit the net proceeds of the

sale into the accounts of the landowners

where the trespass occurred.

§ 166.819 What happens if the BIA does

not collect enough money to satisfy the

penalty?

We will send written notice to the

trespasser demanding immediate

settlement and advising the trespasser

that unless settlement is received within

five business days from the date of

receipt, we will forward the case for

appropriate legal action. We may send

a copy of the notice to the Indian

landowner, permittee, and any known

lien holders.

Subpart J—Agriculture Education,

Education Assistance, Recruitment,

and Training

§ 166.900 How are the Indian agriculture

education programs operated?

(a) The purpose of the Indian

agriculture education programs is to

recruit and develop promising Indian

and Alaska Natives who are enrolled in

secondary schools, tribal or Alaska

Native community colleges, and other

post-secondary schools for employment

as professional resource managers and

other agriculture-related professionals

by approved organizations.

(b) We will operate the student

educational employment program as

part of our Indian agriculture education

programs in accordance with the

provisions of 5 CFR 213.3202(a) and (b).

(c) We will establish an education

committee to coordinate and carry out

the agriculture education assistance

programs and to select participants for

all agriculture education assistance

programs. The committee will include

at least one Indian professional educator

in the field of natural resources or

agriculture, a personnel specialist, a

representative of the Intertribal

Agriculture Council, and a natural

resources or agriculture professional

7142 Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations

from the BIA and a representative from

American Indian Higher Education

Consortium. The committee’s duties

will include the writing of a manual for

the Indian and Alaska Native

Agriculture Education and Assistance

Programs.

(d) We will monitor and evaluate the

agriculture education assistance

programs to ensure that there are

adequate Indian and Alaska Native

natural resources and agriculture-related

professionals to manage Indian natural

resources and agriculture programs by

or for tribes and Alaska Native

Corporations. We will identify the

number of participants in the intern,

student educational employment

program, scholarship, and outreach

programs; the number of participants

who completed the requirements to

become a natural resources or

agriculture-related professional; and the

number of participants completing

advanced degree requirements.

§ 166.901 How will the BIA select an

agriculture intern?

(a) The purpose of the agriculture

intern program is to ensure the future

participation of trained, professional

Indians and Alaska Natives in the

management of Indian and Alaska

Native agricultural land. In keeping

with this purpose, we will work with

tribes and Alaska Natives:

(1) To obtain the maximum degree of

participation from Indians and Alaska

Natives in the agriculture intern

program;

(2) To encourage agriculture interns to

complete an undergraduate degree

program in natural resources or

agriculture-related field; and

(3) To create an opportunity for the

advancement of natural resources and

agriculture-related technicians to

professional resource management

positions with the BIA, other federal

agencies providing an agriculture

service to their respective tribe, a tribe,

or tribal agriculture enterprise.

(b) Subject to restrictions imposed by

agency budgets, we will establish and

maintain in the BIA at least 20 positions

for the agriculture intern program. All

Indians and Alaska Natives who satisfy

the qualification criteria may compete

for positions.

(c) Applicants for intern positions

must meet the following criteria:

(1) Be eligible for Indian preference as

defined in 25 CFR part 5;

(2) Possess a high school diploma or

its recognized equivalent;

(3) Be able to successfully complete

the intern program within a three-year

period; and

(4) Possess a letter of acceptance to an

accredited post-secondary school or

demonstrate that one will be sent within

90 days.

(d) We will advertise vacancies for

agriculture intern positions semiannually, no later than the first day of

April and October, to accommodate

entry into school.

(e) In selecting agriculture interns, we

will seek to identify candidates who:

(1) Have the greatest potential for

success in the program;

(2) Will take the shortest time period

to complete the intern program; and

(3) Provide the letter of acceptance

required by paragraph (c)(4) of this

section.

(f) Agriculture interns must:

(1) Maintain full-time status in an

agriculture-related curriculum at an

accredited post-secondary school;

(2) Maintain good academic standing;

(3) Enter into an obligated service

agreement to serve as a professional

resource manager or agriculture-related

professional with an approved

organization for one year in exchange

for each year in the program; and

(4) Report for service with the

approved organization during any break

in attendance at school of more than

three weeks.

(g) The education committee will

evaluate annually the performance of

the agriculture intern program

participants against requirements to

ensure that they are satisfactorily

progressing toward completion of

program requirements.

(h) We will pay all costs for tuition,

books, fees, and living expenses

incurred by an agriculture intern while

attending an accredited post-secondary

school.

§ 166.902 How can I become an agriculture

educational employment student?

(a) To be considered for selection,

applicants for the student educational

employment program must:

(1) Meet the eligibility requirements

in 5 CFR part 308; and

(2) Be accepted into or enrolled in a

course of study at an accredited postsecondary institution which grants

degrees in natural resources or

agriculture-related curricula.

(b) Student educational employment

steering committees established at the

field level will select program

participants based on eligibility

requirements without regard to

applicants’ financial needs.

(c) A recipient of assistance under the

student educational employment

program will be required to enter into

an obligated service agreement to serve

as a natural resources or agriculturerelated professional with an approved

organization for one year in exchange

for each year in the program.

(d) We will pay all costs of tuition,

books, fees, and transportation to and

from the job site to school, for an Indian

or Alaska Native student who is selected

for the cooperative education program.

§ 166.903 How can I get an agriculture

scholarship?

(a) We may grant agriculture

scholarships to Indians and Alaska

Natives enrolled as full-time students in

accredited post-secondary and graduate

programs of study in natural resources

and agriculture-related curricula.

(b) The education committee

established in § 166.900(c) of this

subpart will select program participants

based on eligibility requirements

stipulated in paragraphs (e) through (g)

of this section without regard to

applicants’ financial needs or past

scholastic achievements.

(c) Recipients of scholarships must

reapply annually to continue to receive

funding beyond the initial award

period. Students who have received

scholarships in past years, are in good

academic standing, and have been

recommended for continuation by their

academic institution will be given

priority over new applicants for

scholarship assistance.

(d) The amount of scholarship funds

an individual is awarded each year will

be contingent upon the availability of

funds appropriated each fiscal year and

is subject to yearly change.

(e) Preparatory scholarships may be

available for a maximum of three

academic years of general,

undergraduate course work leading to a

degree in natural resources or

agriculture-related curricula and may be

awarded to individuals who:

(1) Possess a high school diploma or

its recognized equivalent; and

(2) Are enrolled and in good academic

standing at an acceptable postsecondary school.

(f) Undergraduate scholarships are

available for a maximum of three

academic years and may be awarded to

individuals who:

(1) Have completed a minimum of 55

semester hours toward a bachelor’s

degree in a natural resources or

agriculture-related curriculum; and

(2) Have been accepted into a natural

resource or agriculture-related degreegranting program at an accredited

college or university.

(g) Graduate scholarships are

available for a maximum of five

academic years for individuals selected

into the graduate program of an

accredited college or university that

Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations 7143

grants advanced degrees in natural

resources or agriculture-related fields.

(h) A recipient of assistance under the

scholarship program must enter into an

obligated service agreement to serve as

a natural resources or agriculture-related

professional with the BIA, other federal

agency providing assistance to their

respective tribe, a tribe, tribal

agriculture enterprise, or an ANCSA

Corporation for one year for each year

in the program.

(i) We will pay all scholarships

approved by the education committee

established in § 166.900 of this subpart

for which funding is available.

§ 166.904 What is agriculture education

outreach?

(a) We will establish and maintain an

agriculture education outreach program

for Indian and Alaska Native youth that

will:

(1) Encourage students to acquire

academic skills needed to succeed in

post-secondary mathematics and

science courses;

(2) Promote agriculture career

awareness;

(3) Involve students in projects and

activities oriented to agriculture related

professions early so students realize the

need to complete required pre-college

courses; and

(4) Integrate Indian and Alaska Native

agriculture program activities into the

education of Indian and Alaska Native

students.

(b) We will develop and carry out the

program in consultation with

appropriate community education

organizations, tribes, ANCSA

Corporations, Alaska Native

organizations, and other federal

agencies providing agriculture services

to Indians.

(c) The education committee

established under § 166.900(c) of this

subpart will coordinate and implement

the program nationally.

§ 166.905 Who can get assistance for

postgraduate studies?

(a) The purpose of the postgraduate

studies program is to enhance the

professional and technical knowledge of

Indian and Alaska Native natural

resource and agriculture-related

professionals working for an approved

organization so that the best possible

service is provided to Indian and Alaska

Natives.

(b) We may pay the cost of tuition,

fees, books, and salary of Alaska Natives

and Indians who are employed by an

approved organization and who wish to

pursue advanced levels of education in

natural resource or agriculture-related

fields.

(c) The goal of the advanced study

program is to encourage participants to

obtain additional academic credentials

such as a degree or diploma in a natural

resources or agriculture-related field.

Requirements of the postgraduate study

program are:

(1) The duration of course work

cannot be less than one semester or

more than three years; and

(2) Students in the postgraduate

studies program must meet performance

standards as required by the graduate

school offering the study program.

(d) Program applicants must submit

application packages to the education

committee. At a minimum, such

packages must contain a resume and an

endorsement signed by the applicant’s

supervisor clearly stating the need for

and benefits of the desired training.

(e) The education committee must use

the following criteria to select

participants:

(1) Need for the expertise sought at

both the local and national levels;

(2) Expected benefits, both locally and

nationally; and

(3) Years of experience and the

service record of the employee.

(f) Program participants will enter

into an obligated service agreement to

serve as a natural resources or

agriculture-related professional with an

approved organization for one year for

each year in the program. We may

reduce the obligated service

requirement if the employee receives

supplemental funding such as research

grants, scholarships, or graduate

stipends and, as a result, reduces the

need for financial assistance under this

part. If the obligated service agreement

is breached, we will collect the amount

owed us in accordance with § 166.910 of

this subpart.

§ 166.906 What can happen if we recruit

you after graduation?

(a) The purpose of the post graduation

recruitment program is to recruit Indian

and Alaska Native natural resource and

trained agriculture technicians into the

agriculture programs of approved

organizations.

(b) We may assume outstanding

student loans from established lending

institutions of Indian and Alaska Native

natural resources and agriculture

technicians who have successfully

completed a post-secondary natural

resources or agriculture-related

curriculum at an accredited institution.

(c) Indian and Alaska Natives

receiving benefits under this program

will enter into an obligated service

agreement in accordance with § 166.901

of this subpart. Obligated service

required under this program will be one

year for every $5,000 of student loan

debt repaid.

(d) If the obligated service agreement

is breached, we will collect student

loan(s) in accordance with § 166.910 of

this subpart.

§ 166.907 Who can be an intern?

(a) Natural resources or agriculture

personnel working for an approved

organization may apply for an

internship within agriculture-related

programs of agencies of the Department

of the Interior or other federal agencies

providing an agriculture service to their

respective reservations.

(b) Natural resources or agriculturerelated personnel from other

Department of the Interior agencies may

apply through proper channels for

‘‘internships’’ within the BIA’s

agriculture programs. With the consent

of a tribe or Alaska Native organization,

the BIA can arrange for an

Intergovernmental Personnel Act

assignment in tribal or Alaska Native

agriculture programs.

(c) Natural resources and agriculture

personnel from agencies not within the

Department of the Interior may apply,

through proper agency channels and

pursuant to an interagency agreement,

for an ‘‘internship’’ within the BIA and,

with the consent of a tribe or Alaska

Native organization, we can facilitate an

Intergovernmental Personnel Act

assignment in a tribe, tribal agriculture

enterprise, or Alaska Native

Corporation.

(d) Natural resources or agriculture

personnel from a tribe, tribal agriculture

enterprise, or Alaska Native Corporation

may apply, through proper channels

and pursuant to a cooperative

agreement, for an internship within

another tribe, tribal forest enterprise, or

ANCSA Corporation agriculture

program.

(e) The employing agency of

participating federal employees will

provide for the continuation of salary

and benefits.

(f) The host agency for participating

tribal, tribal agriculture enterprise, or

Alaska Native Corporation agriculture

employees will provide for salaries and

benefits.

(g) A bonus pay incentive, up to 25

percent (%) of the intern’s base salary,

may be provided to intergovernmental

interns at the conclusion of the

internship period. Bonus pay incentives

will be at the discretion of and funded

by the host organization and must be

conditioned upon the host agency’s

documentation of the intern’s superior

performance, in accordance with the

agency’s performance standards, during

the internship period.

7144 Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations

§ 166.908 Who can participate in

continuing education and training?

(a) The purpose of continuing

education and training is to establish a

program to provide for the ongoing

education and training of natural

resources and agriculture personnel

employed by approved organizations.

This program will emphasize

continuing education and training in

three areas:

(1) Orientation training including

tribal-federal relations and

responsibilities;

(2) Technical agriculture education;

and

(3) Developmental training in

agriculture-based enterprises and

marketing.

(b) We will maintain an orientation

program to increase awareness and

understanding of Indian culture and its

effect on natural resources management

and agriculture practices and on federal

laws that effect natural resources

management and agriculture operations

and administration in the Indian

agriculture program.

(c) We will maintain a continuing

technical natural resources and

agriculture education program to assist

natural resources managers and

agriculture-related professionals to

perform natural resources and

agriculture management on Indian land.

(d) We will maintain an agriculture

land-based enterprise and marketing

training program to assist with the

development and use of Indian and

Alaska Native agriculture resources.

§ 166.909 What are my obligations to the

BIA after I participate in an agriculture

education program?

(a) Individuals completing agriculture

education programs with an obligated

service requirement may be offered full

time permanent employment with an

approved organization to fulfill their

obligated service within 90 days of the

date all program education requirements

have been completed. If employment is

not offered within the 90-day period,

the student will be relieved of obligated

service requirements. Not less than 30

days before the start of employment, the

employer must notify the participant of

the work assignment, its location and

the date work must begin. If the

employer is other than the BIA, the

employer must also notify us.

(b) Employment time that can be

credited toward obligated service

requirement will begin the day after all

program education requirements have

been completed, with the exception of

the agriculture intern program which

includes the special provisions outlined

in § 166.901(f)(4) of this subpart. The

minimum service obligation period will

be one year of full time employment.

(c) The employer has the right to

designate the location of employment

for fulfilling the service obligation.

(d) A participant in any of the

agriculture education programs with an

obligated service requirement may,

within 30 days of completing all

program education requirements,

request a deferment of obligated service

to pursue postgraduate or post-doctoral

studies. In such cases, we will issue a

decision within 30 days of receipt of the

request for deferral. We may grant such

a request; however, deferments granted

in no way waive or otherwise affect

obligated service requirements.

(e) A participant in any of the

agriculture education programs with an

obligated service requirement may,

within 30 days of completing all

program education requirements,

request a waiver of obligated service

based on personal or family hardship.

We may grant a full or partial waiver or

deny the request for wavier. In such

cases, we will issue a decision within 30

days of receiving the request for waiver.

§ 166.910 What happens if I do not fulfill

my obligation to the BIA?

(a) Any individual who accepts

financial support under agriculture

education programs with an obligated

service requirement, and who does not

accept employment or unreasonably

terminates employment must repay us

in accordance with the following table:

If you are... Then the costs that you must repay are... And then the costs that you do not need to repay are...

(1) Agriculture intern ............ Living allowance, tuition, books, and fees received

while occupying position plus interest.

Salary paid during school breaks or when recipient was

employed by an approved organization.

(2) Cooperative education ... Tuition, books, and fees plus interest.

(3) Scholarship ..................... Costs of scholarship plus interest.

(4)Post graduation recruitment.All student loans assumed by us under the program

plus interest.

(5) Postgraduate studies ...... Living allowance, tuition, books, and fees received

while in the program plus interest.

Salary paid during school breaks or when recipient was

employed by an approved organization.

(b) For agriculture education

programs with an obligated service

requirement, we will adjust the amount

required for repayment by crediting

toward the final amount of debt any

obligated service performed before

breach of contract.

Subpart K—Records

§ 166.1000 Who owns the records

associated with this part?

(a) Records are the property of the

United States if they:

(1) Are made or received by a tribe or

tribal organization in the conduct of a

federal trust function under 25 U.S.C.

§ 450f et seq., including the operation of

a trust program; and

(2) Evidence the organization,

functions, policies, decisions,

procedures, operations, or other

activities undertaken in the performance

of a federal trust function under this

part.

(b) Records not covered by paragraph

(a) of this section that are made or

received by a tribe or tribal organization

in the conduct of business with the

Department of the Interior under this

part are the property of the tribe.

§ 166.1001 How must a records associated

with this part be preserved?

(a) Any organization, including tribes

and tribal organizations, that have

records identified in § 166.1000(a) of

this part must preserve the records in

accordance with approved Departmental

records retention procedures under the

Federal Records Act, 44 U.S.C. Chapters

29, 31 and 33. These records and related

records management practices and

safeguards required under the Federal

Records Act are subject to inspection by

the Secretary and the Archivist of the

United States.

(b) A tribe or tribal organization

should preserve the records identified

in § 166.1000(b) of this part for the

period of time authorized by the

Archivist of the United States for similar

Department of the Interior records in

accordance with 44 U.S.C. Chapter 33.

If a tribe or tribal organization does not

preserve records associated with its

conduct of business with the

Department of the Interior under this

part, it may prevent the tribe or tribal

Federal Register / Vol. 66, No. 14 / Monday, January 22, 2001 / Rules and Regulations 7145

organization from being able to

adequately document essential

transactions or furnish information

necessary to protect its legal and

financial rights or those of persons

directly affected by its activities.

Dated: December 21, 2000.

Kevin Gover,

Assistant Secretary—Indian Affairs.

[FR Doc. 01–1419 Filed 1–19–01; 8:45 am]

BILLING CODE 4310–02–P