[Federal Register Volume 61, Number 111 (Friday, June 7, 1996)]
[Proposed Rules]
[Pages 29044-29047]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14061]



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DEPARTMENT OF THE INTERIOR
25 CFR Part 290

RIN: 1076-AD14


Tribal Revenue Allocation Plans

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Proposed rule.

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SUMMARY: The Bureau of Indian Affairs is proposing to establish 
regulations to implement Section 11(b)(3)(B) of the Indian Gaming 
Regulatory Act (IGRA), 25 U.S.C. 2701. This proposed rule establishes 
procedures for the submission, review and, approval of tribal revenue 
allocation plans for the distribution of net gaming revenues from 
tribal gaming activities.

DATES: Comments must be received on or before August 6, 1996.

ADDRESSES: Mail comments to George Skibine, Director, Indian Gaming 
Management Staff Office, Bureau of Indian Affairs, 1849 C Street, NW., 
MS 2070-MIB, Washington, DC 20240. Comments may be hand delivered to 
the same address from 9:00 a.m. to 4:00 p.m. Monday through Friday or 
sent by facsimile to 202-273-3153.

FOR FURTHER INFORMATION CONTACT: Nancy Pierskalla, Management Analyst, 
Indian Gaming Management Staff Office, at 202-219-4068.

SUPPLEMENTARY INFORMATION: The Indian Gaming Regulatory Act (IGRA), 25 
U.S.C. 2701 et seq., was signed into law on October 17, 1988. Pursuant 
to Section 11 (b)(3)(B), 25 U.S.C. 2710, of the IGRA, the Secretary of 
the Interior (Secretary) is charged with the review and approval of 
tribal revenue allocation plans relating to the distribution of net 
gaming revenues from a tribal gaming activity. These regulations 
establish a method for the submission, review and approval of tribal 
revenue allocation plans.
    The IGRA provides that net gaming revenues from Class II and Class 
III gaming may be distributed in the form of per capita payments to 
members of the Indian tribe provided the Indian tribe has prepared a 
Tribal Revenue Allocation Plan which is approved by the Secretary. On 
December 19, 1992 the Assistant Secretary--Indian Affairs (AS-IA) 
issued Guidelines to govern the review and approval of Tribal Revenue 
Allocation Plans. As outlined in the IGRA, the Guidelines require that 
the Indian tribe must dedicate a significant source of net gaming 
revenue for economic and governmental purposes, that the interests of 
minors and other legally incompetent persons entitled to receive per 
capita payments must be protected and preserved, and that per capita 
payments are subject to federal income taxes. The Assistant Secretary 
does not mandate the distribution of net gaming revenues to individual 
tribal members. However, it is essential that Indian tribes choosing to 
make per capita payments comply with the requirements of the IGRA.

Public Participation Statement

    Publication of the proposed rule by the Department of the Interior 
(Department) provides the public an opportunity to participate in the 
rulemaking process. Interested persons may submit written comments 
regarding the proposed rule to the location identified in the addresses 
section of this document.

Executive Order 12778

    The Department has certified to the Office of Management and Budget 
(OMB) that these proposed regulations meet the applicable standards 
provided in sections 2(a) and 2(b)(2) of Executive Order 12778.

Executive Order 12866

    This proposed rule is not a significant regulatory action under 
Executive Order 12866 and has been reviewed by the Office of Management 
and Budget.

Regulatory Flexibility Act

    This proposed rule will not have a significant economic impact on a 
substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.).

Executive Order 12630

    The Department has determined that this proposed rule does not have 
``significant takings'' implications. The proposed rule does not 
pertain to ``taking'' of private property interests, nor does it impact 
private property.

Executive Order 12612

    The Department has determined that this proposed rule does not have 
significant federalism effects because it pertains solely to Federal-
tribal relations and will not interfere with the roles, rights and 
responsibilities of states.

NEPA Statement

    The Department has determined that this proposed rule does not 
constitute a major Federal action significantly affecting the quality 
of the human environment and that no detailed statement is required 
pursuant to the National Environmental Policy Act of 1969.

Paperwork Reduction Act of 1995

    Sections 290.11, 290.18 and 290.27 contain information collection 
requirements. As required by the Paperwork Reduction Act of 1995 (44 
U.S.C. 3507(d)), the Department of the Interior has submitted a copy of 
these sections to the Office of Management and Budget (OMB) for its 
review.
    Collection of Information: Indian tribes may distribute net gaming 
revenues in the form of per capita payments provided the tribe has an 
approved Tribal Revenue Allocation Plan that has been submitted and 
reviewed in accordance with these regulations. The information to be 
collected includes: assurances to meet certain statutory requirements; 
a breakdown of the specific uses to which net gaming revenues will be 
allocated, eligibility requirements for participation, tax liability 
notification and the assurance of the protection and preservation of 
the per capita shares minors and legal incompetents. The information is 
needed to assure that net gaming revenues are used (1) to fund tribal 
government operations and programs, (2) to provide for the general 
welfare of the Indian tribe and its members, (3) to promote tribal 
economic development, (4) to donate to charitable organizations, and 
(5) to fund operations of local government agencies.
    All information is to be collected upon the submission by an Indian 
tribe of a tribal revenue allocation plan or any amendments thereto for 
approval. Annual reporting and recordkeeping burden for this collection 
of information is estimated to average 75-100 hours for each response 
for 225 respondents, including the time for reviewing instructions, 
searching existing data sources, gathering and maintaining the data 
needed and completing and reviewing the collection of information. 
Thus, the total annual reporting and recordkeeping burden for this 
collection is estimated to be 22,500 hours.

[[Page 29045]]

    Organizations and individuals desiring to submit comments on the 
information collection requirement should direct them to the Office of 
Information and Regulatory Affairs, OMB, Room 10202, New Executive 
Office Building, Washington, D.C. 20503; Attention: Desk Officer for 
the U.S. Department of the Interior.
    The Department considers comments by the public on this proposed 
collection of information in--
    Evaluating whether the proposed collection of information is 
necessary for the proper performance of the functions of the 
Department, including whether the information will have practical 
utility;
    Evaluating the accuracy of the Department's estimate of the burden 
of the proposed collection of information, including the validity of 
the methodology and assumptions used;
    Enhancing the quality, usefulness, and clarity of the information 
to be collected; and
    Minimizing the burden of the collection of information on those who 
are to respond, including through the use of appropriate automated, 
electronic, mechanical, or other collection techniques or other forms 
of information technology.
    OMB is required to make a decision concerning the collection of 
information contained in these proposed regulations between 30 and 60 
days after publication of this document in the Federal Register. 
Therefore, a comment to the OMB is best assured of having its full 
effect if OMB receives it within 30 days of publication. This does not 
affect the deadline for the public to comment to the Bureau of Indian 
Affairs on the proposed regulations.

Unfunded Mandates Act of 1995

    This rule imposes no unfunded mandates on any governmental or 
private entity and is in compliance with the provisions of the Unfunded 
Mandates Act of 1995.

Drafting Information

    The primary author of this document is Nancy Pierskalla, Management 
Analyst, Bureau of Indian Affairs, Department of the Interior.

List of Subjects in 25 CFR Part 290

    Indians--business and finance, Indians--gaming.

    For the reasons given in the preamble, Part 290 of Title 25, 
Chapter I of the Code of Federal Regulations is proposed to be added as 
set forth below.

PART 290--TRIBAL REVENUE ALLOCATION PLANS

Sec.
290.1  Purpose.
290.2   Definitions.
290.3  What will the Secretary approve?
290.4  What is a tribal revenue allocation plan?
290.5  Who must submit a tribal revenue allocation plan?
290.6  Must an Indian tribe have a tribal revenue allocation plan if 
it is not making per capita payments?
290.7  Do Indian tribes have to make per capita payments from net 
gaming revenues to tribal members?
290.8  How may an Indian tribe use net gaming revenues if it does 
not have an approved tribal revenue allocation plan?
290.9  Is an Indian tribe in violation of IGRA if it makes per 
capita payments to members without an approved tribal revenue 
allocation plan?
290.10  May an Indian tribe distribute per capita payments from net 
gaming revenues derived from either Class II or Class III gaming 
without a tribal revenue allocation plan?
290.11  What information must the tribal revenue allocation plan 
contain?
290.12  Under what conditions may an Indian tribe distribute per 
capita payments?
290.13  How must an Indian tribe divide or allocate per capita 
funds?
290.14  Who can share in a per capita payment?
290.15  How does an Indian tribe disburse the per capita shares of 
minors and legal incompetents?
290.16  Must the Indian tribe establish trust accounts with 
financial institutions for minors and legal incompetents?
290.17  Can the per capita payments of minors and legal incompetents 
be deposited into Bureau of Indian Affairs Individual Indian Monies 
(IIM) Accounts?
290.18  What documents must the Indian tribe include with the tribal 
revenue allocation plan?
290.19  Where should the Indian tribe submit the tribal revenue 
allocation plan?
290.20  What action must the Appropriate Bureau Official take?
290.21  How long will the review by the Appropriate Bureau Official 
take?
290.22  What action will the Appropriate Bureau Official take if the 
plan cannot be approved?
290.23  May an Indian tribe appeal the Appropriate Bureau Official's 
decision?
290.24  What happens if an Indian tribe makes per capita payments 
without an approved tribal revenue allocation plan?
290.25  How does the Indian tribe assure compliance with its tribal 
revenue allocation plan?
290.26  How does the Indian tribe resolve disputes arising from per 
capita distributions?
290.27  Do changes/amendments to a tribal revenue allocation plan 
require approval?
290.28  What is the liability of the United States under this part?

    Authority: 5 U.S.C. 301, 25 U.S.C. 2 , 9 and 2710.


Sec. 290.1  Purpose.

    This part contains procedures for submitting, reviewing and 
approving tribal revenue allocation plans for distributing net gaming 
revenues from tribal gaming activities. It applies to review of tribal 
revenue allocation plans adopted under the IGRA.


Sec. 290.2  Definitions.

    Appropriate Bureau Official means the Bureau Official with 
delegated authority to approve tribal revenue allocation plans.
    IGRA means the Indian Gaming Regulatory Act of 1988 (Public Law 
100-497) 102 Stat. 2467 dated October 17, 1988 (Codified at 25 U.S.C. 
2701-21 (1988)) and any amendments.
    Indian Tribe means any Indian Tribe, Band, Nation, or other 
organized group or community of Indians that the Secretary recognizes 
as
    (1) Eligible for the special programs and services provided by the 
United States to Indians because of their status as Indians, and
    (2) Having powers of self-government.
    Legal incompetent is an individual beneficiary eligible to 
participate in a per capita payment and who has been declared to be 
under a legal disability, other than being a minor, by a court of 
competent jurisdiction, including tribal justice systems.
    Member of an Indian tribe means
    (1) An individual who meets the membership requirements of the 
tribe as set forth in its governing document or
    (2) Absent such a document, has been recognized as a member by the 
tribal governing body, and has consistently maintained tribal relations 
with the tribe or is listed on the tribal rolls of that tribe as a 
member, if such rolls are kept.
    Minor is an individual beneficiary who is eligible to participate 
in a per capita payment and who has not reached the age of eighteen 
(18) years.
    Per capita means any payment made to all members of the tribe, or, 
to identified groups of members, pursuant to the per capita provisions 
of a tribal revenue allocation plan.
    Resolution means the formal document in which the tribal governing 
body expresses its legislative will in accordance with its governing 
document. In the absence of an governing document, a written expression 
adopted by the tribal governing body will be acceptable.
    Secretary means the Secretary of the Interior or his authorized 
representative.

[[Page 29046]]

    Superintendent means the official or other designated 
representative of the Bureau of Indian Affairs in charge of the field 
office which has immediate administrative responsibility for the 
affairs of the tribe, band, or group for which a tribal revenue 
allocation plan is prepared.
    Tribal Governing Body means the governing body of an Indian tribe 
recognized by the Secretary.
    Tribal Revenue Allocation Plan means the document submitted by an 
Indian tribe that provides for distributing net gaming revenues.
    You and your means the Indian tribe.


Sec. 290.3  What will the Secretary approve?

    The Secretary will review and approve tribal revenue allocation 
plans for compliance with IGRA.


Sec. 290.4  What is a tribal revenue allocation plan?

    It is the document you must submit that describes how you will 
allocate net gaming revenues.


Sec. 290.5  Who must submit a tribal revenue allocation plan?

    Any Indian tribe that intends to make a per capita payment from net 
gaming revenues.


Sec. 290.6  Must an Indian tribe have a tribal revenue allocation plan 
if it is not making per capita payments?

    No, if you do not make per capita payments, you do not need to 
submit a tribal revenue allocation plan.


Sec. 290.7  Do Indian tribes have to make per capita payments from net 
gaming revenues to tribal members?

    No. You do not have to make per capita payments.


Sec. 290.8  How may an Indian tribe use net gaming revenues if it does 
not have an approved tribal revenue allocation plan?

    Without an approved tribal revenue allocation plan, you may only 
use net gaming revenues to fund tribal government operations or 
programs; to provide for the general welfare of your tribe and its 
members; to promote tribal economic development; to donate to 
charitable organizations; or to help fund operations of local 
government agencies.


Sec. 290.9  Is an Indian tribe in violation of IGRA if it makes per 
capita payments to members without an approved tribal revenue 
allocation plan?

    Yes, you are in violation of IGRA. If you refuse to comply, the 
Department of Justice may enforce the per capita requirements of IGRA.


Sec. 290.10  May an Indian tribe distribute per capita payments from 
net revenues derived from either Class II and Class III without a 
tribal revenue allocation plan?

    No, IGRA requires that you have an approved tribal revenue 
allocation plan.


Sec. 290.11  What information must the tribal revenue allocation plan 
contain?

    (a) You must prepare a tribal revenue allocation plan that includes 
a percentage breakdown of the uses for which you will allocate net 
gaming revenues. The percentage breakdown must total one-hundred 
percent (100%).
    (b) The tribal revenue allocation plan must meet the following 
criteria:
    (1) It must ensure that not more than fifty percent (50%) of the 
net gaming revenues be used for per capita payments to members.
    (2) It must reserve a significant portion of net gaming revenues 
from the tribal gaming activity for the following purposes:
    (i) To fund tribal government operations or programs;
    (ii) To provide for the general welfare of the tribe or its 
members;
    (iii) To promote tribal economic development;
    (iv) To donate to charitable organizations; or
    (v) To help fund operations of local government.
    (3) It must contain sufficient information, for review by the 
Secretary as required by IGRA, in particular regarding funding for 
tribal governmental operations or programs and for promoting tribal 
economic development.
    (4) It must protect and preserve the interests of minors and other 
legally incompetent persons entitled to receive per capita payments. It 
must also ensure that per capita payments due to a minor or incompetent 
are given to the parents or legal guardian of these minors or 
incompetents in amounts necessary for the health, education or welfare 
of the minor or incompetent.
    (5) It must describe how you will notify members of the tax 
liability of the per capita payments and how you will withhold taxes 
for all recipients in accordance with Internal Revenue Service 
regulations contained in 26 CFR part 31.
    (6) It must authorize the distribution of per capita payments to 
members according to specific eligibility requirements and establish a 
process for dispute resolution.


Sec. 290.12  Under what conditions may an Indian tribe distribute per 
capita payments?

    You may make per capita payments only after the Secretary approves 
your tribal revenue allocation plan.


Sec. 290.13  How must an Indian tribe divide or allocate per capita 
funds?

    You must divide all per capita funds equally among the members of 
your tribe, or to the identified groups of members eligible to 
participate.


Sec. 290.14  Who can share in a per capita payment?

    (a) You must establish your own criteria for determining whether 
all members or identified groups of members are eligible for per capita 
payments.
    (b) If the tribal revenue allocation plan calls for distributing 
per capita payments to an identified group of members rather than to 
all members, you must justify limiting this payment to the identified 
group of members. You must make sure that:
    (1) The distinction between members eligible to receive payments 
and members ineligible to receive payments is reasonable and not 
arbitrary;
    (2) The distinction does not discriminate or otherwise violate the 
Indian Civil Rights Act;
    (3) The justification complies with your governing document.


Sec. 290.15  How does an Indian tribe disburse the per capita shares of 
minors and legal incompetents?

    You must prescribe the conditions for disbursing funds under the 
tribal revenue allocation plan to the parents or legal guardian of a 
minor or legal incompetent.


Sec. 290.16  Must the Indian tribe establish trust accounts with 
financial institutions for minors and legal incompetents?

    No, but you must ensure that the shares allocated to minors and 
legal incompetents are protected and preserved and that the funds are 
given to parents or legal guardian in sufficient amounts necessary for 
the health, education, or welfare of the minor or legal incompetent.


Sec. 290.17  Can the per capita payments of minors and legal 
incompetents be deposited into Bureau of Indian Affairs Individual 
Indian Monies (IIM) Accounts?

    No. You may not use IIM accounts. The Secretary will not accept 
voluntary deposits to IIM accounts.


Sec. 290.18  What documents must the Indian tribe include with the 
tribal revenue allocation plan?

    You must include:
    (a) A written request for approval of the tribal revenue allocation 
plan; and
    (b) A tribal resolution or other document, including the date and 
place of adoption and the result of any vote taken, that certifies you 
have adopted

[[Page 29047]]

the tribal revenue allocation plan according to your governing 
document.


Sec. 290.19  Where should the Indian tribe submit the tribal revenue 
allocation plan?

    You must submit your tribal revenue allocation plan to your 
respective Superintendent. The Superintendent will review the tribal 
revenue allocation plan to make sure it has been properly adopted and 
contains all information needed. The Superintendent will then transmit 
the tribal revenue allocation plan promptly to the Appropriate Bureau 
Official.


Sec. 290.20  What action must the Appropriate Bureau Official take?

    The Appropriate Bureau Official must approve any tribal revenue 
allocation plan that is sufficiently detailed to allow the Appropriate 
Bureau Official to determine that it complies with Sec. 290.11 and the 
IGRA.


Sec. 290.21  How long will the review by the Appropriate Bureau 
Official take?

    (a) Within 90 days after the Appropriate Bureau Official receives 
the tribal revenue allocation plan, or such shorter time as may be 
provided in the tribes' governing documents approved by the Secretary, 
the Appropriate Bureau Official must review and approve the tribal 
revenue allocation plan if it conforms with this part and the IGRA.
    (b) If the tribal revenue allocation plan does not conform to the 
requirements of IGRA or this part, the Appropriate Bureau Official will 
send you a written notice within the time periods set forth in 
paragraph (a) of this section. The notice will explain why the tribal 
revenue allocation plan does not comply with this part or the IGRA and 
tell you how to bring it into compliance.


Sec. 290.22  What action will the Appropriate Bureau Official take if 
the tribal revenue allocation plan cannot be approved?

    The Appropriate Bureau Official will not approve any tribal revenue 
allocation plan for distribution of net gaming revenues from a tribal 
gaming activity if:
    (a) The tribal revenue allocation plan is inadequate, particularly 
with respect to the requirements described in Sec. 290.11 and IGRA, and 
you fail to bring it into compliance; or
    (b) The tribal revenue allocation plan is not adopted in compliance 
with your governing documents; or
    (c) The tribal revenue allocation plan does not include a 
reasonable justification for limiting per capita payments to certain 
groups of members; or
    (d) The tribal revenue allocation plan violates the Indian Civil 
Rights Act of 1968, any other provision of Federal law, or the United 
States' trust obligations.


Sec. 290.23  May an Indian tribe appeal the Appropriate Bureau 
Official's decision?

    Yes, the Appropriate Bureau Official's decision may be appealed in 
accordance with the regulations at 25 CFR part 2.


Sec. 290.24  What happens if an Indian tribe makes per capita payments 
without an approved tribal revenue allocation plan?

    The Department of Justice may enforce the per capita approval 
requirements of IGRA for any tribe refusing to comply with the law.


Sec. 290.25  How does the Indian tribe assure compliance with its 
tribal revenue allocation plan?

    You must establish a process in the tribal revenue allocation plan 
for reviewing expenditures of net gaming revenues and explain how you 
will correct deficiencies.


Sec. 290.26  How does the Indian tribe resolve disputes arising from 
per capita distributions?

    You must establish a process to resolve disputes arising from per 
capita distributions.


Sec. 290.27  Do changes/amendments to a tribal revenue allocation plan 
require approval?

    Yes, the Appropriate Bureau Official must approve any changes/
amendments to a tribal revenue allocation plan to ensure that the 
changes/modifications conform to Sec. 290.11 and the IGRA.


Sec. 290.28  What is the liability of the United States under this 
part?

    The United States is not liable for the manner in which a tribe 
distributes funds from net gaming revenues.

    Dated: May 22, 1996.
Ada E. Deer,
Assistant Secretary--Indian Affairs.
[FR Doc. 96-14061 Filed 6-6-96; 8:45 am]
BILLING CODE 4310-02-P