  Mar. 30, 2020

      Title 25
      Indians
      Parts 1 to 299
      Revised as of April 1, 2020
      Containing a codification of documents of general applicability and future effect
      As of April 1, 2020

        Published by the Office of the Federal Register National Archives and Records Administration as a Special Edition of the Federal Register

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      Table of Contents
      Page

        Explanation
        v

        Title 25:

          Chapter I—Bureau of Indian Affairs, Department of the Interior
          3

        Finding Aids:
        Table of CFR Titles and Chapters
        971
        Alphabetical List of Agencies Appearing in the CFR
        991
        List of CFR Sections Affected
        1001

      Cite this Code: CFR

      To cite the regulations in this volume use title, part and section number. Thus, 25 CFR 1.2 refers to title 25, part 1, section 2.

      Explanation
      The Code of Federal Regulations is a codification of the general and permanent rules published in the Federal Register by the Executive departments and agencies of the Federal Government. The Code is divided into 50 titles which represent broad areas subject to Federal regulation. Each title is divided into chapters which usually bear the name of the issuing agency. Each chapter is further subdivided into parts covering specific regulatory areas.
      Each volume of the Code is revised at least once each calendar year and issued on a quarterly basis approximately as follows:

        Title 1 through Title 16
        as of January 1
        Title 17 through Title 27
        as of April 1
        Title 28 through Title 41
        as of July 1
        Title 42 through Title 50
        as of October 1

      The appropriate revision date is printed on the cover of each volume.

        LEGAL STATUS
        The contents of the Federal Register are required to be judicially noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie evidence of the text of the original documents (44 U.S.C. 1510).

        HOW TO USE THE CODE OF FEDERAL REGULATIONS
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        EFFECTIVE AND EXPIRATION DATES
        Each volume of the Code contains amendments published in the Federal Register since the last revision of that volume of the Code. Source citations for the regulations are referred to by volume number and page number of the Federal Register and date of publication. Publication dates and effective dates are usually not the same and care must be exercised by the user in determining the actual effective date. In instances where the effective date is beyond the cut-off date for the Code a note has been inserted to reflect the future effective date. In those instances where a regulation published in the Federal Register states a date certain for expiration, an appropriate note will be inserted following the text.

        OMB CONTROL NUMBERS

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        PAST PROVISIONS OF THE CODE
        Provisions of the Code that are no longer in force and effect as of the revision date stated on the cover of each volume are not carried. Code users may find the text of provisions in effect on any given date in the past by using the appropriate List of CFR Sections Affected (LSA). For the convenience of the reader, a “List of CFR Sections Affected” is published at the end of each CFR volume. For changes to the Code prior to the LSA listings at the end of the volume, consult previous annual editions of the LSA. For changes to the Code prior to 2001, consult the List of CFR Sections Affected compilations, published for 1949-1963, 1964-1972, 1973-1985, and 1986-2000.

        “[RESERVED]” TERMINOLOGY
        The term “[Reserved]” is used as a place holder within the Code of Federal Regulations. An agency may add regulatory information at a “[Reserved]” location at any time. Occasionally “[Reserved]” is used editorially to indicate that a portion of the CFR was left vacant and not dropped in error.

        INCORPORATION BY REFERENCE

          What is incorporation by reference? Incorporation by reference was established by statute and allows Federal agencies to meet the requirement to publish regulations in the Federal Register by referring to materials already published elsewhere. For an incorporation to be valid, the Director of the Federal Register must approve it. The legal effect of incorporation by reference is that the material is treated as if it were published in full in the Federal Register (5 U.S.C. 552(a)). This material, like any other properly issued regulation, has the force of law.

          What is a proper incorporation by reference? The Director of the Federal Register will approve an incorporation by reference only when the requirements of 1 CFR part 51 are met. Some of the elements on which approval is based are:
        (a) The incorporation will substantially reduce the volume of material published in the Federal Register.
        (b) The matter incorporated is in fact available to the extent necessary to afford fairness and uniformity in the administrative process.
        (c) The incorporating document is drafted and submitted for publication in accordance with 1 CFR part 51.

          What if the material incorporated by reference cannot be found? If you have any problem locating or obtaining a copy of material listed as an approved incorporation by reference, please contact the agency that issued the regulation containing that incorporation. If, after contacting the agency, you find the material is not available, please notify the Director of the Federal Register, National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001, or call 202-741-6010.

        CFR INDEXES AND TABULAR GUIDES

        A subject index to the Code of Federal Regulations is contained in a separate volume, revised annually as of January 1, entitled CFR Index and Finding Aids. This volume contains the Parallel Table of Authorities and Rules. A list of CFR titles, chapters, subchapters, and parts and an alphabetical list of agencies publishing in the CFR are also included in this volume.

        An index to the text of “Title 3—The President” is carried within that volume.

        The Federal Register Index is issued monthly in cumulative form. This index is based on a consolidation of the “Contents” entries in the daily Federal Register.
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        REPUBLICATION OF MATERIAL
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        INQUIRIES
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        ELECTRONIC SERVICES

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        The Office of the Federal Register also offers a free service on the National Archives and Records Administration's (NARA) website for public law numbers, Federal Register finding aids, and related information. Connect to NARA's website at www.archives.gov/federal-register.

        The e-CFR is a regularly updated, unofficial editorial compilation of CFR material and Federal Register amendments, produced by the Office of the Federal Register and the Government Publishing Office. It is available at www.ecfr.gov.

          Oliver A. Potts,

          Director,

          Office of the Federal Register

          April 1, 2020

      THIS TITLE
      Title 25—Indians is composed of two volumes. The parts in these volumes are arranged in the following order: Parts 1—299, and part 300 to end. The contents of these volumes represent all current regulations codified under this title of the CFR as of April 1, 2020.
      For this volume, Stephen J. Frattini was Chief Editor. The Code of Federal Regulations publication program is under the direction of John Hyrum Martinez.

    25 CFR Ch. I (4-1-20 Edition)
    Bureau of Indian Affairs, Interior

        Title 25—Indians
        (This book contains parts 1 to 299)

        Part

            chapter i—Bureau of Indian Affairs, Department of the Interior
          1

          CHAPTER I—BUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR

          SUBCHAPTER A—PROCEDURES AND PRACTICE

        Part
        Page

          1
          Applicability of rules of the Bureau of Indian Affairs
          9
          2
          Appeals from administrative actions
          10
          5
          Preference in employment
          16

          SUBCHAPTER B—LAW AND ORDER

          10
          Indian country detention facilities and programs
          17
          11
          Courts of Indian offenses and law and order code
          19
          12
          Indian country law enforcement
          58
          13
          Tribal reassumption of jurisdiction over child custody proceedings
          63

          SUBCHAPTER C—PROBATE

          15
          Probate of Indian estates, except for members of the Osage Nation and the Five Civilized Tribes
          67
          16
          Estates of Indians of the Five Civilized Tribes
          76
          17
          Action on wills of Osage Indians
          79
          18
          Tribal probate codes
          81

          SUBCHAPTER D—HUMAN SERVICES

          20
          Financial assistance and social services programs
          86
          23
          Indian Child Welfare Act
          107
          26
          Job placement and training program
          142

          SUBCHAPTER E—EDUCATION

          30
          Adequate yearly progress (Eff. until 4-27-20)
          149
          30
          Standards, assessments, and accountability system (Eff. 4-27-20)
          155
          31
          Federal schools for Indians
          169
          32
          Indian education policies
          170
          33
          Transfer of Indian education functions
          174

          36
          Minimum academic standards for the basic education of Indian children and national criteria for dormitory situations
          176
          37
          Geographic boundaries
          196
          38
          Education personnel
          199
          39
          The Indian school equalization program
          213
          40
          Administration of educational loans, grants and other assistance for higher education
          237
          41
          Grants to tribal colleges and universities and Diné College
          238
          42
          Student rights
          247
          43
          Maintenance and control of student records in Bureau schools
          249
          44
          Grants under the Tribally Controlled Schools Act
          255
          46
          Adult Education Program
          257
          47
          Uniform direct funding and support for Bureau-operated schools
          260

          SUBCHAPTER F—TRIBAL GOVERNMENT

          61
          Preparation of rolls of Indians
          263
          62
          Enrollment appeals
          274
          63
          Indian child protection and family violence prevention
          277
          67
          Preparation of a roll of independent Seminole Indians of Florida
          286
          75
          Revision of the membership roll of the Eastern Band of Cherokee Indians, North Carolina
          290
          81
          Secretarial election procedures
          295
          82
          [Reserved]
          83
          Procedures for Federal acknowledgment of Indian tribes
          310
          84
          Encumbrances of tribal land—Contract approvals
          324
          87
          Use or distribution of Indian judgment funds
          326
          88
          Recognition of attorneys and agents to represent claimants
          331
          89
          Attorney contracts with Indian tribes
          331
          90
          Election of officers of the Osage Tribe
          334
          91
          Government of Indian villages, Osage Reservation, Oklahoma
          340

          SUBCHAPTER G—FINANCIAL ACTIVITIES

          101
          Loans to Indians from the Revolving Loan Fund
          345
          103
          Loan guaranty, insurance, and interest subsidy
          356
          111
          Annuity and other per capita payments
          373
          114
          Special deposits [Reserved]
          115
          Trust funds for tribes and individual Indians
          374

          117
          Deposit and expenditure of individual funds of members of the Osage Tribe of Indians who do not have certificates of competency
          399
          122
          Management of Osage judgment funds for education
          407
          124
          Deposits of proceeds from lands withdrawn for Native selection
          409
          134
          Partial payment construction charges on Indian irrigation projects
          410
          135
          Construction assessments, Crow Indian irrigation project
          412
          136
          Fort Hall Indian irrigation project, Idaho
          414
          137
          Reimbursement of construction costs, San Carlos Indian irrigation project, Arizona
          414
          138
          Reimbursement of construction costs, Ahtanum Unit, Wapato Indian irrigation project, Washington
          416
          139
          Reimbursement of construction costs, Wapato-Satus Unit, Wapato Indian irrigation project, Washington
          417
          140
          Licensed Indian traders
          418
          141
          Business practices on the Navajo, Hopi and Zuni Reservations
          423
          142
          Alaska Resupply Operation
          437
          143
          Charges for goods and services provided to non-Federal users
          440

          SUBCHAPTER H—LAND AND WATER

          150
          Land records and title documents
          443
          151
          Land acquisitions
          446
          152
          Issuance of patents in fee, certificates of competency, removal of restrictions, and sale of certain Indian lands
          451
          153
          Determination of competency: Crow Indians
          460
          158
          Osage lands
          461
          159
          Sale of irrigable lands, special water contract requirements
          462
          160
          Inclusion of liens in all patents and instruments executed
          463
          161
          Navajo partitioned lands grazing permits
          464
          162
          Leases and permits
          479
          163
          General forestry regulations
          574
          166
          Grazing permits
          600
          167
          Navajo grazing regulations
          633
          168
          Grazing regulations for the Hopi Partitioned Lands area
          637
          169
          Rights-of-way over Indian lands
          643

          170
          Tribal Transportation Program
          670
          171
          Irrigation operation and maintenance
          720
          172
          Pueblo Indian lands benefited by irrigation and drainage works of Middle Rio Grande Conservancy District, New Mexico
          730
          173
          Concessions, permits and leases on lands withdrawn or acquired in connection with Indian irrigation projects
          730
          175
          Electric power utilities
          733
          179
          Life estates and future interests
          738
          181
          Indian Highway Safety Program
          740
          183
          Use and distribution of the San Carlos Apache Tribe Development Trust Fund and San Carlos Apache Tribe Lease Fund
          742

          SUBCHAPTER I—ENERGY AND MINERALS

          200
          Terms and conditions: Coal leases
          747
          211
          Leasing of tribal lands for mineral development
          747
          212
          Leasing of allotted lands for mineral development
          762
          213
          Leasing of restricted lands of members of Five Civilized Tribes, Oklahoma, for mining
          770
          214
          Leasing of Osage Reservation lands, Oklahoma, for mining, except oil and gas
          783
          215
          Lead and zinc mining operations and leases, Quapaw Agency
          789
          216
          Surface exploration, mining, and reclamation of lands
          797
          217
          Management of tribal assets of Ute Indian Tribe, Uintah and Ouray Reservation, Utah, by the tribe and the Ute Distribution Corp.
          803
          224
          Tribal energy resource agreements under the Indian Tribal Energy Development and Self Determination Act
          804
          225
          Oil and gas, geothermal, and solid minerals agreements
          832
          226
          Leasing of Osage Reservation lands for oil and gas mining
          842
          227
          Leasing of certain lands in Wind River Indian Reservation, Wyoming, for oil and gas mining
          858

          SUBCHAPTER J—FISH AND WILDLIFE

          241
          Indian fishing in Alaska
          866
          242
          Commercial fishing on Red Lake Indian Reservation
          869
          243
          Reindeer in Alaska
          870
          247
          Use of Columbia River Treaty fishing access sites
          873
          248
          Use of Columbia River Indian in-lieu fishing sites
          877

          249
          Off-reservation treaty fishing
          878

          SUBCHAPTER K—HOUSING

          256
          Housing Improvement Program (HIP)
          882

          SUBCHAPTER L—HERITAGE PRESERVATION

          262
          Protection of archaeological resources
          891
          265
          Establishment of roadless and wild areas on Indian reservations
          896

          SUBCHAPTER M—INDIAN SELF-DETERMINATION AND EDUCATION ASSISTANCE ACT PROGRAM

          273
          Education contracts under Johnson-O'Malley Act
          897
          275
          Staffing
          916
          276
          Uniform administrative requirements for grants
          917

          SUBCHAPTER N—ECONOMIC ENTERPRISES

          286
          Indian Business Development Program
          941
          290
          Tribal revenue allocation plans
          946
          291
          Class III gaming procedures
          950
          292
          Gaming on trust lands acquired after October 17, 1988
          954
          293
          Class III tribal state gaming compact process
          962
          294-299
          [Reserved]

          SUBCHAPTER O—MISCELLANEOUS [RESERVED]

        Appendix to Chapter I—Extension of the Trust or Restricted Status of Certain Indian Lands
        965

        SUBCHAPTER A—PROCEDURES AND PRACTICE

          Pt. 1
          PART 1—APPLICABILITY OF RULES OF THE BUREAU OF INDIAN AFFAIRS

            Sec.
            1.1
            [Reserved]
            1.2
            Applicability of regulations and reserved authority of the Secretary of the Interior.
            1.3
            Scope.
            1.4
            State and local regulation of the use of Indian property.
            1.10
            Availability of forms.

            Authority:
            5 U.S.C. 301; R.S. 463, 25 U.S.C. 2.

            § 1.1
            [Reserved]

            § 1.2
            Applicability of regulations and reserved authority of the Secretary of the Interior.
            The regulations in chapter I of title 25 of the Code of Federal Regulations are of general application. Notwithstanding any limitations contained in the regulations of this chapter, the Secretary retains the power to waive or make exceptions to his regulations as found in chapter I of title 25 CFR in all cases where permitted by law and the Secretary finds that such waiver or exception is in the best interest of the Indians.
            [25 FR 3124, Apr. 12, 1960]

            § 1.3
            Scope.
            Chapters I and II of this title contain the bulk of the regulations of the Department of the Interior of general application relating to Indian affairs. Subtitle B, chapter I, title 43 of the Code or Federal Regulations contains rules relating to the relationship of Indians to public lands and townsites. Subtitle A of title 43 CFR has application to certain aspects of Indian affairs and, among other things, contains procedural rules for appellate and other administrative review and for practice before the Department of the Interior, of which the Bureau of Indian Affairs is a part. Indian health matters are covered in 42 CFR part 36. Title 30 CFR contains regulations on oil and gas and other mining operations, which, under certain circumstances, may be applicable to Indian resources.
            [25 FR 3124, Apr. 12, 1960, as amended at 40 FR 20625, May 12, 1975; 48 FR 13414, Mar. 31, 1983]

            § 1.4
            State and local regulation of the use of Indian property.
            (a) Except as provided in paragraph (b) of this section, none of the laws, ordinances, codes, resolutions, rules or other regulations of any State or political subdivision thereof limiting, zoning or otherwise governing, regulating, or controlling the use or development of any real or personal property, including water rights, shall be applicable to any such property leased from or held or used under agreement with and belonging to any Indian or Indian tribe, band, or community that is held in trust by the United States or is subject to a restriction against alienation imposed by the United States.
            (b) The Secretary of the Interior or his authorized representative may in specific cases or in specific geographic areas adopt or make applicable to Indian lands all or any part of such laws, ordinances, codes, resolutions, rules or other regulations referred to in paragraph (a) of this section as he shall determine to be in the best interest of the Indian owner or owners in achieving the highest and best use of such property. In determining whether, or to what extent, such laws, ordinances, codes, resolutions, rules or other regulations shall be adopted or made applicable, the Secretary or his authorized representative may consult with the Indian owner or owners and may consider the use of, and restrictions or limitations on the use of, other property in the vicinity, and such other factors as he shall deem appropriate.
            [30 FR 7520, June 9, 1965]

            § 1.10
            Availability of forms.

            Forms upon which applications and related documents may be filed and upon which rights and privileges may be granted may be inspected and procured at the Bureau of Indian Affairs, Washington, DC, and at the office of any Area Director or Agency Superintendent.
            [25 FR 3124, Apr. 12, 1960]

          Pt. 2
          PART 2—APPEALS FROM ADMINISTRATIVE ACTIONS

            Sec.
            2.1
            Information collection.
            2.2
            Definitions.
            2.3
            Applicability.
            2.4
            Officials who may decide appeals.
            2.5
            Appeal bond.
            2.6
            Finality of decisions.
            2.7
            Notice of administrative decision or action.
            2.8
            Appeal from inaction of official.
            2.9
            Notice of an appeal.
            2.10
            Statement of reasons.
            2.11
            Answer of interested party.
            2.12
            Service of appeal documents.
            2.13
            Filing documents.
            2.14
            Record address.
            2.15
            Computation of time.
            2.16
            Extensions of time.
            2.17
            Summary dismissal.
            2.18
            Consolidation of appeals.
            2.19
            Action by Area Directors and Education Programs officials on appeal.
            2.20
            Action by the Assistant Secretary—Indian Affairs on appeal.
            2.21
            Scope of review.

            Authority:
            R.S. 463, 465; 5 U.S.C. 301, 25 U.S.C. 2, 9.

            Source:
            54 FR 6480, Feb. 10, 1989, unless otherwise noted.

            § 2.1
            Information collection.
            In accordance with Office of Management and Budget regulations in 5 CFR 1320.3(c), approval of information collections contained in this regulation is not required.

            § 2.2
            Definitions.

              Appeal means a written request for review of an action or the inaction of an official of the Bureau of Indian Affairs that is claimed to adversely affect the interested party making the request.

              Appellant means any interested party who files an appeal under this part.

              Interested party means any person whose interests could be adversely affected by a decision in an appeal.

              Legal holiday means a Federal holiday as designated by the President or the Congress of the United States.

              Notice of appeal means the written document sent to the official designated in this part, indicating that a decision is being appealed (see § 2.9).

              Person includes any Indian or non-Indian individual, corporation, tribe or other organization.

              Statement of reasons means a written document submitted by the appellant explaining why the decision being appealed is in error (see § 2.10).
            [54 FR 6480, Feb. 10, 1989; 54 FR 7666, Feb. 22, 1989]

            § 2.3
            Applicability.
            (a) Except as provided in paragraph (b) of this section, this part applies to all appeals from decisions made by officials of the Bureau of Indian Affairs by persons who may be adversely affected by such decisions.
            (b) This part does not apply if any other regulation or Federal statute provides a different administrative appeal procedure applicable to a specific type of decision.

            § 2.4
            Officials who may decide appeals.
            The following officials may decide appeals:
            (a) An Area Director, if the subject of appeal is a decision by a person under the authority of that Area Director.
            (b) An Area Education Programs Administrator, Agency Superintendent for Education, President of a Post-Secondary School, or the Deputy to the Assistant Secretary—Indian Affairs/Director (Indian Education Programs), if the appeal is from a decision by an Office of Indian Education Programs (OIEP) official under his/her jurisdiction.
            (c) The Assistant Secretary—Indian Affairs pursuant to the provisions of § 2.20 of this part.
            (d) A Deputy to the Assistant Secretary—Indian Affairs pursuant to the provisions of § 2.20(c) of this part.
            (e) The Interior Board of Indian Appeals, pursuant to the provisions of 43 CFR part 4, subpart D, if the appeal is from a decision made by an Area Director or a Deputy to the Assistant Secretary—Indian Affairs other than the Deputy to the Assistant Secretary—Indian Affairs/Director (Indian Education Programs).

            § 2.5
            Appeal bond.
            (a) If a person believes that he/she may suffer a measurable and substantial financial loss as a direct result of the delay caused by an appeal, that person may request that the official before whom the appeal is pending require the posting of a reasonable bond by the appellant adequate to protect against that financial loss.
            (b) A person requesting that a bond be posted bears the burden of proving the likelihood that he/she may suffer a measurable and substantial financial loss as a direct result of the delay caused by the appeal.
            (c) In those cases in which the official before whom an appeal is pending determines that a bond is necessary to protect the financial interests of an Indian or Indian tribe, that official may require the posting of a bond on his/her own initiative.
            (d) Where the official before whom an appeal is pending requires a bond to be posted or denies a request that a bond be posted, he/she shall give notice of his/her decision pursuant to § 2.7.

            § 2.6
            Finality of decisions.
            (a) No decision, which at the time of its rendition is subject to appeal to a superior authority in the Department, shall be considered final so as to constitute Departmental action subject to judicial review under 5 U.S.C. 704, unless when an appeal is filed, the official to whom the appeal is made determines that public safety, protection of trust resources, or other public exigency requires that the decision be made effective immediately.
            (b) Decisions made by officials of the Bureau of Indian Affairs shall be effective when the time for filing a notice of appeal has expired and no notice of appeal has been filed.
            (c) Decisions made by the Assistant Secretary—Indian Affairs shall be final for the Department and effective immediately unless the Assistant Secretary—Indian Affairs provides otherwise in the decision.
            [54 FR 6480, Feb. 10, 1989; 54 FR 7666, Feb. 22, 1989]

            § 2.7
            Notice of administrative decision or action.
            (a) The official making a decision shall give all interested parties known to the decisionmaker written notice of the decision by personal delivery or mail.
            (b) Failure to give such notice shall not affect the validity of the decision or action but the time to file a notice of appeal regarding such a decision shall not begin to run until notice has been given in accordance with paragraph (c) of this section.
            (c) All written decisions, except decisions which are final for the Department pursuant to § 2.6(c), shall include a statement that the decision may be appealed pursuant to this part, identify the official to whom it may be appealed and indicate the appeal procedures, including the 30-day time limit for filing a notice of appeal.
            [54 FR 6480, Feb. 10, 1989; 54 FR 7666, Feb. 22, 1989]

            § 2.8
            Appeal from inaction of official.
            (a) A person or persons whose interests are adversely affected, or whose ability to protect such interests is impeded by the failure of an official to act on a request to the official, can make the official's inaction the subject of appeal, as follows:
            (1) Request in writing that the official take the action originally asked of him/her;
            (2) Describe the interest adversely affected by the official's inaction, including a description of the loss, impairment or impediment of such interest caused by the official's inaction;
            (3) State that, unless the official involved either takes action on the merits of the written request within 10 days of receipt of such request by the official, or establishes a date by which action will be taken, an appeal shall be filed in accordance with this part.

            (b) The official receiving a request as specified in paragraph (a) of this section must either make a decision on the merits of the initial request within 10 days from receipt of the request for a decision or establish a reasonable later date by which the decision shall be made, not to exceed 60 days from the date of request. If an official establishes a date by which a requested decision shall be made, this date shall be the date by which failure to make a decision shall be appealable under this part. If the official, within the 10-day period specified in paragraph (a) of this section, neither makes a decision on the merits of the initial request nor establishes a later date by which a decision shall be made, the official's inaction shall be appealable to the next official in the process established in this part.
            [54 FR 6480, Feb. 10, 1989; 54 FR 7666, Feb. 22, 1989]

            § 2.9
            Notice of an appeal.
            (a) An appellant must file a written notice of appeal in the office of the official whose decision is being appealed. The appellant must also send a copy of the notice of appeal to the official who will decide the appeal and to all known interested parties. The notice of appeal must be filed in the office of the official whose decision is being appealed within 30 days of receipt by the appellant of the notice of administrative action described in § 2.7. A notice of appeal that is filed by mail is considered filed on the date that it is postmarked. The burden of proof of timely filing is on the appellant. No extension of time shall be granted for filing a notice of appeal. Notices of appeal not filed in the specified time shall not be considered, and the decision involved shall be considered final for the Department and effective in accordance with § 2.6(b).
            (b) When the appellant is an Indian or Indian tribe not represented by counsel, the official who issued the decision appealed shall, upon request of the appellant, render such assistance as is appropriate in the preparation of the appeal.
            (c) The notice of appeal shall:
            (1) Include name, address, and phone number of appellant.
            (2) Be clearly labeled or titled with the words “NOTICE OF APPEAL.”
            (3) Have on the face of any envelope in which the notice is mailed or delivered, in addition to the address, the clearly visible words “NOTICE OF APPEAL.”
            (4) Contain a statement of the decision being appealed that is sufficient to permit identification of the decision.
            (5) If possible, attach either a copy of the notice of the administrative decision received under § 2.7, or when an official has failed to make a decision or take any action, attach a copy of the appellant's request for a decision or action under § 2.8 with a written statement that the official failed to make a decision or take any action or to establish a date by which a decision would be made upon the request.
            (6) Certify that copies of the notice of appeal have been served on interested parties, as prescribed in § 2.12(a).

            § 2.10
            Statement of reasons.
            (a) A statement of reasons shall be filed by the appellant in every appeal, and shall be accompanied by or otherwise incorporate all supporting documents.
            (b) The statement of reasons may be included in or filed with the notice of appeal.
            (c) If the statement of reasons is not filed with the notice of appeal, the appellant shall file a separate statement of reasons in the office of the official whose decision is being appealed within 30 days after the notice of appeal was filed in that office.
            (d) The statement of reasons whether filed with the notice of appeal or filed separately should:
            (1) Be clearly labeled “STATEMENT OF REASONS”.
            (2) Have on the face of any envelope in which the statement of reasons is mailed or delivered, in addition to the address, the clearly visible words “STATEMENT OF REASONS”.
            [54 FR 6480, Feb. 10, 1989; 54 FR 7666, Feb. 22, 1989]

            § 2.11
            Answer of interested party.
            (a) Any interested party wishing to participate in an appeal proceeding should file a written answer responding to the appellant's notice of appeal and statement of reasons. An answer should describe the party's interest.

            (b) An answer shall state the party's position or response to the appeal in any manner the party deems appropriate and may be accompanied by or otherwise incorporate supporting documents.
            (c) An answer must be filed within 30 days after receipt of the statement of reasons by the person filing an answer.
            (d) An answer and any supporting documents shall be filed in the office of the official before whom the appeal is pending as specified in § 2.13.
            (e) An answer should:
            (1) Be clearly labelled or titled with the words “ANSWER OF INTERESTED PARTY.”
            (2) Have on the face of any envelope in which the answer is mailed or delivered, in addition to the address, the clearly visible words “ANSWER OF INTERESTED PARTY,” and
            (3) Contain a statement of the decision being appealed that is sufficient to permit identification of the decision.

            § 2.12
            Service of appeal documents.
            (a) Persons filing documents in an appeal must serve copies of those documents on all other interested parties known to the person making the filing. A person serving a document either by mail or personal delivery must, at the time of filing the document, also file a written statement certifying service on each interested party, showing the document involved, the name and address of the party served, and the date of service.
            (b) If an appeal is filed with the Interior Board of Indian Appeals, a copy of the notice of appeal shall also be sent to the Assistant Secretary—Indian Affairs. The notice of appeal sent to the Interior Board of Indian Appeals shall certify that a copy has been sent to the Assistant Secretary—Indian Affairs.
            (c) If the appellant is an Indian or Indian tribe not represented by counsel, the official with whom the appeal is filed (i.e., official making the decision being appealed) shall, in the manner prescribed in this section, personally or by mail serve a copy of all appeal documents on the official who will decide the appeal and on each interested party known to the official making such service.
            (d) Service of any document under this part shall be by personal delivery or by mail to the record address as specified in § 2.14. Service on a tribe shall be to the principal or designated tribal official or to the governing body.
            (e) In all cases where a party is represented by an attorney in an appeal, service of any document on the attorney is service on the party represented. Where a party is represented by more than one attorney, service on any one attorney is sufficient. The certificate of service on an attorney shall include the name of the party whom the attorney represents and indicate that service was made on the attorney representing that party.
            (f) When an official deciding an appeal determines that there has not been service of a document affecting a person's interest, the official shall either serve the document on the person or direct the appropriate legal counsel to serve the document on the person and allow the person an opportunity to respond.
            [54 FR 6480, Feb. 10, 1989; 54 FR 7666, Feb. 22, 1989]

            § 2.13
            Filing documents.
            (a) An appeal document is properly filed with an official of the Bureau of Indian Affairs:
            (1) By personal delivery during regular business hours to the person designated to receive mail in the immediate office of the official, or
            (2) By mail to the facility officially designated for receipt of mail addressed to the official; the document is considered filed by mail on the date that it is postmarked.
            (b) Bureau of Indian Affairs offices receiving a misdirected appeal document shall forward the document to the proper office promptly. If a person delivers an appeal document to the wrong office or mails an appeal document to an incorrect address, no extension of time should be allowed because of the time necessary for a Bureau office to redirect the document to the correct address.
            (c) Notwithstanding any other provision of this section, an official deciding an appeal shall allow late filing of a misdirected document, including a notice of appeal, where the official finds that the misdirection is the fault of the government.

            § 2.14
            Record address.
            (a) Every interested party who files a document in connection with an appeal shall, when he/she files the document, also indicate his/her address. Thereafter, any change of address shall be promptly reported to the official with whom the previous address was filed. The most current address on file under this subsection shall be deemed the proper address for all purposes under this part.
            (b) The successors in interest of a party shall also promptly inform the official specified in paragraph (a) of this section of their interest in the appeal and their address.
            (c) An appellant or interested party failing to file an address or change of address as specified in this section may not object to lack of notice or service attributable to his/her failure to indicate a new address.

            § 2.15
            Computation of time.
            In computing any period of time prescribed or allowed in this part, calendar days shall be used. Computation shall not include the day on which a decision being appealed was made, service or notice was received, a document was filed, or other event occurred causing time to begin to run. Computation shall include the last day of the period, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday.

            § 2.16
            Extensions of time.

            An official to whom an appeal is made may, upon a showing of good cause by a party and with notice to all other parties, extend the period for filing or serving any document; provided, however, that no extension will be granted for filing a notice of appeal under § 2.9 of this part or serve by itself to extend any period specified by law or regulation other than in this part.

            § 2.17
            Summary dismissal.
            (a) An appeal under this part will be dismissed if the notice of appeal is not filed within the time specified in § 2.9(a).
            (b) An appeal under this part may be subject to summary dismissal for the following causes:
            (1) If after the appellant is given an opportunity to amend them, the appeal documents do not state the reasons why the appellant believes the decision being appealed is in error, or the reasons for the appeal are not otherwise evident in the documents, or
            (2) If the appellant has been required to post a bond and fails to do so.

            § 2.18
            Consolidation of appeals.
            Separate proceedings pending before one official under this part and involving common questions of law or fact may be consolidated by the official conducting such proceedings, pursuant to a motion by any party or on the initiative of the official.

            § 2.19
            Action by Area Directors and Education Programs officials on appeal.
            (a) Area Directors, Area Education Programs Administrators, Agency Superintendents for Education, Presidents of Post-Secondary Schools and the Deputy to the Assistant Secretary—Indian Affairs/Director (Indian Education Programs) shall render written decisions in all cases appealed to them within 60 days after all time for pleadings (including all extensions granted) has expired. The decision shall include a statement that the decision may be appealed pursuant to this part, identify the official to whom it may be appealed and indicate the appeal procedures, including the 30-day time limit for filing a notice of appeal.
            (b) A copy of the decision shall be sent to the appellant and each known interested party by certified or registered mail, return receipt requested. Such receipts shall become a permanent part of the record.

            § 2.20
            Action by the Assistant Secretary—Indian Affairs on appeal.
            (a) When a decision is appealed to the Interior Board of Indian Appeals, a copy of the notice of appeal shall be sent to the Assistant Secretary—Indian Affairs.

            (b) The notice of appeal sent to the Interior Board of Indian Appeals shall certify that a copy has been sent to the Assistant Secretary—Indian Affairs.
            (c) In accordance with the provisions of § 4.332(b) of title 43 of the Code of Federal Regulations, a notice of appeal to the Board of Indian Appeals shall not be effective until 20 days after receipt by the Board, during which time the Assistant Secretary—Indian Affairs shall have authority to decide to:
            (1) Issue a decision in the appeal, or
            (2) Assign responsibility to issue a decision in the appeal to a Deputy to the Assistant Secretary—Indian Affairs.
            The Assistant Secretary—Indian Affairs will not consider petitions to exercise this authority. If the Assistant Secretary—Indian Affairs decides to issue a decision in the appeal or to assign responsibility to issue a decision in the appeal to a Deputy to the Assistant Secretary—Indian Affairs, he/she shall notify the Board of Indian Appeals, the deciding official, the appellant, and interested parties within 15 days of his/her receipt of a copy of the notice of appeal. Upon receipt of such notification, the Board of Indian Appeals shall transfer the appeal to the Assistant Secretary—Indian Affairs. The decision shall be signed by the Assistant Secretary—Indian Affairs or a Deputy to the Assistant Secretary—Indian Affairs within 60 days after all time for pleadings (including all extensions granted) has expired. If the decision is signed by the Assistant Secretary—Indian Affairs, it shall be final for the Department and effective immediately unless the Assistant Secretary—Indian Affairs provides otherwise in the decision. Except as otherwise provided in § 2.20(g), if the decision is signed by a Deputy to the Assistant Secretary—Indian Affairs, it may be appealed to the Board of Indian Appeals pursuant to the provisions of 43 CFR part 4, subpart D.
            (d) A copy of the decision shall be sent to the appellant and each known interested party by certified or registered mail, return receipt requested. Such receipts shall become a permanent part of the record.
            (e) If the Assistant Secretary—Indian Affairs or the Deputy to the Assistant Secretary—Indian Affairs to whom the authority to issue a decision has been assigned pursuant to § 2.20(c) does not make a decision within 60 days after all time for pleadings (including all extensions granted) has expired, any party may move the Board of Indian Appeals to assume jurisdiction subject to 43 CFR 4.337(b). A motion for Board decision under this section shall invest the Board with jurisdiction as of the date the motion is received by the Board.
            (f) When the Board of Indian Appeals, in accordance with 43 CFR 4.337(b), refers an appeal containing one or more discretionary issues to the Assistant Secretary—Indian Affairs for further consideration, the Assistant Secretary—Indian Affairs shall take action on the appeal consistent with the procedures in this section.
            (g) The Assistant Secretary—Indian Affairs shall render a written decision in an appeal from a decision of the Deputy to the Assistant Secretary—Indian Affairs/Director (Indian Education Programs) within 60 days after all time for pleadings (including all extensions granted) has expired. A copy of the decision shall be sent to the appellant and each known interested party by certified or registered mail, return receipt requested. Such receipts shall become a permanent part of the record. The decision shall be final for the Department and effective immediately unless the Assistant Secretary—Indian Affairs provides otherwise in the decision.

            § 2.21
            Scope of review.
            (a) When a decision has been appealed, any information available to the reviewing official may be used in reaching a decision whether part of the record or not.

            (b) When the official deciding an appeal believes it appropriate to consider documents or information not contained in the record on appeal, the official shall notify all interested parties of the information and they shall be given not less than 10 days to comment on the information before the appeal is decided. The deciding official shall include in the record copies of documents or a description of the information used in arriving at the decision. Except where disclosure of the actual documents used may be prohibited by law, copies of the information shall be made available to the parties upon request and at their expense.

          Pt. 5
          PART 5—PREFERENCE IN EMPLOYMENT

            Sec.
            5.1
            Definitions.
            5.2
            Appointment actions.
            5.3
            Application procedure for preference eligibility.
            5.4
            Information collection.

            Authority:
            4 Stat. 737, 25 U.S.C. 43; 22 Stat. 88, 25 U.S.C. 46; 28 Stat. 313, 25 U.S.C. 44; 24 Stat. 389, 25 U.S.C. 348; and 48 Stat. 986, 25 U.S.C. 472 and 479.

            § 5.1
            Definitions.
            For purposes of making appointments to vacancies in all positions in the Bureau of Indian Affairs a preference will be extended to persons of Indian descent who are:
            (a) Members of any recognized Indian tribe now under Federal Jurisdiction;
            (b) Descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation;
            (c) All others of one-half or more Indian blood of tribes indigenous to the United States;
            (d) Eskimos and other aboriginal people of Alaska; and
            (e) For one (1) year or until the Osage Tribe has formally organized, whichever comes first, effective January 5, 1989, a person of at least one-quarter degree Indian ancestry of the Osage Tribe of Indians, whose rolls were closed by an act of Congress.
            [43 FR 2393, Jan. 17, 1978. Redesignated at 47 FR 13327, Mar. 30, 1982, as amended at 54 FR 283, Jan. 5, 1989]

            § 5.2
            Appointment actions.
            (a) Preference will be afforded a person meeting any one of the standards of § 5.1 whether the appointment involves initial hiring, reinstatement, transfer, reassignment or promotion.
            (b) Preference eligibles may be given a Schedule A excepted appointment under Exception Number 213.3112(a)(7). However, if the individuals are within reach on a Civil Service Register, they may be given a competitive appointment.
            [43 FR 2393, Jan. 17, 1978. Redesignated at 47 FR 13327, Mar. 30, 1982, as amended at 49 FR 12702, Mar. 30, 1984]

            § 5.3
            Application procedure for preference eligibility.
            (a) Proof of eligibility must be submitted with the person's application for a position.
            (b) In order for a person to be considered a preference eligible according to the standards of § 5.1, they must submit proof of membership, descendancy or degree of Indian ancestry as indicated on rolls or records acceptable to the Secretary.
            [43 FR 2393, Jan. 17, 1978. Redesignated at 47 FR 13327, Mar. 30, 1982]

            § 5.4
            Information collection.

            The Office of Management and Budget has informed the Department of the Interior that the information collection requirements contained in part 5 need not be reviewed by them under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
            [54 FR 283, Jan. 5, 1989]

        SUBCHAPTER B—LAW AND ORDER

          Pt. 10
          PART 10—INDIAN COUNTRY DETENTION FACILITIES AND PROGRAMS

            Sec.
            10.1
            Why are policies and standards needed for Indian country detention programs?
            10.2
            Who is responsible for developing and maintaining the policies and standards for detention and holding facilities in Indian country?
            10.3
            Who must follow these policies and standards?
            10.4
            What happens if the policies and standards are not followed?
            10.5
            Where can I find the policies and standards for the administration, operation, services, and physical plant/construction of Indian country detention, community residential, and holding facilities?
            10.6
            How is the BIA assured that the policies and standards are being applied uniformly and facilities are properly accredited?
            10.7
            Where do I find help or receive technical assistance in complying with the policies and standards?
            10.8
            What minimum records must be kept and reports made at each detention, community residential, or holding facility in Indian country?
            10.9
            If a person is detained or incarcerated in an Indian country detention, community residential, or holding facility, how would they know what their rights, privileges, safety, protection and expected behavior would be?
            10.10
            What happens if I believe my civil rights have been violated while incarcerated in an Indian country detention or holding facility?
            10.11
            How would someone detained or incarcerated, or their representative, get the BIA policies and standards?

            Authority:
            5 U.S.C. 301; 25 U.S.C. 2, 9, 13, 2417, 2453, and 2802.

            Source:
            61 FR 34374, July 2, 1996, unless otherwise noted.

            § 10.1
            Why are policies and standards needed for Indian country detention programs?
            Policies and standards are required to ensure that all Bureau of Indian Affairs (BIA) and tribal entities that receive Federal funding for the operation, maintenance, design and construction or renovation of detention facilities, community residential, or holding facilities are supporting constitutional rights and are complying with the Indian Law Enforcement Reform Act of 1990. Self-governance tribes and tribes with limited jurisdiction are encouraged to follow the regulations in this part, and other BIA manuals and handbooks. The provision for funding tribes for detention programs under the Indian Alcohol and Substance Abuse Prevention and Treatment Act, Public Law 99-570, (25 U.S.C. 2453) requires standards and procedures for such facilities.
            [61 FR 34374, July 2, 1996; 61 FR 65473, Dec. 13, 1996]

            § 10.2
            Who is responsible for developing and maintaining the policies and standards for detention and holding facilities in Indian country?
            The Director, Office of Law Enforcement Services who reports to the Deputy Commissioner of Indian Affairs, BIA, establishes policies, procedures, and standards for the operations, design, planning, maintenance, renovation, and construction of detention programs in the BIA and by tribal contract under Indian Self-Determination and Education Assistance Act, Public Law 93-638, as amended, 25 U.S.C. 450.

            § 10.3
            Who must follow these policies and standards?

            You must follow these minimum policies, standards, and guides if you are part of the BIA or tribal detention or rehabilitation program receiving Federal funding. Self-governance tribes and tribes with limited jurisdiction are encouraged to follow the regulations in this part, and other BIA manuals and handbooks. Detention officers, guards, cooks and other staff conducting business in the facilities must meet minimum standards of law enforcement personnel as prescribed in 25 CFR part 12, subpart D, “Qualifications and Training Requirements.” Those tribal programs not receiving Federal funding under the Indian Self-Determination and Education Assistance Act (Public Law 93-638, as amended) who wish to be accredited are encouraged to use the policies and standards in that part since they have been modified and approved for Indian country.

            § 10.4
            What happens if the policies and standards are not followed?
            The risk for human and civil rights violations due to lack of common standards will subject the operation and/or facility to unnecessary exposure to liability. Lack of employee standards, particularly for training and background checks, will increase the risk of misconduct and vicarious liability of the tribes and the Federal government through tort claims. Funding sources for detention programs may become scarce to nonexistent because of contract noncompliance. The tribes' opportunity to receive funding from potential resource sharing agreements with other law enforcement agencies may be damaged because the facility may have to be closed for cause due to violation of the life safety codes.

            § 10.5
            Where can I find the policies and standards for the administration, operation, services, and physical plant/construction of Indian country detention, community residential, and holding facilities?

            The Bureau of Indian Affairs, Department of the Interior, maintains a manual of policies and procedures called the Bureau of Indian Affairs Manual (BIAM). The chapter 69 BIAM titled “Indian Country Detention Facilities and Programs,” contains the BIA's policies, procedures, and standards for detention and holding programs in Indian country. The standards for the programs within the BIAM are in handbook format for easy field reference and use. Copies of the chapter 69 BIAM and handbooks may be obtained from the Director, Office of Law Enforcement Services.
            [61 FR 34374, July 2, 1996; 61 FR 65473, Dec. 13, 1996]

            § 10.6
            How is the BIA assured that the policies and standards are being applied uniformly and facilities are properly accredited?
            The tribes and BIA programs will use a phased approach to meeting all non-mandatory detention standards and will document progress on uniform reporting. The BIA Office of Law Enforcement Services will conduct periodic operational evaluations for oversight.

            § 10.7
            Where do I find help or receive technical assistance in complying with the policies and standards?
            The BIA has a trained Detention Specialist on the staff of the Office of Law Enforcement Services, Albuquerque, New Mexico, who is available to conduct evaluations and provide technical assistance or guidance in all facets of Indian country detention programs.

            § 10.8
            What minimum records must be kept and reports made at each detention, community residential, or holding facility in Indian country?
            The Director, Office of Law Enforcement Services, BIA, will develop all necessary requirements for maintaining records, reporting data, and archiving information. These requirements will be published in 69 BIAM, “Indian Country Detention Facilities and Programs.”
            [61 FR 34374, July 2, 1996; 61 FR 65473, Dec. 13, 1996]

            § 10.9
            If a person is detained or incarcerated in an Indian country detention, community residential, or holding facility, how would they know what their rights, privileges, safety, protection and expected behavior would be?
            When an individual is incarcerated in an Indian country detention, community residential, or holding facility, he/she will be given, or in some cases notified of the availability of, an Inmate Handbook. This book of guidelines describes in detail the inmate's rights, privileges, protection and safety, cleanliness and sanitation, and general health and nutritional standards. The Inmate Handbook describes the emergency evacuation procedures, medical, counseling, rehabilitation services, visitation procedures, and other appropriate information. The Inmate Handbook is published by the Director, Office of Law Enforcement Services and maintained by the detention facility administrator at each facility location.
            [61 FR 34374, July 2, 1996; 61 FR 65473, Dec. 13, 1996]

            § 10.10
            What happens if I believe my civil rights have been violated while incarcerated in an Indian country detention or holding facility?
            All allegations of civil rights violations must be reported immediately to the Internal Affairs Branch of the Office of Law Enforcement Services. This office will ensure that such allegations are immediately reported to the Civil Rights Division of the U.S. Department of Justice through established procedures. The BIA Internal Affairs Branch may also investigate alleged violations and make recommendations for additional action as necessary. Detailed instructions on the procedure to report violations can be found in the Inmate Handbook.

            § 10.11
            How would someone detained or incarcerated, or their representative, get the BIA policies and standards?
            At each detention, community residential, or holding facility located in a tribal jurisdiction where federal funds are used for operations or maintenance programs, the BIA's policies, standards, and procedures will be made available upon request. The Inmate Handbook will be made available to all persons at the time they are incarcerated or detained in a facility. There may be times when this may be delayed due to the physical or mental condition of the person at time of incarceration. In these cases, the Inmate Handbook will be made available when the person is deemed receptive and cognizant by the detention officer in charge. All policies, standards, procedures, and guidelines are available at each facility to the public or by writing to the Director, Office of Law Enforcement Services.
            [61 FR 34374, July 2, 1996; 61 FR 65473, Dec. 13, 1996]

          Pt. 11
          PART 11—COURTS OF INDIAN OFFENSES AND LAW AND ORDER CODE

              Subpart A—Application; Jurisdiction
              Sec.
              11.100
              Where are Courts of Indian Offenses established?
              11.102
              What is the purpose of this part?
              11.104
              When does this part apply?
              11.106
              Who is an Indian for purposes of this part?
              11.108
              How are tribal ordinances affected by this part?
              11.110
              How are tribal customs affected by this part?
              11.112
              [Reserved]
              11.114
              What is the criminal jurisdiction of the Court of Indian Offenses?
              11.116
              What is the civil jurisdiction of a Court of Indian Offenses?
              11.118
              What are the jurisdictional limitations of the Court of Indian Offenses?

              Subpart B—Courts of Indian Offenses; Personnel; Administration
              11.200
              What is the composition of the Court of Indian Offenses?
              11.201
              How are magistrates for the Court of Indian Offenses appointed?
              11.202
              How is a magistrate of the Court of Indian Offenses removed?
              11.203
              How are the clerks of the Court of Indian Offenses appointed and what are their duties?
              11.204
              Prosecutors.
              11.205
              Are there standards for the appearance of attorneys and lay counselors?
              11.206
              Is the Court of Indian Offenses a court of record?
              11.207
              What are the responsibilities of Bureau of Indian Affairs employees?
              11.208
              May Individual Indian Money accounts be used for payment of judgments?
              11.209
              How does the Court of Indian Offenses dispose of fines?

              Subpart C—Criminal Procedure
              11.300
              Complaints.
              11.301
              Arrests.
              11.302
              Arrest warrants.
              11.303
              Notification of rights prior to custodial interrogation.
              11.304
              Summons in lieu of warrant.
              11.305
              Search warrants.
              11.306
              Search without a warrant.
              11.307
              Disposition of seized property.
              11.308
              Commitments.
              11.309
              Arraignments.
              11.310
              Bail.
              11.311
              Subpoenas.
              11.312
              Witness fees.
              11.313
              Trial procedure.
              11.314
              Jury trials.
              11.315
              Sentencing.
              11.316
              Probation.
              11.317
              Parole.
              11.318
              Extradition.

              Subpart D—Criminal Offenses
              11.400
              Assault.

              11.401
              Recklessly endangering another person.
              11.402
              Terroristic threats.
              11.403
              Unlawful restraint.
              11.404
              False imprisonment.
              11.405
              Interference with custody.
              11.406
              Criminal coercion.
              11.407
              Sexual assault.
              11.408
              Indecent exposure.
              11.409
              Reckless burning or exploding.
              11.410
              Criminal mischief.
              11.411
              Criminal trespass.
              11.412
              Theft.
              11.413
              Receiving stolen property.
              11.414
              Embezzlement.
              11.415
              Fraud.
              11.416
              Forgery.
              11.417
              Extortion.
              11.418
              Misbranding.
              11.419
              Unauthorized use of automobiles and other vehicles.
              11.420
              Tampering with records.
              11.421
              Bad checks.
              11.422
              Unauthorized use of credit cards.
              11.423
              Defrauding secured creditors.
              11.424
              Neglect of children.
              11.425
              Persistent non-support.
              11.426
              Bribery.
              11.427
              Threats and other improper influence in official and political matters.
              11.428
              Retaliation for past official action.
              11.429
              Perjury.
              11.430
              False alarms.
              11.431
              False reports.
              11.432
              Impersonating a public servant.
              11.433
              Disobedience to lawful order of court.
              11.434
              Resisting arrest.
              11.435
              Obstructing justice.
              11.436
              Escape.
              11.437
              Bail jumping.
              11.438
              Flight to avoid prosecution or judicial process.
              11.439
              Witness tampering.
              11.440
              Tampering with or fabricating physical evidence.
              11.441
              Disorderly conduct.
              11.442
              Riot; failure to disperse.
              11.443
              Harassment.
              11.444
              Carrying concealed weapons.
              11.445
              Driving violations.
              11.446
              Cruelty to animals.
              11.447
              Maintaining a public nuisance.
              11.448
              Abuse of office.
              11.449
              Violation of an approved tribal ordinance.
              11.450
              Maximum fines and sentences of imprisonment.
              11.451
              Abuse of psychotoxic chemical solvents.
              11.452
              Possession of a controlled substance.
              11.453
              Prostitution or solicitation.
              11.454
              Domestic violence.

              Subpart E—Civil Actions
              11.500
              Law applicable to civil actions.
              11.501
              Judgments in civil actions.
              11.502
              Costs in civil actions.
              11.503
              Applicable civil procedure.
              11.504
              Applicable rules of evidence.

              Subpart F—Domestic Relations
              11.600
              Marriages.
              11.601
              Marriage licenses.
              11.602
              Solemnization.
              11.603
              Invalid or prohibited marriages.
              11.604
              Declaration of invalidity.
              11.605
              Dissolution.
              11.606
              Dissolution proceedings.
              11.607
              Temporary orders and temporary injunctions.
              11.608
              Final decree; disposition of property; maintenance; child support; custody.
              11.609
              Determination of paternity and support.
              11.610
              Appointment of guardians.
              11.611
              Change of name.

              Subpart G—Probate Proceedings
              11.700
              Probate jurisdiction.
              11.701
              Duty to present will for probate.
              11.702
              Proving and admitting will.
              11.703
              Petition and order to probate estate.
              11.704
              Appointment and duties of executor or administrator.
              11.705
              Removal of executor or administrator.
              11.706
              Appointment and duties of appraiser.
              11.707
              Claims against estate.
              11.708
              Sale of property.
              11.709
              Final account.
              11.710
              Determination of the court.
              11.711
              Descent and distribution.
              11.712
              Closing estate.
              11.713
              Small estates.

              Subpart H—Appellate Proceedings
              11.800
              Jurisdiction of appellate division.
              11.801
              Procedure on appeal.
              11.802
              Judgment against surety.
              11.803
              Record on appeal.
              11.804
              Briefs and memoranda.
              11.805
              Oral argument.
              11.806
              Rules of court.

              Subpart I—Children's Court
              11.900
              Definitions.
              11.901
              The children's court established.
              11.902
              Non-criminal proceedings.
              11.903
              Presenting officer.
              11.904
              Guardian ad litem.
              11.905
              Jurisdiction.
              11.906
              Rights of parties.
              11.907
              Transfer to Court of Indian Offenses.
              11.908
              Court records.
              11.909
              Law enforcement records.
              11.910
              Expungement.
              11.911
              Appeal.
              11.912
              Contempt of court.

              Subpart J—Juvenile Offender Procedure
              11.1000
              Complaint.
              11.1001
              Warrant.
              11.1002
              Custody.
              11.1003
              Law enforcement officer's duties.
              11.1004
              Detention and shelter care.
              11.1005
              Preliminary inquiry.
              11.1006
              Investigation by the presenting officer.
              11.1007
              Petition.
              11.1008
              Date of hearing.
              11.1009
              Summons.
              11.1010
              Adjudicatory hearing.
              11.1011
              Dispositional hearing.
              11.1012
              Dispositional alternatives.
              11.1013
              Modification of dispositional order.
              11.1014
              Medical examination.

              Subpart K—Minor-in-Need-of-Care Procedure
              11.1100
              Complaint.
              11.1101
              Warrant.
              11.1102
              Custody.
              11.1103
              Law enforcement officer's duties.
              11.1104
              Shelter care.
              11.1105
              Preliminary inquiry.
              11.1106
              Investigation by the presenting officer.
              11.1107
              Petition.
              11.1108
              Date of hearing.
              11.1109
              Summons.
              11.1110
              Minor-in-need-of-care adjudicatory hearing.
              11.1111
              Minor-in-need-of-care dispositional hearing.
              11.1112
              Dispositional alternatives.
              11.1113
              Modification of dispositional order.
              11.1114
              Termination.
              11.1115
              Information collection.

              Subpart L—Child protection and domestic violence procedures
              11.1200
              Definitions.
              11.1202
              How to petition for an order of protection.
              11.1204
              Obtaining an emergency order of protection.
              11.1206
              Obtaining a regular (non-emergency) order of protection.
              11.1208
              Service of the protection order.
              11.1210
              Duration and renewal of a regular protection order.
              11.1212
              Consequences of disobedience or interference.
              11.1214
              Relationship of this part to other remedies.

            Authority:
            5 U.S.C. 301; R.S. 463, 25 U.S.C. 2; R.S. 465, 25 U.S.C. 9; 42 Stat. 208, 25 U.S.C. 13; 38 Stat. 586, 25 U.S.C. 200.

            Source:
            58 FR 54411, Oct. 21, 1993, unless otherwise noted.

            Subpart A—Application; Jurisdiction

              Source:
              73 FR 39859, July 11, 2008, unless otherwise noted.

              § 11.100
              Where are Courts of Indian Offenses established?

              (a) A list of the areas in Indian Country where Courts of Indian Offenses are established is available on the Bureau of Indian Affairs website (www.bia.gov) and is published periodically in the Federal Register.

              (b) The Director, Bureau of Indian Affairs, will maintain on the Bureau of Indian Affairs website (www.bia.gov) an updated list of the areas in Indian Country where Courts of Indian Offenses are established and, upon any change to the list, will publish notice of the change in the Federal Register with an updated complete list.
              [85 FR 646, Jan. 7, 2020]

              § 11.102
              What is the purpose of this part?
              It is the purpose of the regulations in this part to provide adequate machinery for the administration of justice for Indian tribes in those areas of Indian country where tribes retain jurisdiction over Indians that is exclusive of State jurisdiction but where tribal courts have not been established to exercise that jurisdiction.

              § 11.104
              When does this part apply?
              (a) The regulations in this part continue to apply to each area in Indian Country listed in accordance with § 11.100 until either:
              (1) BIA and the tribe enter into a contract or compact for the tribe to provide judicial services; or
              (2) The tribe has put into effect a law-and-order code that establishes a court system and that meets the requirements of paragraph (b) of this section.

              (b) When a tribe adopts a legal code and establishes a judicial system, the tribe must notify the Assistant Secretary—Indian Affairs or his or her designee. The law-and-order code must be adopted by the tribe in accordance with its constitution and by-laws or other governing documents.
              [73 FR 39859, July 11, 2008, as amended at 85 FR 646, Jan. 7, 2020]

              § 11.106
              Who is an Indian for purposes of this part?
              For the purposes of the enforcement of the regulations in this part, an Indian is defined as a person who is a member of an Indian tribe which is recognized by the Federal Government as eligible for services from the BIA, and any other individual who is an “Indian” for the purposes of 18 U.S.C. 1152-1153.

              § 11.108
              How are tribal ordinances affected by this part?
              The governing body of each tribe occupying the Indian country over which a Court of Indian Offenses has jurisdiction may enact ordinances which, when approved by the Assistant Secretary—Indian Affairs or his or her designee:
              (a) Are enforceable in the Court of Indian Offenses having jurisdiction over the Indian country occupied by that tribe; and
              (b) Supersede any conflicting regulation in this part.

              § 11.110
              How are tribal customs affected by this part?
              Each Court of Indian Offenses shall apply the customs of the tribe occupying the Indian country over which it has jurisdiction to the extent that they are consistent with the regulations of this part.

              § 11.112
              [Reserved]

              § 11.114
              What is the criminal jurisdiction of the Court of Indian Offenses?
              (a) Except as otherwise provided in this title, each Court of Indian Offenses has jurisdiction over any action by an Indian (hereafter referred to as person) that is made a criminal offense under this part and that occurred within the Indian country subject to the court's jurisdiction.
              (b) No person may be prosecuted, tried or punished for any offense unless the complaint is filed within 5 years after the offense is committed.

              § 11.116
              What is the civil jurisdiction of a Court of Indian Offenses?
              (a) Except as otherwise provided in this title, each Court of Indian Offenses has jurisdiction over any civil action arising within the territorial jurisdiction of the court in which:
              (1) The defendant is an Indian; or
              (2) Other claims, provided at least one party is an Indian.
              (b) Any civil action commenced in a Court of Indian Offenses is barred unless the complaint is filed within 3 years after the right of action first accrues.

              § 11.118
              What are the jurisdictional limitations of the Court of Indian Offenses?
              (a) A Court of Indian Offenses may exercise over a Federal or State official only the same jurisdiction that it could exercise if it were a tribal court. The jurisdiction of Courts of Indian Offenses does not extend to Federal or State employees acting within the scope of their employment.
              (b) A Court of Indian Offenses may not adjudicate an election dispute, take jurisdiction over a suit against a tribe, or adjudicate any internal tribal government dispute, unless the relevant tribal governing body passes a resolution, ordinance, or referendum granting the court jurisdiction.
              (c) In deciding who is a tribal official, BIA will give deference to a decision of the Court of Indian Offenses, acting as a tribal forum by resolution or ordinance of a tribal governing body under paragraph (b) of this section.
              (d) A tribe may not be sued in a Court of Indian Offenses unless its tribal governing body explicitly waives its tribal immunity by tribal resolution or ordinance.

            Subpart B—Courts of Indian Offenses; Personnel; Administration

              § 11.200
              What is the composition of the Court of Indian Offenses?
              (a) Each court shall be composed of a trial division and an appellate division.

              (b) A chief magistrate will be appointed for each court who will, in addition to other judicial duties, be responsible for the administration of the court and the supervision of all court personnel.
              (c) Appeals must be heard by a panel of magistrates who were not involved at the tribal/trial level.
              (d) Decisions of the appellate division are final and are not subject to administrative appeals within the Department of the Interior.
              [58 FR 54411, Oct. 21, 1993, as amended at 73 FR 39860, July 11, 2008]

              § 11.201
              How are magistrates for the Court of Indian Offenses appointed?
              (a) Each magistrate shall be appointed by the Assistant Secretary—Indian Affairs or his or her designee subject to confirmation by a majority vote of the tribal governing body of the tribe occupying the Indian country over which the court has jurisdiction, or, in the case of multi-tribal courts, confirmation by a majority of the tribal governing bodies of the tribes under the jurisdiction of a Court of Indian Offenses.
              (b) Each magistrate shall hold office for a period of four years, unless sooner removed for cause or by reason of the abolition of the office, but is eligible for reappointment.
              (c) No person is eligible to serve as a magistrate of a Court of Indian Offenses who has ever been convicted of a felony or, within one year of the date of service or application, of a misdemeanor.
              (d) No magistrate shall be qualified to act as such wherein he or she has any direct conflicting interest, real or apparent.
              (e) A tribal governing body may set forth such other qualifications for magistrates of the Court of Indian Offenses as it deems appropriate, subject to the approval of the Assistant Secretary—Indian Affairs, or his or her designee.
              (f) A tribal governing body may also recommend requirements for the training of magistrates of the Court of Indian Offenses to the Assistant Secretary—Indian Affairs.

              § 11.202
              How is a magistrate of the Court of Indian Offenses removed?
              Any magistrate of a Court of Indian Offenses may be suspended, dismissed or removed by the Assistant Secretary—Indian Affairs, or his or her designee, for cause, upon the written recommendation of the tribal governing body, and, in the case of multi-tribal courts, upon the recommendation of a majority of the tribal governing bodies of the tribes under the jurisdiction of a Court of Indian Offenses, or pursuant to his or her own discretion.

              § 11.203
              How are the clerks of the Court of Indian Offenses appointed and what are their duties?
              (a) Except as may otherwise be provided in a contract with the tribe occupying the Indian country over which the court has jurisdiction, the chief magistrate shall appoint a clerk of court for the Court of Indian Offenses within his or her jurisdiction, subject to the superintendent's approval.
              (b) The clerk shall render assistance to the court, to local law enforcement officers and to individual members of the tribe in the drafting of complaints, subpoenas, warrants, commitments, and other documents incidental to the functions of the court. The clerk shall also attend and keep a record of all proceedings of the court and manage all monies received by the court.
              (c) The clerk of court shall forward any monies received on judgments due to the person, agency, or corporation to which entitled, within 30 days unless directed otherwise by a magistrate of the Court of Indian Offenses.

              § 11.204
              Prosecutors.
              Except as may otherwise be provided in a contract with the tribe occupying the Indian country over which the court has jurisdiction, the superintendent shall appoint a prosecutor for each Court of Indian Offenses within his or her jurisdiction.

              § 11.205
              Are there standards for the appearance of attorneys and lay counselors?
              (a) No defendant in a criminal proceeding shall be denied the right to counsel.

              (b) The chief magistrate shall prescribe in writing standards governing the admission and practice in the Court of Indian Offenses of professional attorneys and lay counselors.

              § 11.206
              Is the Court of Indian Offenses a court of record?
              (a) Each Court of Indian Offenses shall keep a record of all proceedings of the court containing the title of the case, the names of the parties, the complaint, all pleadings, the names and addresses of all witnesses, the date of any hearing or trial, the name of any magistrate conducting such hearing or trial, the findings of the court or jury, the judgment and any other information the court determines is important to the case.
              (b) The record in each case shall be available for inspection by the parties to the case.
              (c) Except for cases in which a juvenile is a party or the subject of a proceeding, and for cases whose records have been sealed by the court, all case records shall be available for inspection by the public.
              (d) Such court records are part of the records of the BIA agency having jurisdiction over the Indian country where the Court of Indian Offenses is located and shall be protected in accordance with 44 U.S.C. 3102.

              § 11.207
              What are the responsibilities of Bureau of Indian Affairs employees?
              (a) No employee of the BIA may obstruct, interfere with, or control the functions of any Court of Indian Offenses, or influence such functions in any manner except as permitted by Federal statutes or the regulations in this part or in response to a request for advice or information from the court.
              (b) Employees of the BIA shall assist the court, upon its request, in the preparation and presentation of facts in the case and in the proper treatment of individual offenders.

              § 11.208
              May Individual Indian Money accounts be used for payment of judgments?
              (a) Any Court of Indian Offenses may make application to the superintendent who administers the individual Indian money account of a defendant who has failed to satisfy a money judgment from the court to obtain payment of the judgment from funds in the defendant's account. The court shall certify the record of the case to the superintendent. If the superintendent so directs, the disbursing agent shall pay over to the injured party the amount of the judgment or such lesser amount as may be specified by the superintendent.
              (b) A judgment of a Court of Indian Offenses shall be considered a lawful debt in all proceedings held by the Department of the Interior or by a Court of Indian Offenses to distribute decedents' estates.

              § 11.209
              How does the Court of Indian Offenses dispose of fines?
              All money fines imposed for the commission of an offense shall be in the nature of an assessment for the payment of designated court expenses. The fines assessed shall be paid over by the clerk of the court to the disbursing agent of the reservation for deposit as a “special deposit, court funds” to the disbursing agent's official credit in the Treasury of the United States. The disbursing agent shall withdraw such funds, in accordance with existing regulations, upon order of the clerk of the court signed by a judge of the court for the payment of specified expenses. The disbursing agent and the clerk of the court shall keep an account of all such deposits and withdrawals available for public inspection.

            Subpart C—Criminal Procedure

              § 11.300
              Complaints.
              (a) A complaint is a written statement of the essential facts charging that a named individual(s) has committed a particular offense. All criminal prosecutions shall be initiated by a complaint filed with the court by a law enforcement officer and sworn to by a person having personal knowledge of the offense.
              (b) Complaints shall contain:
              (1) The signature of the complaining witness, or witnesses, sworn before a magistrate, a court clerk, a prosecutor, or any law enforcement officer.

              (2) A written statement by the complaining witness or witnesses having personal knowledge of the violation, describing in ordinary language the nature of the offense committed including the time and place as nearly as may be ascertained.
              (3) The name or description of the person alleged to have committed the offense.
              (4) A description of the offense charged and the section of the code allegedly violated.
              (c) Complaints must be submitted without unnecessary delay by a law enforcement officer to the prosecutor and, if he or she approves, to a judge to determine whether an arrest warrant or summons should be issued.
              (d) When an accused has been arrested without a warrant, a complaint shall be filed forthwith with the court for review as to whether probable cause exists to hold the accused, and in no instance shall a complaint be filed later than at the time of arraignment.

              § 11.301
              Arrests.
              (a) Arrest is the taking of a person into police custody in order that he or she may be held to answer for a criminal offense.
              (b) No law enforcement officer shall arrest any person for a criminal offense except when:
              (1) The officer shall have a warrant signed by a magistrate commanding the arrest of such person, or the officer knows for a certainty that such a warrant has been issued; or
              (2) The offense shall occur in the presence of the arresting officer; or
              (3) The officer shall have probable cause to believe that the person arrested has committed an offense.

              § 11.302
              Arrest warrants.
              (a) Each magistrate of a Court of Indian Offenses shall have the authority to issue warrants to apprehend any person the magistrate has probable cause to believe has committed a criminal offense in violation of the regulations under this part based on a written complaint filed with the court by a law enforcement officer and bearing the signature of the complainant.
              (b) The arrest warrant shall contain the following information:
              (1) Name or description and address, if known, of the person to be arrested.
              (2) Date of issuance of the warrant.
              (3) Description of the offense charged.
              (4) Signature of the issuing magistrate.
              (c) Such warrants may be served only by a BIA or tribal police officer or other officer commissioned to enforce the regulations of this part.

              § 11.303
              Notification of rights prior to custodial interrogation.
              Prior to custodial interrogation, the suspect shall be advised of the following rights:
              (a) That he or she has the right to remain silent.
              (b) That any statements made by him or her may be used against him or her in court.
              (c) That he or she has the right to obtain counsel and, if indigent, to have counsel appointed for him/her.

              § 11.304
              Summons in lieu of warrant.
              (a) When otherwise authorized to arrest a suspect, a law enforcement officer or a magistrate may, in lieu of a warrant, issue a summons commanding the accused to appear before the Court of Indian Offenses at a stated time and place and answer to the charge.
              (b) The summons shall contain the same information as a warrant, except that it may be signed by a police officer.
              (c) The summons shall state that if a defendant fails to appear in response to a summons, a warrant for his or her arrest shall be issued.
              (d) The summons, together with a copy of the complaint, shall be served upon the defendant by delivering a copy to the defendant personally or by leaving a copy at his or her usual residence or place of business with any person 18 years of age or older who also resides or works there. Service shall be made by an authorized law enforcement officer, who shall file with the record of the case a form indicating when the summons was served.

              § 11.305
              Search warrants.

              (a) Each magistrate of a Court of Indian Offenses shall have the authority to issue a warrant for the search of premises and for the seizure of physical evidence of a criminal violation under the regulations of this part located within the Indian country over which the court has jurisdiction.
              (b) No warrant for search or seizure may be issued unless it is based on a written and signed statement establishing, to the satisfaction of the magistrate, that probable cause exists to believe that the search will lead to discovery of evidence of a criminal violation under the regulations of this part.
              (c) No warrant for search or seizure shall be valid unless it contains the name or description of the person, vehicle, or premises to be searched, describes the evidence to be seized, and bears the signature of the magistrate who issued it.
              (d) Warrants may be executed only by a BIA or tribal police officer or other official commissioned to enforce the regulations under this part. The executing officer shall return the warrant to the Court of Indian Offenses within the time limit shown on the face of the warrant, which in no case shall be longer than ten (10) days from the date of issuance. Warrants not returned within such time limits shall be void.

              § 11.306
              Search without a warrant.
              No law enforcement officer shall conduct any search without a valid warrant except:
              (a) Incident to making a lawful arrest; or
              (b) With the voluntary consent of the person being searched; or
              (c) When the search is of a moving vehicle and the officer has probable cause to believe that it contains contraband, stolen property, or property otherwise unlawfully possessed.

              § 11.307
              Disposition of seized property.
              (a) The officer serving and executing a warrant shall make an inventory of all seized property, and a copy of such inventory shall be left with every person from whom property is seized.
              (b) A hearing shall be held by the Court of Indian Offenses to determine the disposition of all seized property. Upon satisfactory proof of ownership, the property shall be delivered immediately to the owner, unless such property is contraband or is to be used as evidence in a pending case. Property seized as evidence shall be returned to the owner after final judgment. Property confiscated as contraband shall be destroyed or otherwise lawfully disposed of as ordered by the Court of Indian Offenses.

              § 11.308
              Commitments.
              No person may be detained, jailed or imprisoned under the regulations of this part for longer than 48 hours unless the Court of Indian Offenses issues a commitment bearing the signature of a magistrate. A temporary commitment shall be issued for each person held before trial. A final commitment shall be issued for each person sentenced to jail after trial.

              § 11.309
              Arraignments.
              (a) Arraignment is the bringing of an accused before the court, informing him or her of his or her rights and of the charge(s) against him or her, receiving the plea, and setting conditions of pretrial release as appropriate in accordance with this part.
              (b) Arraignment shall be held in open court without unnecessary delay after the accused is taken into custody and in no instance shall arraignment be later than the next regular session of court.
              (c) Before an accused is required to plead to any criminal charges the magistrate shall:
              (1) Read the complaint to the accused and determine that he or she understands it and the section(s) of this part that he or she is charged with violating, including the maximum authorized penalty; and
              (2) Advise the accused that he or she has the right to remain silent, to be tried by a jury if the offense charged is punishable by imprisonment, to be represented by counsel (which shall be paid for by the government if the accused is indigent) and that the arraignment will be postponed should he or she desire to consult with counsel.
              (d) The magistrate shall call upon the defendant to plead to the charge:
              (1) If the accused pleads “not guilty” to the charge, the magistrate shall then inform the accused of the trial date and set conditions for release prior to trial.

              (2) If the accused pleads “guilty” to the charge, the magistrate shall accept the plea only if he or she is satisfied that the plea is made voluntarily and that the accused understands the consequences of the plea, including the rights waived by the plea. The magistrate may then impose sentence or defer sentencing for a reasonable time in order to obtain any information he or she deems necessary for the imposition of a just sentence. The accused shall be afforded an opportunity to be heard by the court prior to sentencing.
              (3) If the accused refuses to plead, the judge shall enter a plea of “not guilty” on his or her behalf.
              (e) The court may, in its discretion, allow a defendant to withdraw a plea of guilty if it appears that the interest of justice would be served by doing so.

              § 11.310
              Bail.
              (a) Each person charged with a criminal offense under this part shall be entitled to release from custody pending trial under whichever one or more of the following conditions is deemed necessary to reasonably assure the appearance of the person at any time lawfully required:
              (1) Release on personal recognizance upon execution by the accused of a written promise to appear at trial and all other lawfully required times;
              (2) Release to the custody of a designated person or organization agreeing to assure the accused's appearance;
              (3) Release with reasonable restrictions on the travel, association, or place of residence of the accused during the period of release;
              (4) Release after deposit of a bond or other sufficient collateral in an amount specified by the magistrate or a bail schedule;
              (5) Release after execution of a bail agreement by two responsible members of the community; or
              (6) Release upon any other condition deemed reasonably necessary to assure the appearance of the accused as required.
              (b) Any law enforcement officer authorized to do so by the court may admit an arrested person to bail pending trial pursuant to a bail schedule and conditions prepared by the court.
              (c) A convicted person may be released from custody pending appeal on such conditions as the magistrate determines will reasonably assure the appearance of the accused unless the magistrate determines that release of the accused is likely to pose a danger to the community, the accused, or any other person.
              (d) The Court of Indian Offenses may revoke its release of the defendant and order him or her committed at any time where it determines that the conditions of release will not reasonably assure the appearance of the defendant, or if any conditions of release have been violated.

              § 11.311
              Subpoenas.
              (a) Upon request of any party, the court shall issue subpoenas to compel the testimony of witnesses, or the production of books, records, documents or any other physical evidence relevant to the determination of the case and not an undue burden on the person possessing the evidence. The clerk of the court may act on behalf of the court and issue subpoenas which have been signed either by the clerk of the court or by a magistrate of the Court of Indian Offenses and which are to be served within Indian country over which the Court of Indian Offenses has jurisdiction.
              (b) A subpoena shall bear the signature of the chief magistrate of the Court of Indian Offenses, and it shall state the name of the court, the name of the person or description of the physical evidence to be subpoenaed, the title of the proceeding, and the time and place where the witness is to appear or the evidence is to be produced.
              (c) A subpoena may be served at any place but any subpoena to be served outside of the Indian country over which the Court of Indian Offenses has jurisdiction shall be issued personally by a magistrate of the Court of Indian Offenses.

              (d) A subpoena may be served by any law enforcement officer or other person appointed by the court for such purpose. Service of a subpoena shall be made by delivering a copy of it to the person named or by leaving a copy at his or her place of residence or business with any person 18 years of age or older who also resides or works there.

              (e) Proof of service of the subpoena shall be filed with the clerk of the court by noting on the back of the subpoena the date, time and place that it was served and noting the name of the person to whom it was delivered. Proof of service shall be signed by the person who actually served the subpoena.
              (f) In the absence of a justification satisfactory to the court, a person who fails to obey a subpoena may be deemed to be in contempt of court and a bench warrant may be issued for his or her arrest.

              § 11.312
              Witness fees.
              (a) Each fact witness answering a subpoena is entitled to a fee of not less than the hourly minimum wage scale established by 29 U.S.C. 206(a)(1) and any of its subsequent revisions, plus actual cost of travel. Each fact witness testifying at a hearing shall receive pay for a full day (eight hours) plus travel allowance.
              (b) The Court of Indian Offenses may order any party calling a witness to testify without a subpoena to compensate the witness for actual traveling and living expenses incurred in testifying.
              (c) If the Court of Indian Offenses finds that a complaint was not filed in good faith but with a frivolous or malicious intent, it may order the complainant to reimburse the court for expenditures incurred under this section, and such order may constitute a judgment upon which execution may levy.

              § 11.313
              Trial procedure.
              (a) The time and place of court sessions, and all other details of judicial procedure shall be set out in rules of court approved by the chief magistrate of the Court of Indian Offenses.
              (b) Courts of Indian Offenses shall be bound by the Federal Rules of Evidence, except insofar as such rules are superseded by order of the court or by the existence of inconsistent tribal rules of evidence.

              § 11.314
              Jury trials.
              (a) A defendant has a right, upon demand, to a jury trial in any criminal case:
              (1) That is punishable by a maximum sentence of one year incarceration; or
              (2) In which the prosecutor informs the court before the case comes to trial that a jail sentence will be sought.
              (b) If the prosecutor informs the court that no sentence of incarceration will be sought, the court may not impose a sentence of incarceration for the offense.
              (c) A jury must consist of not less than six residents of the vicinity in which trial is held, selected from a list of eligible jurors prepared each year by the court.
              (1) An eligible juror must:
              (i) Be at least 18 years of age;
              (ii) Not have been convicted of a felony; and
              (iii) Be otherwise qualified according to standards established by the Court of Indian Offenses under its general rulemaking authority.
              (2) Any party may challenge without cause a maximum of three members of the jury panel chosen under this section.
              (d) The magistrate shall instruct the jury with regard to the applicable law and the jury shall decide all questions of fact on the basis of the law.
              (e) The jury shall deliberate in secret and return a verdict of guilty or not guilty. Six out of the eight jurors must concur to render a verdict.
              (f) Each juror who serves on a jury is entitled to a fee not less than the hourly minimum wage scale established by 29 U.S.C. 206(a)(1), and any of its subsequent revisions, plus mileage not to exceed the maximum rate per mile established by the Federal Government of jurors and witnesses. Each juror shall receive pay for a full day (eight hours) for any portion of a day served, plus travel allowance.
              [58 FR 54411, Oct. 21, 1993, as amended at 73 FR 39861, July 11, 2008]

              § 11.315
              Sentencing.
              (a) Any person who has been convicted in a Court of Indian Offenses of a criminal offense under the regulations of this part may be sentenced to one or a combination of the following penalties:

              (1) Imprisonment for a period up to the maximum permitted by the section defining the offense, but in no case for longer than one year; and

              (2) A fine in an amount up to the maximum permitted by the section defining the offense, but in no case greater than $5,000.
              (b) In addition to or in lieu of the penalties provided in paragraph (a) of this section, the court may require a convicted offender who has inflicted injury upon the person or property of another to make restitution or compensate the injured person by means of the surrender of property, payment of money damages, or the performance of any other act for the benefit of the injured party.
              (c) If, solely because of indigence, a convicted offender is unable to pay forthwith a money fine assessed under any applicable section, the court shall allow him or her a reasonable period of time to pay the entire sum or allow him or her to make reasonable installment payments to the clerk of the court at specified intervals until the entire sum is paid. If the offender defaults on such payments the court may find him or her in contempt of court and imprison him or her accordingly.
              [58 FR 54411, Oct. 21, 1993, as amended at 73 FR 39861, July 11, 2008]

              § 11.316
              Probation.
              (a) Where a sentence of imprisonment has been imposed on a convicted offender, the Court of Indian Offenses may, in its discretion, suspend the serving of such sentence and release the person on probation under any reasonable conditions deemed appropriate by the court, provided that the period of probation shall not exceed one year.
              (b) Any person who violates the terms of his or her probation may be required by the court to serve the sentence originally imposed or such part of it as the court may determine to be suitable giving consideration to all the circumstances, provided that such revocation of probation shall not be ordered without a hearing before the court at which the offender shall have the opportunity to explain his or her actions.

              § 11.317
              Parole.
              (a) Any person sentenced by the court of detention or labor shall be eligible for parole at such time and under such reasonable conditions as set by the Court of Indian Offenses.
              (b) Any person who violates the conditions of his or her parole may be required by the court to serve the whole original sentence, provided that such revocation or parole shall not be ordered without a hearing before the court at which the offender shall have the opportunity to explain his or her actions.

              § 11.318
              Extradition.
              Any Court of Indian Offenses may order delivery to the proper state, tribal or BIA law enforcement authorities of any person found within the jurisdiction of the court, who is charged with an offense in another jurisdiction. Prior to delivery to the proper officials, the accused shall be accorded a right to contest the propriety of the court's order in a hearing before the court.

            Subpart D—Criminal Offenses

              § 11.400
              Assault.
              (a) A person is guilty of assault if he or she:
              (1) Attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or
              (2) Negligently causes bodily injury to another with a deadly weapon; or
              (3) Attempts by physical menace to put another in fear of imminent serious bodily injury.
              (b) Assault is a misdemeanor unless committed in a fight or scuffle entered into by mutual consent, in which case it is a petty misdemeanor.

              § 11.401
              Recklessly endangering another person.
              A person commits a misdemeanor if he or she recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury. Recklessness and danger shall be presumed where a person knowingly points a firearm at or in the direction of another person, whether or not the actor believed the firearm to be loaded.
              [58 FR 54411, Oct. 21, 1993; 58 FR 58729, Nov. 3, 1993]

              § 11.402
              Terroristic threats.
              A person is guilty of a misdemeanor if he or she threatens to commit any crime of violence with purpose to terrorize another or to cause evacuation of a building, place of assembly or facility of public transportation, or otherwise to cause serious public inconvenience or in reckless disregard of the risk of causing such terror or inconvenience.

              § 11.403
              Unlawful restraint.
              A person commits a misdemeanor if he or she knowingly:
              (a) Restrains another unlawfully in circumstances exposing him or her to risk of serious bodily injury; or
              (b) Holds another in a condition of involuntary servitude.

              § 11.404
              False imprisonment.
              A person commits a misdemeanor if he or she knowingly restrains another unlawfully so as to interfere substantially with his or her liberty.

              § 11.405
              Interference with custody.
              (a) Custody of children. A person commits a misdemeanor if he or she knowingly or recklessly takes or entices any child under the age of 18 from the custody of his or her parent, guardian or other lawful custodian, when he or she has no privilege to do so.
              (b) Custody of committed person. A person is guilty of a misdemeanor if he or she knowingly or recklessly takes or entices any committed person away from lawful custody when he or she does not have the privilege to do so. Committed person means, in addition to anyone committed under judicial warrant, any orphan, neglected or delinquent child, mentally defective or insane person, or other dependent or incompetent person entrusted to another's custody by or through a recognized social agency or otherwise by authority of law.

              § 11.406
              Criminal coercion.
              (a) A person is guilty of criminal coercion if, with purpose to unlawfully restrict another's freedom of action to his or her detriment, he or she threatens to:
              (1) Commit any criminal offense; or
              (2) Accuse anyone of a criminal offense; or
              (3) Take or withhold action as an official, or cause an official to take or withhold action.
              (b) Criminal coercion is classified as a misdemeanor.

              § 11.407
              Sexual assault.
              (a) A person who has sexual contact with another person not his or her spouse, or causes such other person to have sexual contact with him or her, is guilty of sexual assault as a misdemeanor, if:
              (1) He or she knows that the conduct is offensive to the other person; or
              (2) He or she knows that the other person suffers from a mental disease or defect which renders him or her incapable of appraising the nature or his or her conduct; or
              (3) He or she knows that the other person is unaware that a sexual act is being committed; or
              (4) The other person is less than 10 years old; or
              (5) He or she has substantially impaired the other person's power to appraise or control his or her conduct, by administering or employing without the other's knowledge drugs, intoxicants or other means for the purpose of preventing resistance; or
              (6) The other person is less than 16 years old and the actor is at least four years older than the other person; or
              (7) The other person is less than 21 years old and the actor is his or her guardian or otherwise responsible for general supervision of his or her welfare; or
              (8) The other person is in custody of law or detained in a hospital or other institution and the actor has supervisory or disciplinary authority over him or her.
              (b) Sexual contact is any touching of the sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual desire, or for the purpose of abusing, humiliating, harassing, or degrading the victim.

              § 11.408
              Indecent exposure.

              A person commits a misdemeanor if he or she exposes his or her genitals under circumstances in which he or she knows his or her conduct is likely to cause affront or alarm.

              § 11.409
              Reckless burning or exploding.
              A person commits a misdemeanor if he or she purposely starts a fire or causes an explosion, whether on his or her property or another's, and thereby recklessly:
              (a) Places another person in danger of death or bodily injury; or
              (b) Places a building or occupied structure of another in danger of damage or destruction.

              § 11.410
              Criminal mischief.
              (a) A person is guilty of criminal mischief if he or she:
              (1) Damages tangible property of another purposely, recklessly, or by negligence in the employment of fire, explosives, or other dangerous means; or
              (2) Purposely or recklessly tampers with tangible property of another so as to endanger person or property; or
              (3) Purposely or recklessly causes another to suffer pecuniary loss by deception or threat.
              (b) Criminal mischief is a misdemeanor if the actor purposely causes pecuniary loss in excess of $100, or a petty misdemeanor if he or she purposely or recklessly causes pecuniary loss in excess of $25. Otherwise, criminal mischief is a violation.

              § 11.411
              Criminal trespass.
              (a) A person commits an offense if, knowing that he or she is not licensed or privileged to do so, he or she enters or surreptitiously remains in any building or occupied structure. An offense under this subsection is a misdemeanor if it is committed in a dwelling at night. Otherwise it is a petty misdemeanor.
              (b) A person commits an offense if, knowing that he or she is not licensed or privileged to do so, he or she enters or remains in any place as to which notice against trespass is given by:
              (1) Actual communication to the actor; or
              (2) Posting in a manner prescribed by law or reasonably likely to come to the attention of intruders; or
              (3) Fencing or other enclosure manifestly designed to exclude intruders.
              (c) An offense under this section constitutes a petty misdemeanor if the offender defies an order to leave personally communicated to him or her by the owner of the premises or other authorized person. Otherwise it is a violation.

              § 11.412
              Theft.
              A person who, without permission of the owner, shall take, shoplift, possess or exercise unlawful control over movable property not his or her own or under his or her control with the purpose to deprive the owner thereof or who unlawfully transfers immovable property of another or any interest therein with the purpose to benefit himself or herself or another not entitled thereto shall be guilty of theft, a misdemeanor.

              § 11.413
              Receiving stolen property.

              A person is guilty of receiving stolen property, a misdemeanor, if he or she purposely receives, retains, or disposes of movable property of another knowing that it has been stolen, or believing that it has probably been stolen, unless the property is received, retained, or disposed with purpose to restore it to the owner. Receiving means acquiring possession, control or title, or lending on the security of the property.

              § 11.414
              Embezzlement.
              A person who shall, having lawful custody of property not his or her own, appropriate the same to his or her own use, with intent to deprive the owner thereof, shall be guilty of embezzlement, a misdemeanor.

              § 11.415
              Fraud.
              A person who shall by willful misrepresentation or deceit, or by false interpreting, or by the use of false weights or measures obtain any money or other property, shall be guilty of fraud, a misdemeanor.

              § 11.416
              Forgery.

              (a) A person is guilty of forgery, a misdemeanor, if, with purpose to defraud or injure anyone, or with knowledge that he or she is facilitating fraud or injury to be perpetrated by anyone, he or she:

              (1) Alters, makes, completes, authenticates, issues or transfers any writing of another without his or her authority; or
              (2) Utters any writing which he or she knows to be forged in a manner above specified.
              (b) “Writing” includes printing or any other method of recording information, money, coins, tokens, stamps, seals, credit cards, badges, trademarks, and other symbols of value, right, privilege, or identification.

              § 11.417
              Extortion.
              A person who shall willfully, by making false charges against another person or by any other means whatsoever, extort or attempt to extort any moneys, goods, property, or anything else of any value, shall be guilty of extortion, a misdemeanor.

              § 11.418
              Misbranding.
              A person who shall knowingly and willfully misbrand or alter any brand or mark on any livestock of another person, shall be guilty of a misdemeanor.

              § 11.419
              Unauthorized use of automobiles and other vehicles.
              A person commits a misdemeanor if he or she operates another person's automobile, airplane, motorcycle, motorboat, or other motor-propelled vehicle without consent of the owner. It is an affirmative defense to prosecution under this section that the actor reasonably believed that the owner would have consented to the operation had he or she known of it.

              § 11.420
              Tampering with records.
              A person commits a misdemeanor if, knowing that he or she has no privilege to do so, he or she falsifies, destroys, removes or conceals any writing or record, with purpose to deceive or injure anyone or to conceal any wrongdoing.

              § 11.421
              Bad checks.
              (a) A person who issues or passes a check or similar sight order for the payment of money, knowing that it will not be honored by the drawee, commits a misdemeanor.
              (b) For the purposes of this section, an issuer is presumed to know that the check or order would not be paid, if:
              (1) The issuer had no account with the drawee at the time the check or order was issued; or
              (2) Payment was refused by the drawee for lack of funds, upon presentation within 30 days after issue, and the issuer failed to make good within 10 days after receiving notice of that refusal.

              § 11.422
              Unauthorized use of credit cards.
              (a) A person commits a misdemeanor if he or she uses a credit card for the purpose of obtaining property or services with knowledge that:
              (1) The card is stolen or forged; or
              (2) The card has been revoked or cancelled; or
              (3) For any other reason his or her use of the card is unauthorized by the issuer.
              (b) Credit card means a writing or other evidence of an undertaking to pay for property or services delivered or rendered to or upon the order of a designated person or bearer.

              § 11.423
              Defrauding secured creditors.
              A person commits a misdemeanor if he or she destroys, conceals, encumbers, transfers or otherwise deals with property subject to a security interest with purpose to hinder that interest.

              § 11.424
              Neglect of children.
              (a) A parent, guardian, or other person supervising the welfare of a child under 18 commits a misdemeanor if he or she knowingly endangers the child's welfare by violating a duty of care, protection or support.
              (b) A parent, guardian, or other person supervising the welfare of a child under 18 commits a violation if he or she neglects or refuses to send the child to school.

              § 11.425
              Persistent non-support.
              A person commits a misdemeanor if he or she persistently fails to provide support which he or she can provide and which he or she knows he or she is legally obliged to provide to a spouse, child or other dependent.

              § 11.426
              Bribery.
              (a) A person is guilty of bribery, a misdemeanor, if he or she offers, confers or agrees to confer upon another, or solicits, accepts or agrees to accept from another:
              (1) Any pecuniary benefit as consideration for the recipient's decision, opinion, recommendation, vote or other exercise of discretion as a public servant, party official or voter; or
              (2) Any benefit as consideration for the recipient's decision, vote, recommendation or other exercise of official discretion in a judicial or administrative proceeding; or
              (3) Any benefit as consideration for a violation of a known legal duty as a public servant or party official.
              (b) It is no defense to prosecution under this section that a person whom the actor sought to influence was not qualified to act in the desired way, whether because he or she had not yet assumed office, or lacked jurisdiction, or for any other reason.

              § 11.427
              Threats and other improper influence in official and political matters.
              (a) A person commits a misdemeanor if he or she:
              (1) Threatens unlawful harm to any person with purpose to influence his or her decision, vote or other exercise of discretion as a public servant, party official or voter; or
              (2) Threatens harm to any public servant with purpose to influence his decision, opinion, recommendation, vote or other exercise of discretion in a judicial or administrative proceeding; or
              (3) Threatens harm to any public servant with purpose to influence his decision, opinion, recommendation, vote or other exercise of discretion in a judicial or administrative proceeding; or
              (b) It is no defense to prosecution under this section that a person whom the actor sought to influence was not qualified to act in the desired way, whether because he or she had not yet assumed office, or lacked jurisdiction, or for any other reason.

              § 11.428
              Retaliation for past official action.
              A person commits a misdemeanor if he or she harms another by any unlawful act in retaliation for anything lawfully done by the latter in the capacity of public servant.

              § 11.429
              Perjury.
              A person is guilty of perjury, a misdemeanor, if in any official proceeding he or she makes a false statement under oath or equivalent affirmation, or swears or affirms the truth of a statement previously made, when the statement is material and he or she does not believe it to be true.
              (a) No person shall be guilty of an offense under this section if he or she retracted the falsification in the course of the proceeding in which it was made before it became manifest that the falsification was or would be exposed and before the falsification substantially affected the proceeding.
              (b) No person shall be convicted of an offense under this section where proof of falsity rests solely upon contradiction by testimony of a single person other than the defendant.

              § 11.430
              False alarms.
              A person who knowingly causes a false alarm of fire or other emergency to be transmitted to, or within any organization, official or volunteer, for dealing with emergencies involving danger to life or property commits a misdemeanor.

              § 11.431
              False reports.
              (a) A person who knowingly gives false information to any law enforcement officer with the purpose to implicate another commits a misdemeanor.
              (b) A person commits a petty misdemeanor if he or she:
              (1) Reports to law enforcement authorities an offense or other incident within their concern knowing that it did not occur; or
              (2) Pretends to furnish such authorities with information relating to an offense or incident when he or she knows he or she has no information relating to such offense or incident.

              § 11.432
              Impersonating a public servant.
              A person commits a misdemeanor if he or she falsely pretends to hold a position in the public service with purpose to induce another to submit to such pretended official authority or otherwise to act in reliance upon that pretense to his or her prejudice.

              § 11.433
              Disobedience to lawful order of court.
              A person who willfully disobeys any order, subpoena, summons, warrant or command duly issued, made or given by any Court of Indian Offenses or any officer thereof is guilty of a misdemeanor.

              § 11.434
              Resisting arrest.
              A person commits a misdemeanor if, for the purpose of preventing a public servant from effecting a lawful arrest or discharging any other duty, he or she creates a substantial risk of bodily injury to the public servant or anyone else, or employs means justifying or requiring substantial force to overcome the resistance.

              § 11.435
              Obstructing justice.
              A person commits a misdemeanor if, with purpose to hinder the apprehension, prosecution, conviction or punishment of another for a crime, he or she harbors or conceals the other, provides a weapon, transportation, disguise or other means of escape, warns the other of impending discovery, or volunteers false information to a law enforcement officer.

              § 11.436
              Escape.
              A person is guilty of the offense of escape, a misdemeanor, if he or she unlawfully removes himself or herself from official detention or fails to return to official detention following temporary leave granted for a specific purpose or limited period.

              § 11.437
              Bail jumping.
              A person set at liberty by court order, with or without bail, upon condition that he or she will subsequently appear at a specified time or place, commits a misdemeanor if, without lawful excuse, he or she fails to appear at that time and place.

              § 11.438
              Flight to avoid prosecution or judicial process.
              A person who shall absent himself or herself from the Indian country over which the Court of Indian Offenses exercises jurisdiction for the purpose of avoiding arrest, prosecution or other judicial process shall be guilty of a misdemeanor.

              § 11.439
              Witness tampering.
              (a) A person commits a misdemeanor if, believing that an official proceeding or investigation is pending or about to be instituted, he or she attempts to induce or otherwise cause a witness or informant to:
              (1) Testify or inform falsely; or
              (2) Withhold any testimony, information, document or thing; or
              (3) Elude legal process summoning him or her to supply evidence; or
              (4) Absent himself or herself from any proceeding or investigation to which he or she has been legally summoned.
              (b) A person commits a misdemeanor if he or she harms another by any unlawful act in retaliation for anything lawfully done in the capacity of witness or informant.

              § 11.440
              Tampering with or fabricating physical evidence.
              A person commits a misdemeanor if, believing that an official proceeding or investigation is pending or about to be instituted, he or she:
              (a) Alters, destroys, conceals, or removes any record, document or thing with purpose to impair its verity or availability in such proceeding or investigation; or
              (b) Makes, presents or uses any record, document or thing knowing it to be false and with the purpose to mislead a public servant who is or may be engaged in such proceeding or investigation.

              § 11.441
              Disorderly conduct.

              (a) A person is guilty of disorderly conduct if, with purpose to cause public inconvenience, annoyance or alarm or recklessly creating a risk thereof, he or she:

              (1) Engages in fighting or threatening, or in violent or tumultuous behavior;
              (2) Makes unreasonable noise or offensively coarse utterance, gesture or display, or addresses abusive language to any person present; or
              (3) Creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor.
              (b) Public means affecting or likely to affect persons in a place to which the public has access; among the places included are highways, schools, prisons, apartments, places of business or amusement, or any neighborhood.
              (c) An offense under this section is a petty misdemeanor if the actor's purpose is to cause substantial harm or serious inconvenience, or if he or she persists in disorderly conduct after reasonable warning or request to desist. Otherwise, disorderly conduct is a violation.

              § 11.442
              Riot; failure to disperse.
              (a) A person is guilty of riot, a misdemeanor, if he or she participates with two or more others in a course of disorderly conduct:
              (1) With purpose to commit or facilitate the commission of a felony or misdemeanor; or
              (2) With purpose to prevent or coerce official action; or
              (3) When the actor or any other participant to the knowledge of the actor uses or plans to use a firearm or other deadly weapon.
              (b) Where three or more persons are participating in a course of disorderly conduct likely to cause substantial harm or serious inconvenience, a law enforcement officer may order the participants and others in the immediate vicinity to disperse. A person who refuses or knowingly fails to obey such an order commits a misdemeanor.

              § 11.443
              Harassment.
              A person commits a petty misdemeanor if, with purpose to harass another, he or she:
              (a) Makes a telephone call without purpose or legitimate communication; or
              (b) Insults, taunts or challenges another in a manner likely to provoke violent or disorderly response; or
              (c) Makes repeated communications anonymously or at extremely inconvenient hours, or in offensively coarse language; or
              (d) Subjects another to an offensive touching; or
              (e) Engages in any other course of alarming conduct serving no legitimate purpose.

              § 11.444
              Carrying concealed weapons.
              A person who goes about in public places armed with a dangerous weapon concealed upon his or her person is guilty of a misdemeanor unless he or she has a permit to do so signed by a magistrate of the Court of Indian Offenses.

              § 11.445
              Driving violations.
              (a) A person who shall operate any vehicle in a manner dangerous to the public safety is guilty of reckless driving, a petty misdemeanor, unless it is committed while under the influence of alcohol, in which case it is a misdemeanor.
              (b) A person who shall drive, operate or be in physical control of any motor vehicle when his or her alcohol concentration is 0.10 or more shall be guilty of driving while intoxicated, a misdemeanor.
              (c) Any person who drives, operates, or is in physical control of a motor vehicle within the Indian country under the jurisdiction of a Court of Indian Offenses consents to a chemical test of his or her blood, breath, or urine for the purpose of determining the presence of alcohol, to be administered at the direction of a law enforcement officer. The test may be required when the officer has reasonable cause to believe that a person is driving while intoxicated, and the person has either been lawfully placed under arrest for a violation of this section, or has been involved in a motor vehicle accident or collision resulting in property damage, personal injury, or death.

              (d) In the absence of an applicable tribal traffic code, the provisions of state traffic laws applicable in the state where a Court of Indian Offenses is located shall apply to the operation of motor vehicles within the Indian country under the jurisdiction of the Court of Indian Offenses with the exception that any person found guilty of violating such laws shall, in lieu of the penalties provided under state law, be sentenced according to the standards found in § 11.450 depending on the nature of the traffic code violation, and may be deprived of the right to operate any motor vehicle for a period not to exceed 6 months.

              § 11.446
              Cruelty to animals.
              A person commits a misdemeanor if he or she purposely or recklessly:
              (a) Subjects any animal in his or her custody to cruel neglect; or
              (b) Subjects any animal to cruel mistreatment; or
              (c) Kills or injures any animal belonging to another without legal privilege or consent of the owner.
              (d) Causes one animal to fight with another.

              § 11.447
              Maintaining a public nuisance.
              A person who permits his or her property to fall into such condition as to injure or endanger the safety, health, comfort, or property of his or her neighbors, is guilty of a violation.

              § 11.448
              Abuse of office.
              A person acting or purporting to act in an official capacity or taking advantage of such actual or purported capacity commits a misdemeanor if, knowing that his or her conduct is illegal, he or she:
              (a) Subjects another to arrest, detention, search, seizure, mistreatment, dispossession, assessment, lien or other infringement of personal or property rights; or
              (b) Denies or impedes another in the exercise or enjoyment of any right, privilege, power or immunity.

              § 11.449
              Violation of an approved tribal ordinance.
              A person who violates the terms of any tribal ordinance duly enacted by the governing body of the tribe occupying the Indian country under the jurisdiction of the Court of Indian Offenses and approved by the Assistant Secretary—Indian Affairs or his or her designee, is guilty of an offense and upon conviction thereof shall be sentenced as provided in the ordinance.

              § 11.450
              Maximum fines and sentences of imprisonment.
              A person convicted of an offense under the regulations in this part may be sentenced as follows:

                  Type of offense
                  Maximum allowable sentence

                  (a) Misdemeanor
                  Up to 1 year in prison, or a fine of up to $5,000, or both.

                  (b) Petty misdemeanor
                  Up to 6 months in prison, or a fine of up to $2,500, or both.

                  (c) Violation
                  Up to 3 months in prison, or a fine of up to $1,000, or both.

              [73 FR 39861, July 11, 2008]

              § 11.451
              Abuse of psychotoxic chemical solvents.
              (a) It is unlawful to:
              (1) Intentionally smell or inhale the fumes of any psychotoxic chemical solvent or possess, purchase, or attempt to possess or purchase any psychotoxic chemical solvent, for the purpose of causing intoxication, inebriation, excitement, stupefaction, or the dulling of the brain or nervous system; or
              (2) Sell, give away, dispense, or distribute, or offer to sell, give away, dispense, or distribute, any psychotoxic chemical solvent knowing or believing that the purchaser or another person intends to use the solvent in violation of this section.
              (b) This section does not apply to inhalation of anesthesia for medical or dental purposes.
              (c) As used in this section, “psychotoxic chemical solvent” means any glue, gasoline, paint, hair spray, Lysol, or other substance containing one or more of the following chemical compounds:
              (1) Acetone and acetate;
              (2) Benzene;
              (3) Butyl-alcohol;
              (4) Methyl ethyl;
              (6) Peptone;
              (7) Pentachlorophenol;
              (8) Petroleum ether; or

              (9) Any other chemical substance the inhalation of whose fumes or vapors can cause intoxication, inebriation, excitement, stupefaction, or the dulling of the brain or nervous system.

              (d) The statement listing the contents of a substance packaged in a container by the manufacturer or producer thereof is rebuttable proof of the contents of the substance without further expert testimony if it reasonably appears that the substance in the container is the same substance placed therein by the manufacturer or producer.
              (e) Abuse of psychotoxic chemical solvents, as defined in this section, is punishable as a petty misdemeanor, and the court may order any person using psychotoxic chemical solvents as described in paragraph (a) of this section to be committed to a facility for treatment for up to 6 months.
              (f) Psychotoxic chemical solvents kept or used in violation of this section are declared contraband. Upon proof of a violation, these solvents must be forfeited to the Federal government by order of the court, following public notice and an opportunity for any person claiming an interest in the solvents to be heard.
              [73 FR 39861, July 11, 2008]

              § 11.452
              Possession of a controlled substance.
              (a) It is unlawful for a person to knowingly or intentionally possess any controlled substance listed in 21 CFR Part 1308, as amended, unless:
              (1) The Controlled Substances Act or Drug Enforcement Agency regulations specifically authorizes possession of the substance;
              (2) The substance or preparation is excluded or exempted by 21 CFR 1308.21 through 1308.35, as amended; or
              (3) The provisions of 42 U.S.C. 1996a (regarding traditional Indian religious use of peyote) apply.
              (b) Violations of paragraph (a) of this section are punishable as a misdemeanor.
              (c) Any controlled substance involved in violation of this section is declared to be contraband. Upon proof of a violation of this section, the controlled substance must be forfeited to the Federal Government by order of the court, after public notice and an opportunity for any person claiming an interest in the substance to be heard.
              (d) Any personal property used to transport, conceal, manufacture, cultivate, or distribute a controlled substance in violation of this section is subject to forfeiture to the Federal Government by order of the court upon proof of this use, following public notice and opportunity for any person claiming an interest in the property to be heard.
              [73 FR 39861, July 11, 2008]

              § 11.453
              Prostitution or solicitation.
              A person who commits prostitution or solicitation or who knowingly keeps, maintains, rents, or leases, any house, room, tent, or other place for the purpose of prostitution is guilty of a misdemeanor.
              [73 FR 39861, July 11, 2008]

              § 11.454
              Domestic violence.
              (a) A person who commits domestic violence by inflicting physical harm, bodily injury, or sexual assault, or inflicting the fear of imminent physical harm, bodily injury, or sexual assault on a family member, is guilty of a misdemeanor.
              (b) For purposes of this section, a family member is any of the following:
              (1) A spouse;
              (2) A former spouse;
              (3) A person related by blood;
              (4) A person related by existing or prior marriage;
              (5) A person who resides or resided with the defendant;
              (6) A person with whom the defendant has a child in common; or
              (7) A person with whom the defendant is or was in a dating or intimate relationship.
              [73 FR 39861, July 11, 2008]

            Subpart E—Civil Actions

              § 11.500
              Law applicable to civil actions.
              (a) In all civil cases, the Magistrate of a Court of Indian Offenses shall have discretion to apply:
              (1) Any laws of the United States that may be applicable;
              (2) Any authorized regulations contained in the Code of Federal Regulations; and

              (3) Any laws or customs of the tribe occupying the area of Indian country over which the court has jurisdiction that are not prohibited by Federal laws.
              (b) The delineation in paragraph (a) of this section does not establish a hierarchy relative to the applicability of specific law in specific cases.
              (c) Where any doubt arises as to the customs of the tribe, the court may request the advice of counselors familiar with those customs.
              (d) Any matters that are not covered by the laws or customs of the tribe, or by applicable Federal laws and regulations, may be decided by the Court of Indian Offenses according to the laws of the State in which the matter in dispute lies.
              [73 FR 39862, July 11, 2008]

              § 11.501
              Judgments in civil actions.
              (a) In all civil cases, judgment shall consist of an order of the court awarding damages to be paid to the injured party, or directing the surrender of certain property to the injured party, or the performance of some other act for the benefit of the injured party, including injunctive relief and declaratory judgments.
              (b) Where the injury inflicted was the result of carelessness of the defendant, the judgment shall fairly compensate the injured party for the loss he or she has suffered.
              (c) Where the injury was deliberately inflicted, the judgment shall impose an additional penalty upon the defendant, which additional penalty may run either in favor of the injured party or in favor of the tribe.
              (d) Where the injury was inflicted as a result of accident, or where both the complainant and the defendant were at fault, the judgment shall compensate the injured party for a reasonable part of the loss he or she has suffered.
              (e) No judgment shall be given on any suit unless the defendant has actually received notice of such suit and ample opportunity to appear in court in his or her defense.

              § 11.502
              Costs in civil actions.
              (a) The court may assess the accruing costs of the case against the party or parties against whom judgment is given. Such costs shall consist of the expenses of voluntary witnesses for which either party may be responsible and the fees of jurors in those cases where a jury trial is had, and any further incidental expenses connected with the procedure before the court as the court may direct.
              (b) In all civil suits the complainant may be required to deposit with the clerk of the court a fee or other security in a reasonable amount to cover costs and disbursements in the case.

              § 11.503
              Applicable civil procedure.
              The procedure to be followed in civil cases shall be the Federal Rules of Civil Procedure applicable to United States district courts, except insofar as such procedures are superseded by order of the Court of Indian Offenses or by the existence of inconsistent tribal rules of procedure.

              § 11.504
              Applicable rules of evidence.
              Courts of Indian Offenses shall be bound by the Federal Rules of Evidence, except insofar as such rules are superseded by order of the Court of Indian Offenses, or by the existence of inconsistent tribal rules of evidence.

            Subpart F—Domestic Relations

              § 11.600
              Marriages.
              (a) A magistrate of the Court of Indian Offenses shall have the authority to perform marriages.
              (b) A valid marriage shall be constituted by:
              (1) The issuance of a marriage license by the Court of Indian Offenses and by execution of a consent to marriage by both parties to the marriage and recorded with the clerk of the court; or
              (2) The recording of a tribal custom marriage with the Court of Indian Offenses within 30 days of the tribal custom marriage ceremony by the signing by both parties of a marriage register maintained by the clerk of the court.
              (c) A marriage license application shall include the following information:
              (1) Name, sex, occupation, address, social security number, and date and place of birth of each party to the proposed marriage;

              (2) If either party was previously married, his or her name, and the date, place, and court in which the marriage was dissolved or declared invalid or the date and place of death of the former spouse;
              (3) Name and address of the parents or guardian of each party;
              (4) Whether the parties are related to each other and, if so, their relationship; and
              (5) The name and date of birth of any child of which both parties are parents, born before the making of the application, unless their parental rights and the parent and child relationship with respect to the child have been terminated.
              (6) A certificate of the results of any medical examination required by either applicable tribal ordinances, or the laws of the State in which the Indian country under the jurisdiction of the Court of Indian Offenses is located.

              § 11.601
              Marriage licenses.
              A marriage license shall be issued by the clerk of the court in the absence of any showing that the proposed marriage would be invalid under any provision of this part or tribal custom, and upon written application of an unmarried male and unmarried female, both of whom must be eighteen (18) years or older. If either party to the marriage is under the age of eighteen (18), that party must have the written consent of parent or his or her legal guardian.

              § 11.602
              Solemnization.
              (a) In the event a judge, clergyman, tribal official or anyone authorized to do so solemnizes a marriage, he or she shall file with the clerk of the court certification thereof within thirty (30) days of the solemnization.
              (b) Upon receipt of the marriage certificate, the clerk of the court shall register the marriage.

              § 11.603
              Invalid or prohibited marriages.
              (a) The following marriages are prohibited:
              (1) A marriage entered into prior to the dissolution of an earlier marriage of one of the parties;
              (2) A marriage between an ancestor and a descendant, or between a brother and a sister, whether the relationship is by the half or the whole blood;
              (3) A marriage between an aunt and a nephew or between an uncle and a niece, whether the relationship is by the half or the whole blood, except as to marriages permitted by established tribal custom;
              (4) A marriage prohibited by custom and usage of the tribe.
              (b) Children born of a prohibited marriage are legitimate.

              § 11.604
              Declaration of invalidity.
              (a) The Court of Indian Offenses shall enter a decree declaring the invalidity of a marriage entered into under the following circumstances:
              (1) A party lacked capacity to consent to the marriage, either because of mental incapacity or infirmity or by the influence of alcohol, drugs, or other incapacitating substances; or
              (2) A party was induced to enter into a marriage by fraud or duress; or
              (3) A party lacks the physical capacity to consummate the marriage by sexual intercourse and at the time the marriage was entered into, the other party did not know of the incapacity; or
              (4) The marriage is prohibited under § 11.603.
              (b) A declaration of invalidity may be sought by either party to the marriage or by the legal representative of the party who lacked capacity to consent.

              § 11.605
              Dissolution.
              (a) The Court of Indian Offenses shall enter a decree of dissolution of marriage if:
              (1) The court finds that the marriage is irretrievably broken, if the finding is supported by evidence that (i) the parties have lived separate and apart for a period of more than 180 days next preceding the commencement of the proceeding, or (ii) there is serious marital discord adversely affecting the attitude of one or both of the parties towards the marriage;
              (2) The court finds that either party, at the time the action was commenced, was domiciled within the Indian country under the jurisdiction of the court, and that the domicile has been maintained for 90 days next preceding the making of the findings; and

              (3) To the extent it has jurisdiction to do so, the court has considered, approved, or provided for child custody, the support of any child entitled to support, the maintenance of either spouse, and the disposition of property; or has provided for a separate later hearing to complete these matters.
              (b) If a party requests a decree of legal separation rather than a decree of dissolution of marriage, the Court of Indian Offenses shall grant the decree in that form unless the other party objects.

              § 11.606
              Dissolution proceedings.
              (a) Either or both parties to the marriage may initiate dissolution proceedings.
              (b) If a proceeding is commenced by one of the parties, the other party shall be served in the manner provided by the applicable rule of civil procedure and within thirty days after the date of service may file a verified response.
              (c) The verified petition in a proceeding for dissolution of marriage or legal separation shall allege that the marriage is irretrievably broken and shall set forth:
              (1) The age, occupation, and length of residence within the Indian country under the jurisdiction of the court of each party;
              (2) The date of the marriage and the place at which it was registered;
              (3) That jurisdictional requirements are met and that the marriage is irretrievably broken in that either (i) the parties have lived separate and apart for a period of more than 180 days next preceding the commencement of the proceeding or (ii) there is a serious marital discord adversely affecting the attitude of one or both of the parties toward the marriage, and there is no reasonable prospect of reconciliation;
              (4) The names, age, and addresses of all living children of the marriage and whether the wife is pregnant;
              (5) Any arrangement as to support, custody, and visitation of the children and maintenance of a spouse; and
              (6) The relief sought.

              § 11.607
              Temporary orders and temporary injunctions.
              (a) In a proceeding for dissolution of marriage or for legal separation, either party may move for temporary maintenance or temporary support of a child of the marriage entitled to support. The motion shall be accompanied by an affidavit setting forth the factual basis for the motion and the amounts requested.
              (b) As a part of a motion for temporary maintenance or support or by an independent motion accompanied by an affidavit, either party may request the Court of Indian Offenses to issue a temporary injunction for any of the following relief:
              (1) Restraining any person from transferring, encumbering, concealing, or otherwise disposing of any property except in the usual course of business or for the necessities of life, and, if so restrained, requiring him or her to notify the moving party of any proposed extraordinary expenditures made after the order is issued;
              (2) Enjoining a party from molesting or disturbing the peace of the other party or of any child;
              (3) Excluding a party from the family home or from the home of the other party upon a showing that physical or emotional harm would otherwise result;
              (4) Enjoining a party from removing a child from the jurisdiction of the court; and
              (5) Providing other injunctive relief proper in the circumstances.
              (c) The court may issue a temporary restraining order without requiring notice to the other party only if it finds on the basis of the moving affidavit or other evidence that irreparable injury will result to the moving party if no order is issued until the time for responding has elapsed.
              (d) A response may be filed within 20 days after service of notice of a motion or at the time specified in the temporary restraining order.
              (e) On the basis of the showing made, the Court of Indian Offenses may issue a temporary injunction and an order for temporary maintenance or support in amounts and on terms just and proper under the circumstances.
              (f) A temporary order or temporary injunction:

              (1) Does not prejudice the rights of the parties or the child which are to be adjudicated at subsequent hearings in a proceeding;

              (2) May be revoked or modified before the final decree as deemed necessary by the court;
              (3) Terminates when the final decree is entered or when the petition for dissolution or legal separation is voluntarily dismissed.

              § 11.608
              Final decree; disposition of property; maintenance; child support; custody.
              (a) A decree of dissolution of marriage or of legal separation is final when entered, subject to the right of appeal.
              (b) The Court of Indian Offenses shall have the power to impose judgment as follows in dissolution or separation proceedings:
              (1) Apportion or assign between the parties the non-trust property and non-trust assets belonging to either or both and whenever acquired, and whether the title thereto is in the name of the husband or wife or both;
              (2) Grant a maintenance order for either spouse in amounts and for periods of time the court deems just;
              (3) Order either or both parents owing a duty of support to a child to pay an amount reasonable or necessary for his or her support, without regard to marital misconduct, after considering all relevant factors. In addition:
              (i) When a support order is issued by a Court of Indian Offenses, the order may provide that a portion of an absent parent's wages be withheld to comply with the order on the earliest of the following dates: When an amount equal to one month's support becomes overdue; when the absent parent requests withholding; or at such time as the Court of Indian Offenses selects. The amount to be withheld may include an amount to be applied toward liquidation of any overdue support.
              (ii) If the Court of Indian Offenses finds that an absent parent who has been ordered to pay child support is now residing within the jurisdiction of another Court of Indian Offenses, an Indian tribal court, or a state court, it shall petition such court for reciprocal enforcement and provide it with a copy of the support order.
              (iii) If the Court of Indian Offenses receives a petition from another Court of Indian Offenses, an Indian tribal court or a state court, it shall take necessary steps to determine paternity, establish an order for child support, register a foreign child support order or enforce orders as requested in the petition.
              (iv) The Court of Indian Offenses shall assist a state in the enforcement and collection of past-due support from Federal tax refunds of absent parents living within the Indian country over which the court has jurisdiction.
              (v) Any person or agency who has provided support or assistance to a child under 18 years of age shall be a proper person to bring an action under this section and to recover judgment in an amount equal to such past-paid support or assistance, including costs of bringing the action.
              (4) Make child custody determinations in accordance with the best interest of the child.
              (5) Restore the maiden name of the wife.

              § 11.609
              Determination of paternity and support.
              The Court of Indian Offenses shall have jurisdiction of all suits brought to determine the paternity of a child and to obtain a judgment for the support of the child. A judgment of the court establishing the identity of the father of the child shall be conclusive of that fact in all subsequent determinations of inheritance by the Court of Indian Offenses or by the Department of the Interior.

              § 11.610
              Appointment of guardians.
              The court shall have the jurisdiction to appoint or remove legal guardians for minors and for persons who are incapable of managing their own affairs under terms and conditions to be prescribed by the court.

              § 11.611
              Change of name.

              The Court of Indian Offenses shall have the authority to change the name of any person upon petition of such person or upon the petition of the parents of any minor, if at least one parent is Indian. Any order issued by the court for a change of name shall be kept as a permanent record and copies shall be filed with the agency superintendent, the governing body of the tribe occupying the Indian country under the jurisdiction of the court, and any appropriate agency of the State in which the court is located.

            Subpart G—Probate Proceedings

              § 11.700
              Probate jurisdiction.
              The Court of Indian Offenses shall have jurisdiction to administer in probate the estate of a deceased Indian who, at the time of his or her death, was domiciled or owned real or personal property situated within the Indian country under the jurisdiction of the court to the extent that such estate consists of property which does not come within the jurisdiction of the Secretary of the Interior.

              § 11.701
              Duty to present will for probate.
              Any custodian of a will shall deliver the same to the Court of Indian Offenses within 30 days after receipt of information that the maker thereof is deceased. Any custodian who fails to do so shall be liable for damages sustained by any person injured thereby.

              § 11.702
              Proving and admitting will.
              (a) Upon initiating the probate of an estate, the will of the decedent shall be filed with the court. Such will may be proven and admitted to probate by filing an affidavit of an attesting witness which identifies such will as being the will which the decedent executed and declared to be his or her last will. If the evidence of none of the attesting witnesses is available, the court may allow proof of the will by testimony that the signature of the testator is genuine.
              (b) At any time within 90 days after a will has been admitted to probate, any person having an interest in the decedent's estate may contest the validity of such will. In the event of such contest, a hearing shall be held to determine the validity of such will.
              (c) Upon considering all relevant information concerning the will, the Court of Indian Offenses shall enter an order affirming the admission of such will to probate, or rejecting such will and ordering that the probate of the decedent's estate proceed as if the decedent had died intestate.

              § 11.703
              Petition and order to probate estate.
              (a) Any person having an interest in the administration of an estate which is subject to the jurisdiction of the court may file a written petition with the court requesting that such estate be administered in probate.
              (b) The Court of Indian Offenses shall enter an order directing that the estate be probated upon finding that the decedent was an Indian who, at the time of his or her death, was domiciled or owned real or personal property situated within the Indian country under the jurisdiction of the court other than trust or other restricted property, that the decedent left an estate subject to the jurisdiction of the court, and that it is necessary to probate such estate.

              § 11.704
              Appointment and duties of executor or administrator.
              (a) Upon ordering the estate to be probated, the court shall appoint an administrator to administer the estate of the decedent. The person nominated by the decedent's will, if any, to be the executor of the estate shall be so appointed, provided such person is willing to serve in such capacity.
              (b) The executor or administrator appointed by the court shall have the following duties and powers during the administration of the estate and until discharged by the court:
              (1) To send by certified mail true copies of the order to probate the estate and the will of the decedent admitted to probate by such order, if any, to each heir, devisee and legatee of the decedent, at their last known address, to the governing body of the tribe or tribes occupying the Indian country over which the court has jurisdiction, and to the agency superintendent;
              (2) To preserve and protect the decedent's property within the estate and the heirs, so far as is possible;
              (3) To investigate promptly all claims against the decedent's estate and determine their validity;

              (4) To cause a written inventory of all the decedent's property within the estate to be prepared promptly with each article or item being separately set forth and cause such property to be exhibited to and appraised by an appraiser, and the inventory and appraisal thereof to be filed with the court;
              (5) To give promptly all persons entitled thereto such notice as is required under these proceedings;
              (6) To account for all property within the estate which may come into his or her possession or control, and to maintain accurate records of all income received and disbursements made during the course of the administration.

              § 11.705
              Removal of executor or administrator.
              The Court of Indian Offenses may order the executor or administrator to show cause why he or she should not be discharged, and may discharge the executor or administrator for failure, neglect or improper performance of his or her duties.

              § 11.706
              Appointment and duties of appraiser.
              (a) Upon ordering an estate to be probated, the court shall appoint a disinterested and competent person as an appraiser to appraise all of the decedent's real and personal property within the estate.
              (b) It shall be the duty of the appraiser to appraise separately the true cash value of each article or item of property within the estate, including debts due the decedent, and to indicate the appraised value of each such article or item of property set forth in the inventory of the estate and to certify such appraisal by subscribing his or her name to the inventory and appraisal.

              § 11.707
              Claims against estate.
              (a) Creditors of the estate or those having a claim against the decedent shall file their claim with the clerk of the court or with the executor or administrator within 60 days from official notice of the appointment of the executor or administrator published locally in the press or posting of signs at the tribal and agency offices, giving appropriate notice for the filing of claims.
              (b) The executor or administrator shall examine all claims within 90 days of his or her appointment and notify the claimant whether his or her claim is accepted or rejected. If the claimant is notified of rejection, he or she may request a hearing before the court by filing a petition requesting such hearing within 30 days following the notice of rejection.

              § 11.708
              Sale of property.
              After filing the inventory and appraisal, the executor or administrator may petition the court for authority to sell personal property of the estate for purposes of paying the expenses of last illness and burial expenses, expenses of administration, claims, if any, against the estate, and for the purpose of distribution. If, in the court's judgment, such sale is in the best interest of the estate, the court shall order such sale and prescribe the terms upon which the property shall be sold.

              § 11.709
              Final account.
              (a) When the affairs of an estate have been fully administered, the executor or administrator shall file a final account with the court, verified by his or her oath. Such final account shall affirmatively set forth:
              (1) That all claims against the estate have been paid, except as shown, and that the estate has adequate unexpended and unappropriated funds to fully pay such remaining claims;
              (2) The amount of money received and expended by him or her, from whom received and to whom paid, referring to the vouchers for each of such payments;
              (3) That there is nothing further to be done in the administration of the estate except as shown in the final account;
              (4) The remaining assets of the estate, including unexpended and unappropriated money, at the time of filing the final account;
              (5) The proposed determination of heirs and indicate the names, ages, addresses and relationship to the decedent of each distributee and the proposed distributive share and value thereof each heir, devisee or legatee is to receive; and
              (6) A petition that the court set a date for conducting a hearing to approve the final account, to determine the heirs, devisees and legatees of the decedent and the distributive share each distributee is to receive.

              § 11.710
              Determination of the court.
              At the time set for hearing upon the final account, the Court of Indian Offenses shall proceed to examine all evidence relating to the distribution of the decedent's estate, and consider objections to the final account which may have been filed by any heir, devisee, legatee, or other person having an interest in the distribution of the estate. Upon conclusion of the hearing, the court shall enter an order:
              (a) Providing for payment of approved claims;
              (b) Determining the decedent's heirs, devisees and legatees, indicating the names, ages and addresses of each, and the distributive share of the remaining estate which each distributee is to receive; and
              (c) Directing the administrator or executor to distribute such distributive share to those entitled thereto.

              § 11.711
              Descent and distribution.
              (a) The court shall distribute the estate according to the terms of the will of the decedent which has been admitted to probate.
              (b) If the decedent died intestate or having left a will which has been rejected by the court, the estate shall be distributed as follows:
              (1) According to the laws and customs of the tribe if such laws and customs are proved; or
              (2) According to state law absent the existence of tribal laws or customs.
              (c) If no person takes under the above subsections, the estate shall escheat to the tribe.

              § 11.712
              Closing estate.
              (a) Upon finding that the estate has been fully administered and is in a condition to be closed, the court shall enter an order closing the estate and discharging the executor or administrator.
              (b) If an order closing the estate has not been entered by the end of nine months following appointment of executor or administrator, the executor or administrator shall file a written report with the court stating the reasons why the estate has not been closed.

              § 11.713
              Small estates.
              An estate having an appraised value which does not exceed $2,000.00 and which is to be inherited by a surviving spouse and/or minor children of the deceased may, upon petition of the executor or administrator, and a hearing before the court, be distributed without administration to those entitled thereto, upon which the estate shall be closed.

            Subpart H—Appellate Proceedings

              § 11.800
              Jurisdiction of appellate division.
              The jurisdiction of the appellate division shall extend to all appeals from final orders and judgments of the trial division, by any party except the prosecution in a criminal case where there has been a jury verdict. The appellate division shall review all issues of law presented to it which arose in the case, but shall not reverse the trial division decision unless the legal error committed affected a substantial right of a party or the outcome of the case.

              § 11.801
              Procedure on appeal.
              (a) An appeal must be taken within 15 days from the judgment appealed from by filing a written notice of appeal with the clerk of the court.
              (b) The notice of appeal shall specify the party or parties taking the appeal, shall designate the judgment, or part thereof appealed from, and shall contain a short statement of reasons for the appeal. The clerk of the court shall mail a copy of the notice of appeal to all parties other than parties taking the appeal.
              (c) In civil cases, other parties shall have 15 days to respond to the notice of appeal.

              (d) In civil cases, the appellant may request the trial division to stay the judgment pending action on the notice of appeal, and, if the appeal is allowed, either party may request the trial division to grant or stay an injunction pending appeal. The trial division may condition a stay or injunction pending appeal on the depositing of cash or bond sufficient to cover damages awarded by the court together with interest.

              § 11.802
              Judgment against surety.
              Any surety to a bond submits himself or herself to the jurisdiction of the Court of Indian Offenses, and irrevocably appoints the clerk of the court as his or her agent upon whom any papers affecting his or her liability on the bond may be served.

              § 11.803
              Record on appeal.
              Within 20 days after a notice of appeal is filed, the clerk of court shall certify and file with the appellate division the record of the case.

              § 11.804
              Briefs and memoranda.
              (a) Within 30 days after the notice of appeal is filed, the appellant may file a written brief in support of his or her appeal. An original and one copy for each appellee shall be filed with the clerk of court who shall mail one copy by registered or certified mail to each appellee.
              (b) The appellee shall have 30 days after receipt of the appellant's brief within which to file an answer brief. An original and one copy for each appellant shall be filed with the clerk of the court who shall mail one copy, by registered or certified mail, to each appellant.

              § 11.805
              Oral argument.
              The appellate division shall assign all criminal cases for oral argument. The court may in its discretion assign civil cases for oral argument or may dispose of civil cases on the briefs without argument.

              § 11.806
              Rules of court.
              The chief magistrate of the appellate division shall prescribe all necessary rules concerning the operation of the appellate division and the time and place of meeting of the court.

            Subpart I—Children's Court

              § 11.900
              Definitions.
              For purposes of sections pertaining to the children's court:
              (a) Abandon means the leaving of a minor without communication or failing to support a minor for a period of one year or more with no indication of the parents' willingness to assume a parental role.
              (b) Adult means a person eighteen (18) years or older.
              (c) Counsel means an attorney admitted to the bar of a state or the District of Columbia or a lay advocate admitted to practice before the Court of Indian Offenses.
              (d) Custodian means one who has physical custody of a minor and who is providing food, shelter and supervision to the minor.
              (e) Custody means the power to control the day-to-day activities of the minor.
              (f) Delinquent act means an act which, if committed by an adult, would be designated a crime under this part or under an ordinance of the tribe.
              (g) Detention means the placement of a minor in a physically restrictive facility.
              (h) Guardian means a person other than the minor's parent who is by law responsible for the care of the minor.
              (i) Guardian ad Litem means a person appointed by the court to represent the minor's interests before the court.
              (j) Juvenile offender means a person who commits a delinquent act prior to his or her eighteenth birthday.
              (k) Minor means:
              (1) A person under 18 years of age,
              (2) A person 18 years of age or older concerning whom proceedings are commenced in the children's court prior to his or her eighteenth birthday, or
              (3) A person 18 years of age or older who is under the continuing jurisdiction of the children's court.
              (l) Minor-in-need-of-care means a minor who:
              (1) Has no parent or guardian available and willing to take care of him or her;
              (2) Is unwilling to allow his or her parent or guardian to take care of him or her;

              (3) Has suffered or is likely to suffer a physical or emotional injury, inflicted by other than accidental means, which causes or creates a substantial risk of death, disfigurement, impairment of bodily functions or emotional health;

              (4) Has not been provided with adequate food, clothing, shelter, medical care, education or supervision by his or her parent, guardian or custodian;
              (5) Has been sexually abused;
              (6) Has been committing delinquent acts as a result of parental pressure, guidance or approval; or,
              (7) Has been committing status offenses.
              (m) Status offense means an offense which, if committed by an adult, would not be designated a crime under this part or under an ordinance of the tribe.

              § 11.901
              The children's court established.
              When conducting proceedings under §§ 11.900-11.1114 of this part, the Court of Indian Offenses shall be known as the “Children's Court”.

              § 11.902
              Non-criminal proceedings.
              No adjudication upon the status of any minor in the jurisdiction of the children's court shall be deemed criminal or be deemed a conviction of a crime, unless the children's court refers the matter to the Court of Indian Offenses. Neither the disposition nor evidence given before the children's court shall be admissible as evidence against the child in any proceeding in another court.

              § 11.903
              Presenting officer.
              (a) The agency superintendent and the chief magistrate of the children's court shall jointly appoint a presenting officer to carry out the duties and responsibilities set forth under §§ 11.900-11.1114 of this part. The presenting officer's qualifications shall be the same as the qualifications for the official who acts as prosecutor for the Court of Indian Offenses. The presenting officer may be the same person who acts as prosecutor in the Court of Indian Offenses.
              (b) The presenting officer shall represent the tribe in all proceedings under §§ 11.900-11.1114 of this part.

              § 11.904
              Guardian ad litem.
              The children's court, under any proceeding authorized by this part, shall appoint, for the purposes of the proceeding, a guardian ad litem for a minor, where the court finds that the minor does not have a natural or adoptive parent, guardian or custodian willing and able to exercise effective guardianship, or where the parent, guardian, or custodian has been accused of abusing or neglecting the minor.

              § 11.905
              Jurisdiction.
              The children's court has exclusive, original jurisdiction of the following proceedings:
              (a) Proceedings in which a minor who resides in a community for which the court is established is alleged to be a juvenile offender, unless the children's court transfers jurisdiction to the Court of Indian Offenses pursuant to § 11.907 of this part.
              (b) Proceedings in which a minor who resides in a community for which the court is established is alleged to be a minor-in-need-of-care.

              § 11.906
              Rights of parties.
              (a) In all hearings and proceedings under §§ 11.900-11.1114 of this part the following rights will be observed unless modified by the particular section describing a hearing or proceeding:
              (1) Notice of the hearing or proceeding shall be given the minor, his or her parents, guardian or custodian and their counsel. The notice shall be delivered by certified mail. The notice shall contain:
              (i) The name of the court;
              (ii) The title of the proceeding; and
              (iii) The date, time and place of the proceeding.
              (b) The children's court magistrate shall inform the minor and his or her parents, guardian or custodian of their right to retain counsel, and, in juvenile delinquency proceedings, shall tell them: “You have a right to have a lawyer or other person represent you at this proceeding. If you cannot afford to hire counsel, the court will appoint counsel for you.”

              (c) If the children's court magistrate believes there is a potential conflict of interest between the minor and his or her parents, guardian, or custodian with respect to legal representation, the court shall appoint another person to act as counsel for the minor.

              (d) The minor need not be a witness against, nor otherwise incriminate, himself or herself.
              (e) The children's court shall give the minor, and the minor's parent, guardian or custodian the opportunity to introduce evidence, to be heard on their own behalf and to examine witnesses.

              § 11.907
              Transfer to Court of Indian Offenses.
              (a) The presenting officer or the minor may file a petition requesting the children's court to transfer the minor to the Court of Indian Offenses if the minor is 14 years of age or older and is alleged to have committed an act that would have been considered a crime if committed by an adult.
              (b) The children's court shall conduct a hearing to determine whether jurisdiction of the minor should be transferred to the Court of Indian Offenses.
              (1) The transfer hearing shall be held no more than 30 days after the petition is filed.
              (2) Written notice of the transfer hearing shall be given to the minor and the minor's parents, guardian or custodian at least 72 hours prior to the hearing.
              (c) All the rights listed in § 11.906 shall be afforded the parties at the transfer hearing.
              (d) The following factors shall be considered when determining whether to transfer jurisdiction of the minor to the Court of Indian Offenses:
              (1) The nature and seriousness of the offense with which the minor is charged.
              (2) The nature and condition of the minor, as evidenced by his or her age; mental and physical condition; past record of offenses; and responses to past children's court efforts at rehabilitation.
              (e) The children's court may transfer jurisdiction of the minor to the Court of Indian Offenses if the children's court finds clear and convincing evidence that both of the following circumstances exist:
              (1) There are no reasonable prospects for rehabilitating the minor through resources available to the children's court; and
              (2) The offense allegedly committed by the minor evidences a pattern of conduct which constitutes a substantial danger to the public.
              (f) When a minor is transferred to the Court of Indian Offenses, the children's court shall issue a written transfer order containing reasons for its order. The transfer order constitutes a final order for purposes of appeal.

              § 11.908
              Court records.
              (a) A record of all hearings under §§ 11.900-11.1114 of this part shall be made and preserved.
              (b) All children's court records shall be confidential and shall not be open to inspection to anyone but the minor, the minor's parents or guardian, the presenting officer, or others by order of the children's court.

              § 11.909
              Law enforcement records.
              (a) Law enforcement records and files concerning a minor shall be kept separate from the records and files of adults.
              (b) All law enforcement records and files shall be confidential and shall not be open to inspection to anyone but the minor, the minor's parents or guardian, the presenting officer, or others by order of the children's court.

              § 11.910
              Expungement.
              When a minor who has been the subject of any proceeding before the children's court attains his or her twenty-first birthday, the children's court magistrate shall order the court records and the law enforcement records pertaining to the minor to be destroyed, except for adoption records which shall not be destroyed under any circumstances.

              § 11.911
              Appeal.
              (a) For purposes of appeal, a record of the proceedings shall be made available to the minor and parents, guardian or custodian. Costs of obtaining the record shall be paid by the party seeking the appeal.
              (b) Any party to a children's court hearing may appeal a final order or disposition of the case by filing a written notice of appeal with the children's court within 30 days of the final order of disposition.

              (c) No decree or disposition of a hearing shall be stayed by such appeal.

              (d) All appeals shall be conducted in accordance with this part.

              § 11.912
              Contempt of court.
              Any willful disobedience or interference with any order of the children's court constitutes contempt of court which may be punished in accordance with this part.

            Subpart J—Juvenile Offender Procedure

              § 11.1000
              Complaint.
              A complaint must be filed by a law enforcement officer or by the presenting officer and sworn to by a person who has knowledge of the facts alleged. The complaint shall be signed by the complaining witness, and shall contain:
              (a) A citation to the specific section(s) of this part which gives the children's court jurisdiction of the proceedings;
              (b) A citation to the section(s) of this part which the minor is alleged to have violated;
              (c) The name, age, and address of the minor who is the subject of the complaint, if known; and
              (d) A plain and concise statement of the facts upon which the allegations are based, including the date, time, and location at which the alleged facts occurred.

              § 11.1001
              Warrant.
              The children's court may issue a warrant directing that a minor be taken into custody if the court finds there is probable cause to believe the minor committed the delinquent act alleged in the complaint.

              § 11.1002
              Custody.
              A minor may be taken into custody by a law enforcement officer if:
              (a) The officer observes the minor committing a delinquent act; or
              (b) The officer has reasonable grounds to believe a delinquent act has been committed that would be a crime if committed by an adult, and that the minor has committed the delinquent act; or
              (c) A warrant pursuant to § 11.1001 has been issued for the minor.

              § 11.1003
              Law enforcement officer's duties.
              A law enforcement officer who takes a minor into custody pursuant to § 11.1002 of this part shall:
              (a) Give the following warnings to any minor taken into custody prior to any questioning:
              (1) The minor has a right to remain silent;
              (2) Anything the minor says can be used against the minor in court;
              (3) The minor has the right to the presence of counsel during questioning; and
              (4) If he or she cannot afford counsel, the court will appoint one.
              (b) Release the minor to the minor's parent, guardian, or custodian and issue a verbal advice or warning as may be appropriate, unless shelter care or detention is necessary.
              (c) If the minor is not released, make immediate and recurring efforts to notify the minor's parents, guardian, or custodian to inform them that the minor has been taken into custody and inform them of their right to be present with the minor until an investigation to determine the need for shelter care or detention is made by the court.

              § 11.1004
              Detention and shelter care.
              (a) A minor alleged to be a juvenile offender may be detained, pending a court hearing, in the following places:
              (1) A foster care facility approved by the tribe;
              (2) A detention home approved by the tribe; or
              (3) A private family home approved by the tribe.
              (b) A minor who is 16 years of age or older may be detained in a jail facility used for the detention of adults only if:
              (1) A facility in paragraph (a) of this section is not available or would not assure adequate supervision of the minor;
              (2) The minor is housed in a separate room from the detained adults; and
              (3) Routine inspection of the room where the minor is housed is conducted every 30 minutes to assure his or her safety and welfare.

              § 11.1005
              Preliminary inquiry.
              (a) If a minor is placed in detention or shelter care, the children's court shall conduct a preliminary inquiry within 24 hours for the purpose of determining:
              (1) Whether probable cause exist to believe the minor committed the alleged delinquent act; and
              (2) Whether continued detention or shelter care is necessary pending further proceedings.
              (b) If a minor has been released to the parents, guardian or custodian, the children's court shall conduct a preliminary inquiry within three days after receipt of the complaint for the sole purpose of determining whether probable cause exists to believe the minor committed the alleged delinquent act.
              (c) If the minor's parents, guardian or custodian is not present at the preliminary inquiry, the children's court shall determine what efforts have been made to notify and to obtain the presence of the parents, guardian, or custodian. If it appears that further efforts are likely to produce the parents, guardian or custodian, the children's court shall recess for no more than 24 hours and direct that continued efforts be made to obtain the presence of parents, guardian or custodian.
              (d) All the rights listed in § 11.906 shall be afforded the parties in a preliminary inquiry.
              (e) The children's court shall hear testimony concerning:
              (1) The circumstances that gave rise to the complaint or the taking of the minor into custody; and
              (2) The need for detention or shelter care.
              (f) If the children's court finds that probable cause exists to believe the minor performed the delinquent act, the minor shall be released to the parents, guardian or custodian, and ordered to appear at the adjudicatory hearing unless:
              (1) The act is serious enough to warrant continued detention or shelter care;
              (2) There is reasonable cause to believe the minor will run away and be unavailable for further proceedings; or
              (3) There is reasonable cause to believe that the minor will commit a serious act causing damage to person or property.
              (g) The children's court may release a minor pursuant to paragraph (f) of this section to a relative or other responsible adult tribal member if the parent, guardian, or custodian of the minor consents to the release. If the minor is ten years of age or older, the minor and the parents, guardian or custodian must both consent to the release.
              (h) Upon a finding that probable cause exists to believe that the minor has committed the alleged delinquent act and that there is need for detention or shelter care, the minor's detention or shelter care shall be continued. Otherwise, the complaint shall be dismissed and the minor released.

              § 11.1006
              Investigation by the presenting officer.
              (a) The presenting officer shall make an investigation following the preliminary inquiry or the release of the minor to his or her parents, guardian or custodian to determine whether the interests of the minor and the public require that further action be taken. Upon the basis of this investigation, the presenting officer may:
              (1) Determine that no further action be taken;
              (2) Begin transfer proceedings to the Court of Indian Offenses pursuant to § 11.907 of this part; or
              (3) File a petition pursuant to § 11.1007 of this part to initiate further proceedings. The petition shall be filed within 48 hours of the preliminary inquiry if the minor is in detention or shelter care. If the minor has been previously released to his or her parents, guardian or custodian, relative or responsible adult, the petition shall be filed within ten days of the preliminary inquiry.

              § 11.1007
              Petition.
              (a) Proceedings under §§ 11.1000-11.1014 of this part shall be instituted by a petition filed by the presenting officer on behalf of the tribe and in the interests of the minor. The petition shall state:

              (1) The name, birth date, and residence of the minor;

              (2) The names and residences of the minor's parents, guardian or custodian;
              (3) A citation to the specific section(s) of this part which gives the children's court jurisdiction of the proceedings;
              (4) A citation to the section(s) of this part which the minor is alleged to have violated; and
              (5) If the minor is in detention or shelter care, the time the minor was taken into custody.

              § 11.1008
              Date of hearing.
              Upon receipt of the petition, the children's court shall set a date for the hearing which shall not be more than 15 days after the children's court receives the petition from the presenting officer. If the adjudicatory hearing is not held within 15 days after filing of the petition, the petition shall be dismissed and cannot be filed again, unless;
              (a) The hearing is continued upon motion of the minor; or
              (b) The hearing is continued upon motion of the presenting officer by reason of the unavailability of material evidence or witnesses and the children's court finds the presenting officer has exercised due diligence to obtain the material evidence or witnesses and reasonable grounds exist to believe that the material evidence or witnesses will become available.

              § 11.1009
              Summons.
              (a) At least five working days prior to the adjudicatory hearing, the children's court shall issue summons to:
              (1) The minor;
              (2) The minor's parents, guardian or custodian; and
              (3) Any person the children's court or the minor believes necessary for the adjudication of the hearing.
              (b) The summons shall contain the name of the court, the title of the proceedings, and the date, time and place of the hearing.
              (c) A copy of the petition shall be attached to the summons.
              (d) The summons shall be delivered personally by a law enforcement officer or appointee of the children's court. If the summons cannot be delivered personally, the court may deliver it by certified mail.

              § 11.1010
              Adjudicatory hearing.
              (a) The children's court shall conduct the adjudicatory hearing for the sole purpose of determining the guilt or innocence of the minor. The hearing shall be private and closed.
              (b) All the rights listed in § 11.906 shall be afforded the parties at the adjudicatory hearing. The notice requirements of § 11.906(a) are met by a summons issued pursuant to § 11.1009.
              (c) If the minor admits the allegations of the petition, the children's court shall proceed to the dispositional stage only if the children's court finds that:
              (1) The minor fully understands his or her rights as set forth in § 11.906 of this part and fully understands the potential consequences of admitting the allegations;
              (2) The minor voluntarily, intelligently and knowingly admits to all facts necessary to constitute a basis for children's court action; and
              (3) The minor has not, in the purported admission to the allegations, set forth facts which, if found to be true, constitute a defense to the allegations.
              (d) The children's court shall hear testimony concerning the circumstances which gave rise to the complaint.
              (e) If the allegations of the petition are sustained by proof beyond a reasonable doubt, the children's court shall find the minor to be a juvenile offender and proceed to the dispositional hearing.
              (f) A finding that a minor is a juvenile offender constitutes a final order for purposes of appeal.

              § 11.1011
              Dispositional hearing.
              (a) A dispositional hearing shall take place not more than 15 days after the adjudicatory hearing.
              (b) At the dispositional hearing, the children's court shall hear evidence on the question of proper disposition.
              (c) All the rights listed in § 11.906 shall be afforded the parties in the dispositional hearing.

              (d) At the dispositional hearing, the children's court shall consider any predisposition report, physician's report or social study it may have ordered and afford the parents an opportunity to controvert the factual contents and conclusions of the reports. The children's court shall also consider the alternative predisposition report prepared by the minor and his or her attorney, if any.
              (e) The dispositional order constitutes a final order for purposes of appeal.

              § 11.1012
              Dispositional alternatives.
              (a) If a minor has been adjudged a juvenile offender, the children's court may make the following disposition:
              (1) Place the minor on probation subject to conditions set by the children's court;
              (2) Place the minor in an agency or institution designated by the children's court; or
              (3) Order restitution to the aggrieved party.
              (b) The dispositional orders are to be in effect for the time limit set by the children's court, but no order may continue after the minor reaches 18 years of age, unless the dispositional order was made within six months of the minor's eighteenth birthday or after the minor had reached 18 years of age, in which case the disposition may not continue for more than six months.
              (c) The dispositional order is to be reviewed at the children's court discretion, but at least once every six months.

              § 11.1013
              Modification of dispositional order.
              (a) A dispositional order of the children's court may be modified upon a showing of a change of circumstances.
              (b) The children's court may modify a dispositional order at any time upon the motion of the minor or the minor's parents, guardian or custodian.
              (c) If the modification involves a change of custody, the children's court shall conduct a hearing pursuant to paragraph (d) of this section.
              (d) A hearing to review a dispositional order shall be conducted as follows:
              (1) All the rights listed in § 11.906 shall be afforded the parties in the hearing to review the dispositional order. The notice required by paragraph (a) of § 11.906 shall be given at least 48 hours before the hearing.
              (2) The children's court shall review the performance of the minor, the minor's parents, guardian or custodian, and other persons providing assistance to the minor and the minor's family.
              (3) In determining modification of disposition, the procedures prescribed in § 11.1011 of this part shall apply.
              (4) If the request for review of disposition is based upon an alleged violation of a court order, the children's court shall not modify its dispositional order unless it finds clear and convincing evidence of the violation.

              § 11.1014
              Medical examination.
              The children's court may order a medical examination for a minor who is alleged to be a juvenile offender.

            Subpart K—Minor-in-Need-of-Care Procedure

              § 11.1100
              Complaint.
              A complaint must be filed by a law enforcement officer or by the presenting officer and sworn to by a person who has knowledge of the facts alleged. The complaint shall be signed by the complaining witness and shall contain:
              (a) A citation to the specific section of this part which gives the children's court jurisdiction of the proceedings;
              (b) The name, age and address of the minor who is the subject of the complaint, if known; and
              (c) A plain and concise statement of the facts upon which the allegations are based, including the date, time and location at which the alleged facts occurred.

              § 11.1101
              Warrant.
              The children's court may issue a warrant, directing that a minor be taken into custody if the children's court finds there is probable cause to believe the minor is a minor-in-need-of-care.

              § 11.1102
              Custody.
              A minor may be taken into custody by a law enforcement officer if:

              (a) The officer has reasonable grounds to believe that the minor is a minor-in-need-of-care and that the minor is in immediate danger from his or her surroundings and that removal is necessary; or
              (b) A warrant pursuant to § 11.1101 of this part has been issued for the minor.

              § 11.1103
              Law enforcement officer's duties.
              Upon taking a minor into custody the officer shall:
              (a) Release the minor to the minor's parents, guardian or custodian and issue a verbal advice or warning as may be appropriate, unless shelter care is necessary.
              (b) If the minor is not released, make immediate and recurring efforts to notify the minor's parents, guardian or custodian to inform them that the minor has been taken into custody and inform them of their right to be present with the minor until an investigation to determine the need for shelter care is made by the children's court.

              § 11.1104
              Shelter care.
              (a) A minor alleged to be a minor-in-need-of-care may be detained, pending a court hearing, in the following places:
              (1) A foster care facility authorized under tribal or state law to provide foster care, group care or protective residence;
              (2) A private family home approved by the tribe; or
              (3) A shelter care facility operated by a licensed child welfare services agency and approved by the tribe.
              (b) A minor alleged to be a minor-in-need-of care may not be detained in a jail or other facility used for the detention of adults. If such minor is detained in a facility used for the detention of juvenile offenders, he or she must be detained in a room separate from juvenile offenders, and routine inspection of the room where the minor is detained must be conducted every 30 minutes to assure his or her safety and welfare.

              § 11.1105
              Preliminary inquiry.
              (a) If a minor is placed in shelter care, the children's court shall conduct a preliminary inquiry with 24 hours for the purpose of determining:
              (1) Whether probable cause exists to believe the minor is a minor-in-need-of care; and
              (2) Whether continued shelter care is necessary pending further proceedings.
              (b) If a minor has been released to the parents, guardian or custodian, the children's court shall conduct a preliminary inquiry within three days after receipt of the complaint for the sole purpose of determining whether probable cause exists to believe the minor is a minor-in-need-of-care.
              (c) If the minor's parents, guardian or custodian is not present at the preliminary inquiry, the children's court shall determine what efforts have been made to notify and obtain the presence of the parent, guardian or custodian. If it appears that further efforts are likely to produce the parent, guardian or custodian, the children's court shall recess for no more than 24 hours and direct that continued efforts be made to obtain the presence of the parents, guardian or custodian.
              (d) All the rights listed in § 11.906 of this part shall be afforded the parties in the minor-in-need-of care preliminary inquiry except that the court is not required to appoint counsel if the parties cannot afford one. Notice of the inquiry shall be given to the minor, and his or her parents, guardian or custodian and their counsel as soon as the time for the inquiry has been established.
              (e) The children's court shall hear testimony concerning:
              (1) The circumstances that gave rise to the complaint or the taking of the minor into custody; and
              (2) The need for shelter care.
              (f) If the children's court finds that probable cause exists to believe the minor is a minor-in-need-of-care, the minor shall be released to the parents, guardian or custodian, and ordered to appear at the adjudicatory hearing, unless:
              (1) There is reasonable cause to believe that the minor will run away and be unavailable for further proceedings;

              (2) There is reasonable cause to believe that the minor is in immediate danger from parents, guardian or custodian and that removal from them is necessary; or

              (3) There is a reasonable cause to believe that the minor will commit a serious act causing damage to person or property.
              (g) The children's court may release the minor pursuant to paragraph (f) of this section to a relative or other responsible adult tribal member if the parents, guardian or custodian of the minor consent to the release. If the minor is ten years to age or older, the minor and the parents, guardian or custodian must both consent to the release.
              (h) Upon finding that probable cause exists to believe that the minor is a minor-in-need-of-care and that there is a need for shelter care, the minor's shelter care shall be continued. Otherwise, the complaint shall be dismissed and the minor released.

              § 11.1106
              Investigation by the presenting officer.
              The presenting officer shall make an investigation following the preliminary inquiry or the release of the minor to the parents, guardian or custodian to determine whether the interests of the minor and the public require that further action be taken. Upon the basis of this investigation, the presenting officer may:
              (a) Determine that no further action be taken; or
              (b) File a petition pursuant to § 11.1107 of this part in the children's court to initiate further proceedings. The petition shall be filed within 48 hours of the preliminary inquiry if the minor is in shelter care. If the minor has been previously released to the parents, guardian or custodian, relative or responsible adult, the petition shall be filed within ten days of the preliminary inquiry.

              § 11.1107
              Petition.
              Proceedings under §§ 11.1100-11.1114 of this part shall be instituted by a petition filed by the presenting officer on behalf of the tribe and the interests of the minor. The petition shall state:
              (a) The name, birth date, and residence of the minor;
              (b) The names and residences of the minor's parents, guardian or custodian;
              (c) A citation to the specific section of this part which gives the children's court jurisdiction of the proceedings; and
              (d) If the minor is in shelter care, the place of shelter care and the time he or she was taken into custody.

              § 11.1108
              Date of hearing.
              Upon receipt of the minor-in-need-of-care petition, the children's court shall set a date for the hearing which shall not be more than 15 days after the children's court receives the petition from the presenting officer. If the adjudicatory hearing is not held within 15 days after the filing of the petition, it shall be dismissed unless;
              (a) The hearing is continued upon motion of the minor; or
              (b) The hearing is continued upon motion of the presenting officer by reason of the unavailability of material evidence or witnesses and the children's court finds the presenting officer has exercised due diligence to obtain the material evidence or witnesses and reasonable grounds exist to believe that the material evidence or witnesses will become available.

              § 11.1109
              Summons.
              (a) At least five working days prior to the adjudicatory hearing for a minor-in-need-of-care, the children's court shall issue summons to:
              (1) The minor;
              (2) The minor's parents, guardian or custodian; and
              (3) Any person the children's court or the minor believes necessary for the proper adjudication of the hearing.
              (b) The summons shall contain the name of the court; the title of the proceedings, and the date, time and place of the hearing.
              (c) A copy of the petition shall be attached to the summons.
              (d) The summons shall be delivered personally by a tribal law enforcement officer or appointee of the children's court. If the summons cannot be delivered personally, the court may deliver it by certified mail.

              § 11.1110
              Minor-in-need-of-care adjudicatory hearing.

              (a) The children's court shall conduct the adjudicatory hearing for the sole purpose of determining whether the minor is a minor-in-need-of-care. The hearing shall be private and closed.
              (b) All the rights listed in § 11.906 of this part shall be afforded the parties in the adjudicatory hearing, except that the court may not appoint counsel if the parties cannot afford one. The notice requirements of § 11.906(a) are met by a summons issued pursuant to § 11.1109.
              (c) The children's court shall hear testimony concerning the circumstances which gave rise to the complaint.
              (d) If the circumstances of the petition are sustained by clear and convincing evidence, the children's court shall find the minor to be a minor-in-need-of-care and proceed to the dispositional hearing.
              (e) A finding that a minor is a minor-in-need-of-care constitutes a final order for purposes of appeal.

              § 11.1111
              Minor-in-need-of-care dispositional hearing.
              (a) No later than 15 days after the adjudicatory hearing, a dispositional hearing shall take place to hear evidence on the question of proper disposition.
              (b) All the rights listed in § 11.906 of this part shall be afforded the parties in the dispositional hearing except the right to free court-appointed counsel. Notice of the hearing shall be given to the parties at least 48 hours before the hearing.
              (c) At the dispositional hearing the children's court shall consider any predisposition report or other study it may have ordered and afford the parties an opportunity to controvert the factual contents and conclusions of the reports. The children's court shall also consider the alternative predisposition report prepared by the minor and his or her attorney, if any.
              (d) The dispositional order constitutes a final order for purposes of appeal.

              § 11.1112
              Dispositional alternatives.
              (a) If a minor has been adjudged a minor-in-need-of-care, the children's court may:
              (1) Permit the minor to remain with his or her parents, guardian or custodian subject to such limitations and conditions as the court may prescribe; or, if reasonable efforts to have the minor return or remain in his or her own home are unsuccessful, the children's court may make whichever of the following dispositions is in the best interest of the minor;
              (2) Place the minor with a relative within the boundaries of the reservation subject to such limitations and conditions as the court may prescribe;
              (3) Place the minor in a foster home within the boundaries of the reservation which has been approved by the tribe subject to such limitations and conditions as the court may prescribe;
              (4) Place the minor in shelter care facilities designated by the court;
              (5) Place the minor in a foster home or a relative's home outside the boundaries of the reservation subject to such limitations and conditions as the court may prescribe; or
              (6) Recommend that termination proceedings begin.
              (b) Whenever a minor is placed in a home or facility located outside the boundaries of the reservation, the court may require the party receiving custody of the minor to sign an agreement that the minor will be returned to the court upon order of the court.
              (c) The dispositional orders are to be in effect for the time limit set by the children's court, but no order may continue after the minor reaches 18 years of age, unless the dispositional order was made within six months of the minor's eighteenth birthday, in which case the disposition may not continue for more than six months.
              (d) The dispositional orders are to be reviewed at the children's court discretion, but at least once every six months to determine the continuing need for and appropriateness of placement, to determine the extent of progress made, and to assess the probability of the minor's return to his or her home.
              (e) A permanency planning hearing must be held within 18 months after the original placement and every six months thereafter to determine the future status of the minor except when the minor is returned to his or her home and court supervision ceases.

              § 11.1113
              Modification of dispositional order.
              (a) A dispositional order of the children's court may be modified upon a showing of a change of circumstances.
              (b) The children's court may modify a dispositional order at any time upon motion of the minor or the minor's parents, guardian or custodian.
              (c) If the modification involves a change of custody, the children's court shall conduct a hearing pursuant to paragraph (d) of this section to review the dispositional order.
              (d) A hearing to review a dispositional order shall be conducted as follows:
              (1) All the rights listed in § 11.906 of this part shall be afforded the parties in the review of the disposition hearing except the right to free court-appointed counsel. Notice of the hearing shall be given the parties at least 48 hours before the hearing.
              (2) The children's court shall review the performance of the minor, the minor's parents, guardian or custodian, and other persons providing assistance to the minor and the minor's family.
              (3) In determining modification of disposition, the procedures prescribed in § 11.1111 of this part shall apply.
              (4) If the request for review of disposition is based upon an alleged violation of a court order, the children's court shall not modify its dispositional order unless it finds clear and convincing evidence of the violation.

              § 11.1114
              Termination.
              (a) Parental rights to a child may be terminated by the children's court according to the procedures in this section.
              (b) Proceedings to terminate parental rights shall be instituted by a petition filed by the presenting officer on behalf of the tribe or by the parents or guardian of the child. The petition shall state:
              (1) The name, birth date, and residence of the minor;
              (2) The names and residences of the minor's parents, guardian or custodian;
              (3) If the child is in detention or shelter care, the place of detention or shelter care and the time he was taken into custody; and
              (4) The reasons for the petition.
              (c) Upon receipt of the petition, the children's court shall set a date for the termination hearing which shall not be more than 15 days after the children's court receives the petition from the presenting officer. The hearing may be continued:
              (1) On motion of the minor's parents, guardian or custodian; or
              (2) Upon motion of the presenting officer by reason of the unavailability of material evidence or witnesses and the children's court finds the presenting officer has exercised due diligence to obtain the material evidence or witnesses and reasonable grounds exist to believe that the material evidence or witnesses will become available.
              (d) Summons:
              (1) At least five working days prior to the termination hearing, the children's court shall issue summons to the minor, the minor's parents, guardian or custodian, and any other person the court or the minor's parents, guardian or custodian believes necessary for the proper adjudication of the hearing.
              (2) The summons shall contain the name of the court, the title of the proceedings, and the date, time and place of the hearing.
              (3) A copy of the petition shall be attached to the summons.
              (4) The summons shall be delivered personally by a law enforcement officer or appointee of the children's court. If the summons cannot be delivered personally, the court may deliver it by certified mail.
              (e) The children's court shall conduct the termination hearing for the sole purpose of determining whether parental rights shall be terminated. The hearing shall be private and closed.
              (1) All the rights listed in § 11.906 shall be afforded the parties in the termination hearing except the right to a free court-appointed counsel. The minor's parents may not be compelled to be witnesses against, nor otherwise incriminate themselves.
              (2) The children's court shall hear testimony concerning the circumstances that gave rise to the petition, and the need for termination of parental rights.

              (3) The children's court may terminate parental rights if, following efforts to prevent or eliminate the need to remove the minor, it finds such efforts to have been unsuccessful, and it finds beyond a reasonable doubt that:
              (i) The child has been abandoned;
              (ii) The minor has suffered physical injuries, willfully and repeatedly inflicted by his or her parent(s) which cause or create a substantial risk of death, disfigurement, or impairment of bodily functions;
              (iii) The parent(s) has subjected the minor to willful and repeated acts of sexual abuse;
              (iv) The minor has suffered serious emotional or mental harm due to the act of the parent(s); or
              (v) The voluntary written consent of both parents has been acknowledged before the court.
              (f) Dispositional alternatives:
              (1) If parental rights to a child are terminated, the children's court shall place the minor in a foster care or shelter care facility which has been approved by the tribe, and follow the adoption procedures of the tribe, or, in their absence, the adoption procedures of the state within which it is located.
              (2) If parental rights to a child are not terminated, the children's court shall make a disposition according to § 11.1112 of this part.
              (g) The termination order constitutes a final order for purposes of appeal.
              (h) No adjudication of termination of parental rights shall affect the minor's enrollment status as a member of any tribe or the minor's degree of blood quantum of any tribe.

              § 11.1115
              Information collection.

              (a) The information collection requirements contained in § 11.600 and § 11.606 have been approved by the Office of Management and Budget under 44 U.S.C. 3501 et seq., and assigned approval number 1076-0094. The information is being collected to obtain a marriage license (§ 11.600) and a divorce decree (§ 11.606) from the Courts of Indian Offenses, and will be used by the courts to issue a marriage license or divorce decree. Response to this request is required to obtain a benefit.
              (b) Public reporting for this information collection is estimated to average .25 hours per response, including the time for reviewing instructions, gathering and maintaining data, and completing and reviewing the information collection. Direct comments regarding the burden estimate or any other aspect of this information collection to the Bureau of Indian Affairs, Information Collection Clearance Officer, Room 336-SIB, 1849 C Street, NW., Washington, DC 20240; and the Office of Information and Regulatory Affairs [Project 1076-0094], Office of Management and Budget, Washington, DC 20502.

            Subpart L—Child Protection and Domestic Violence Procedures

              Source:
              73 FR 39862, July 11, 2008, unless otherwise noted.

              § 11.1200
              Definitions.
              For purposes of this subpart:

                Domestic violence means to inflict physical harm, bodily injury, or sexual assault, or the fear of imminent physical harm, bodily injury, or sexual assault on a family member.

                Family member means any of the following:
              (1) A spouse;
              (2) A former spouse;
              (3) A person related by blood;
              (4) A person related by existing or prior marriage;
              (5) A person who resides or resided with the defendant;
              (6) A person with whom the defendant has a child in common; or
              (7) A person with whom the defendant is or was in a dating or intimate relationship.

                Parent means persons who have a child in common, regardless of whether they have been married or have lived together at any time.

              § 11.1202
              How to petition for an order of protection.
              A victim of domestic violence, or the parent, guardian of a victim, or a concerned adult may petition the court under this subpart for an order of protection.
              (a) The petition must be made under oath or accompanied by a sworn affidavit setting out specific facts describing the act of domestic violence.

              (b) The petitioner is not required to file for annulment, separation, or divorce in order to obtain an order of protection. However, the petition should state whether any legal action is pending between the petitioner and the respondent.
              (c) The Court may develop simplified petition forms with instructions for completion and make them available to petitioners not represented by counsel. Law enforcement agencies may keep the forms on hand and make them available upon request to victims of domestic violence.

              § 11.1204
              Obtaining an emergency order of protection.
              (a) When a victim files a petition for an order of protection under § 11.202(a), the court may immediately grant an ex parte emergency order of protection if the petition clearly shows that an act of domestic violence has occurred. The order must meet the content requirements of § 11.206 (a) and (b).
              (b) If the court does not immediately grant an emergency order of protection under paragraph (a) of this section, the court must either:
              (1) Within 72 hours after the victim files a petition, serve notice to appear upon both parties and hold a hearing on the petition for order of protection; or
              (2) If a notice of hearing cannot be served within 72 hours, issue an emergency order of protection.
              (c) If the court issues an ex parte emergency order of protection under paragraph (a) of this section, it must within 10 days hold a hearing on the question of continuing the order. If notice of hearing cannot be served within 10 days:
              (1) The emergency order of protection is automatically extended for 10 days; and
              (2) If after the 10-day extension, notice to appear cannot be served, the emergency order of protection expires.
              (d) If the court issues an ex parte emergency order of protection under paragraph (b)(2) of this section, it must cause the order to be served on the person alleged to have committed a family violence act and seek to hold a hearing as soon as possible. If a hearing cannot be held within 10 days, the petitioner may ask the court to renew the emergency protection order.

              § 11.1206
              Obtaining a regular (non-emergency) order of protection.
              Following a hearing and finding that an act of domestic violence occurred, the court may issue an order of protection. The order must meet the requirements of paragraph (a) of this section and may meet the requirements of paragraph (b) of this section. Either party may request a review hearing to amend or vacate the order of protection.
              (a) The order of protection must do all of the following:
              (1) Specifically describe in clear language the behavior the court has ordered he or she do or refrain from doing;
              (2) Give notice that violation of any provision of the order of protection constitutes contempt of court and may result in a fine or imprisonment, or both; and
              (3) Indicate whether the order of protection supersedes or alters prior orders pertaining to matters between the parties.
              (b) The order of protection may do any of the following:
              (1) Order the person who committed the act of domestic violence to refrain from acts or threats of violence against the petitioner or any other family member;
              (2) Order that the person who committed the act of domestic violence be removed from the home of the petitioner;
              (3) Grant sole possession of the residence or household to the petitioner during the period the order of protection is effective, or order the person who has committed an act of domestic violence to provide temporary suitable alternative housing for the petitioner and other family members to whom the respondent owes a legal obligation of support;
              (4) Award temporary custody of any children involved when appropriate and provide for visitation rights, child support, and temporary support for the petitioner on a basis which gives primary consideration to the safety of the petitioner and other household members;

              (5) Order the person who is found to have committed an act of domestic violence not to initiate contact with the petitioner;

              (6) Restrain the parties from transferring, concealing, encumbering, or otherwise disposing of one another's property or the joint property of the parties except in the usual course of business or for the necessities of life, and order the parties to account to the court for all such transferring, encumbrances, and expenditures made after the order is served or communicated; and
              (7) Order other injunctive relief as the court deems necessary for the protection of the petitioner, including orders to law enforcement agencies as provided by this subpart.

              § 11.1208
              Service of the protection order.
              When an order of protection is granted under this subpart:
              (a) The petitioner must file it with the clerk of the court;
              (b) The clerk of the court must send a copy to a law enforcement agency with jurisdiction over the area in which the court is located;
              (c) The order must be personally served upon the respondent, unless the respondent or his or her attorney was present at the time the order was issued; and
              (d) If the court finds the petitioner unable to pay court costs, the order will be served without cost to the petitioner.

              § 11.1210
              Duration and renewal of a regular protection order.
              An order of protection granted by the court:
              (a) Is effective for a fixed period of time, which is up to a maximum of 6 months; and
              (b) May be extended for good cause upon motion of the petitioner for an additional period of up to 6 months each time a petition is presented. A petitioner may request as many extensions as necessary provided that the court determines that good cause exists.

              § 11.1212
              Consequences of disobedience or interference.
              Any willful disobedience or interference with any court order constitutes contempt of court which may result in a fine or imprisonment, or both, in accordance with this part.

              § 11.1214
              Relationship of this subpart to other remedies.
              The remedies provided in this subpart are in addition to the other civil or criminal remedies available to the petitioner.

          Pt. 12
          PART 12—INDIAN COUNTRY LAW ENFORCEMENT

              Subpart A—Responsibilities
              Sec.
              12.1
              Who is responsible for the Bureau of Indian Affairs law enforcement function?
              12.2
              What is the role of the Bureau of Indian Affairs Director of Law Enforcement Services?
              12.3
              Who supervises Bureau of Indian Affairs criminal investigators?
              12.4
              Who supervises the Bureau of Indian Affairs uniformed police, detention, and conservation enforcement functions?

              Subpart B—Policies and Standards
              12.11
              Do I have to follow these regulations?
              12.12
              What about self-determination?
              12.13
              What happens if I do not follow the rules in this part?
              12.14
              Where can I find specific policies and standards for law enforcement functions in Indian country?

              Subpart C—Authority and Jurisdiction
              12.21
              What authority is given to Indian country law enforcement officers to perform their duties?
              12.22
              Can Bureau of Indian Affairs law enforcement officers enforce tribal laws?
              12.23
              What are the jurisdictional limits in Indian country?

              Subpart D—Qualifications and Training Requirements
              12.31
              Are there any minimum employment standards for Indian country law enforcement personnel?
              12.32
              Do minimum employment standards include a background investigation?
              12.33
              Are Indian country law enforcement officers paid less than other law enforcement officers?
              12.34
              Do minimum salaries and position classifications apply to a tribe that has contracted or compacted law enforcement under self-determination?
              12.35
              Do Indian country law enforcement officers complete any special training?
              12.36
              Does other law enforcement training count?

              Subpart E—Records and Information
              12.41
              Who keeps statistics for Indian country law enforcement activities?
              12.42
              Do Indian country law enforcement programs share information with their own communities or other agencies?

              Subpart F—Conduct
              12.51
              Must Indian country law enforcement officers follow a code of conduct?
              12.52
              How do I report misconduct?
              12.53
              Who investigates officer misconduct?
              12.54
              What can I do if I believe my civil rights have been violated?
              12.55
              Are there any limits on how much force an officer can use when performing law enforcement duties?

              Subpart G—Support Functions
              12.61
              Can I be paid for information that helps solve a crime?
              12.62
              Who decides what uniform an Indian country law enforcement officer can wear and who pays for it?
              12.63
              Do Indian country law enforcement officers perform other duties as well?

            Authority:
            5 U.S.C. 301; 25 U.S.C. 2, 9, 13, 2417, 2453, and 2802.

            Source:
            62 FR 15611, Apr. 2, 1997, unless otherwise noted.

            Subpart A—Responsibilities

              § 12.1
              Who is responsible for the Bureau of Indian Affairs law enforcement function?

              The Commissioner of Indian Affairs, or in the absence of a Commissioner, the Deputy Commissioner, is responsible for Bureau of Indian Affairs-operated and contracted law enforcement programs, and for overall policy development and implementation of the Indian Law Enforcement Reform Act, Public Law 101-379 (25 U.S.C. 2801 et seq.).

              § 12.2
              What is the role of the Bureau of Indian Affairs Director of Law Enforcement Services?
              The Director of the Office of Law Enforcement Services for the Bureau of Indian Affairs (Director) has been delegated the responsibility for the development of law enforcement and detention policies, standards, and management of all Bureau of Indian Affairs (BIA) criminal investigations, drug enforcement, training, internal affairs, inspection and evaluation, emergency response forces, and other national level Indian country law enforcement initiatives. The Director publishes these policies and standards in law enforcement manuals and handbooks. The Director is also directly responsible for developing crime prevention and outreach programs within Indian country law enforcement.

              § 12.3
              Who supervises Bureau of Indian Affairs criminal investigators?
              All BIA criminal investigators are supervised by other criminal investigators within the Office of Law Enforcement Services.

              § 12.4
              Who supervises the Bureau of Indian Affairs uniformed police, detention, and conservation enforcement functions?
              The agency superintendent is directly responsible for the operation and management of BIA uniformed police operations, detention facilities, and conservation enforcement operations at any agency having these programs. The agency superintendent must also ensure technical support is provided to any agency contracting the law enforcement and/or detention program.

            Subpart B—Policies and Standards

              § 12.11
              Do I have to follow these regulations?
              You must follow the minimum standards outlined in the regulations in this part if you are part of a BIA or tribal law enforcement program receiving Federal funding or operating under a BIA law enforcement commission.

              § 12.12
              What about self-determination?

              The regulations in this part are not intended to discourage contracting of Indian country law enforcement programs under the Indian Self-determination and Education Assistance Act (Pub. L. 93-638, as amended, 25 U.S.C. 450). The Deputy Commissioner of Indian Affairs will ensure minimum standards are maintained in high risk activities where the Federal government retains liability and the responsibility for settling tort claims arising from contracted law enforcement programs. It is not fair to law abiding citizens of Indian country to have anything less than a professional law enforcement program in their community. Indian country law enforcement programs that receive Federal funding and/or commissioning will be subject to a periodic inspection or evaluation to provide technical assistance, to ensure compliance with minimum Federal standards, and to identify necessary changes or improvements to BIA policies.

              § 12.13
              What happens if I do not follow the rules in this part?
              Your BIA law enforcement commission may be revoked, your law enforcement contract may be canceled, and you may no longer be eligible for tribal shares allocated from the law enforcement budget.

              § 12.14
              Where can I find specific policies and standards for law enforcement functions in Indian country?
              BIA will ensure that all Indian country law enforcement programs are provided a copy of the most current policy manuals and handbooks. Every Indian country law enforcement program covered by the regulations in this part must maintain an effective and efficient law enforcement program meeting minimal qualitative standards and procedures specified in chapter 68 Bureau of Indian Affairs Manual (BIAM) and the Law Enforcement Handbook.

            Subpart C—Authority and Jurisdiction

              § 12.21
              What authority is given to Indian country law enforcement officers to perform their duties?
              BIA law enforcement officers are commissioned under the authority established in 25 U.S.C. 2803. BIA may issue law enforcement commissions to other Federal, State, local and tribal full-time certified law enforcement officers to obtain active assistance in enforcing applicable Federal criminal statutes, including Federal hunting and fishing regulations, in Indian country.
              (a) BIA will issue commissions to other Federal, State, local and tribal full-time certified law enforcement officers only after the head of the local government or Federal agency completes an agreement with the Commissioner of Indian Affairs asking that BIA issue delegated commissions. The agreement must include language that allows the BIA to evaluate the effectiveness of these special law enforcement commissions and to investigate any allegations of misuse of authority.
              (b) Tribal law enforcement officers operating under a BIA contract or compact are not automatically commissioned as Federal officers; however, they may be commissioned on a case-by-case basis.

              § 12.22
              Can Bureau of Indian Affairs law enforcement officers enforce tribal laws?
              BIA officers will enforce tribal laws only with the permission of the tribe. Local programs are encouraged to make arrangements and agreements with local jurisdictions to facilitate law enforcement objectives.

              § 12.23
              What are the jurisdictional limits in Indian country?
              The Department of the Interior and the Department of Justice must maintain and periodically review and update a memorandum of understanding describing the relationship between the Federal Bureau of Investigation and the Bureau of Indian Affairs in the investigation and prosecution of major crimes in Indian country. Any law enforcement programs performing duties under the authority of 25 U.S.C. 2803 must follow the guidelines in the memorandum of understanding and any local United States Attorney's guidelines for the investigation and prosecution of Federal crimes.

            Subpart D—Qualifications and Training Requirements

              § 12.31
              Are there any minimum employment standards for Indian country law enforcement personnel?

              The Director must develop, maintain, and periodically review the qualification standards, including medical qualification standards, for all BIA law enforcement, detention, and conservation enforcement occupational series. The standards will be no less stringent than the minimum standards established by the U.S. Office of Personnel Management (OPM) for these occupational series, and may exceed the OPM standards. BIA standards are available for review at any BIA personnel office. All tribal programs are encouraged to develop standards at least as stringent as those established for BIA officers.

              § 12.32
              Do minimum employment standards include a background investigation?
              Law enforcement authority is only entrusted to personnel possessing adequate education and/or experience, training, aptitude, and high moral character. All Indian country law enforcement programs receiving Federal funding and/or authority must ensure that all law enforcement officers successfully complete a thorough background investigation no less stringent than required of a Federal officer performing the same duties. The background investigations of applicants and employees must be adjudicated by trained and qualified security professionals. All background investigations must be documented and available for inspection by the Bureau of Indian Affairs.

              § 12.33
              Are Indian country law enforcement officers paid less than other law enforcement officers?
              An officer's pay is determined by his/her grade and classification. The Commissioner of Indian Affairs must ensure that all BIA law enforcement officer positions are established at no lower grade level on the Federal scale than similar Federal law enforcement officer positions in other agencies. No BIA position performing commissioned law enforcement duties will be classified in other than the GS 0083, police officer series, for uniformed officers and the GS 1811, criminal investigating series, for criminal investigators.

              § 12.34
              Do minimum salaries and position classifications apply to a tribe that has contracted or compacted law enforcement under self-determination?
              Any contract or compact with the BIA to provide law enforcement services for an Indian tribe must require a law enforcement officer to be paid at least the same salary as a BIA officer performing the same duties.

              § 12.35
              Do Indian country law enforcement officers complete any special training?
              Law enforcement personnel of any program funded by the Bureau of Indian Affairs must not perform law enforcement duties until they have successfully completed a basic law enforcement training course prescribed by the Director. The Director will also prescribe mandatory supplemental and in-service training courses.

              § 12.36
              Does other law enforcement training count?
              All requests for evaluation of equivalent training must be submitted to the Indian Police Academy for review, with final determination made by the Director. Requests for a waiver of training requirements to use personnel before completing the required courses of instruction must be submitted to the Director and approved or disapproved by the Commissioner of Indian Affairs. In no case will such a waiver allow personnel to be used in any position for more than one year without achieving training standards. Failure to complete basic training requirements will result in removal from a law enforcement position.

            Subpart E—Records and Information

              § 12.41
              Who keeps statistics for Indian country law enforcement activities?
              The Director maintains a criminal justice information system for Indian country. The Director will prescribe the types of data to be collected and the reporting format to be used to collect information and assemble reports on crime reported in Indian country. These reports may be provided to the Department of Justice. Any law enforcement program receiving funding from the BIA must use the same reporting format and submit the same statistical reports to the Office of Law Enforcement Services as prescribed by the Director and as are required of all BIA law enforcement programs.

              § 12.42
              Do Indian country law enforcement programs share information with their own communities or other agencies?
              At intervals established by the Director, each BIA criminal investigations program, and any investigations program receiving BIA funds will consult with local tribal leaders and managers of local patrol and detention programs. They will discuss the quality of the local investigations program and offer feedback and technical assistance. There will be no requirement to disclose confidential investigative information or to compromise ongoing investigations during this process.

            Subpart F—Conduct

              § 12.51
              Must Indian country law enforcement officers follow a code of conduct?
              All law enforcement programs receiving Bureau of Indian Affairs funding or commissioning must establish a law enforcement code of conduct which establishes specific guidelines for conduct on and off duty, impartiality, and professional conduct in the performance of duty, and acceptance of gifts or favors. Each officer must acknowledge in writing receiving and understanding of this code of conduct. The acknowledgment will remain on file with the law enforcement program manager as long as the officer is employed there. Training will be conducted on this code of conduct and other ethics issues at least once each year.

              § 12.52
              How do I report misconduct?
              The Director will develop and maintain a reporting system that allows any resident of or visitor to Indian country to report officer misconduct. Each law enforcement program in Indian country will maintain instructions on how to register a complaint. An overview of these steps must be posted for public viewing at each law enforcement facility in Indian country.

              § 12.53
              Who investigates officer misconduct?
              The Director, Office of Law Enforcement Services maintains an internal affairs program that investigates all allegations of misconduct by BIA officers, and any officer receiving funding and/or authority from the BIA. All allegations of misconduct must be thoroughly investigated and appropriate action taken when warranted. Any person having knowledge of officer misconduct must report that information to the officer's supervisor. The supervisor must immediately report allegations to the internal affairs unit. Depending upon the severity of the allegation, the matter may be dealt with locally or it will be investigated by the internal affairs unit. Failure of any BIA employee to report known allegations may be considered misconduct in itself. Citizens may report officer misconduct directly to the internal affairs unit if that is more practical.

              § 12.54
              What can I do if I believe my civil rights have been violated?
              All allegations of civil rights violations must be reported immediately to the internal affairs unit. That office will ensure that allegations are immediately reported to the Civil Rights Division of the U. S. Department of Justice through established procedures. BIA's internal affairs unit may also investigate the matter and make recommendations for additional action as necessary.

              § 12.55
              Are there any limits on how much force an officer can use when performing law enforcement duties?
              The Director will develop and maintain the use of force policy for all BIA law enforcement personnel, and for programs receiving BIA funding or authority. Training in the use of force, to include non-lethal measures, will be provided annually. All officers will successfully complete a course of instruction in firearms, to include judgement pistol shooting, approved by the Indian Police Academy before carrying a firearm on or off duty.

            Subpart G—Support Functions

              § 12.61
              Can I be paid for information that helps solve a crime?

              The Director can spend money to purchase evidence or information, or to offer a reward, in the investigation of a crime. This is subject to the availability of funds. This authority may be delegated in writing to supervisory criminal investigators within the Office of Law Enforcement Services in the BIA. The Director must develop policies and procedures for the expenditure, control, and audit of these funds before their use.

              § 12.62
              Who decides what uniform an Indian country law enforcement officer can wear and who pays for it?
              Each local law enforcement program must establish its own uniform requirements for patrol and detention personnel. Uniformed BIA police officers may be paid an annual uniform allowance not to exceed $400. Local programs may provide uniforms and related equipment to officers in lieu of this payment. All law enforcement officers must also have their official identification on their person at all times when performing law enforcement duties. Uniforms, when worn, will be plainly distinguishable from the uniforms of any non-law enforcement personnel working on the reservation.

              § 12.63
              Do Indian country law enforcement officers perform other duties as well?
              Law enforcement commissions will only be issued by the Bureau of Indian Affairs to persons occupying positions as full-time officers. Bureau of Indian Affairs funded or commissioned criminal investigators will not be responsible for supervising or managing any patrol, detention, or other uniformed police programs.

          Pt. 13
          PART 13—TRIBAL REASSUMPTION OF JURISDICTION OVER CHILD CUSTODY PROCEEDINGS

              Subpart A—Purpose
              Sec.
              13.1
              Purpose.
              13.2
              Information collection.

              Subpart B—Reassumption
              13.11
              Contents of reassumption petitions.
              13.12
              Criteria for approval of reassumption petitions.
              13.13
              Technical assistance prior to petitioning.
              13.14
              Secretarial review procedure.
              13.15
              Administrative appeals.
              13.16
              Technical assistance after disapproval.

            Authority:
            25 U.S.C. 1952.

            Source:
            44 FR 45095, July 31, 1979, unless otherwise noted.

            Subpart A—Purpose

              § 13.1
              Purpose.
              (a) The regulations of this part establish the procedures by which an Indian tribe that occupies a reservation as defined in 25 U.S.C. 1903(10) over which a state asserts any jurisdiction pursuant to the provisions of the Act of August 15, 1953 (67 Stat. 588) Pub. L. 83-280, or pursuant to any other federal law (including any special federal law applicable only to a tribe or tribes in Oklahoma), may reassume jurisdiction over Indian child custody proceedings as authorized by the Indian Child Welfare Act, Pub. L. 95-608, 92 Stat. 3069, 25 U.S.C. 1918.
              (b) On some reservations there are disputes concerning whether certain federal statutes have subjected Indian child custody proceedings to state jurisdiction or whether any such jurisdiction conferred on a state is exclusive of tribal jurisdiction. Tribes located on those reservations may wish to exercise exclusive jurisdiction or other jurisdiction currently exercised by the state without the necessity of engaging in protracted litigation. The procedures in this part also permit such tribes to secure unquestioned exclusive, concurrent or partial jurisdiction over Indian child custody matters without relinquishing their claim that no Federal statute had ever deprived them of that jurisdiction.
              (c) Some tribes may wish to join together in a consortium to establish a single entity that will exercise jurisdiction over all their members located on the reservations of tribes participating in the consortium. These regulations also provide a procedure by which tribes may reassume jurisdiction through such a consortium.

              (d) These regulations also provide for limited reassumptions including jurisdiction restricted to cases transferred from state courts under 25 U.S.C. 1911(b) and jurisdiction over limited geographical areas.

              (e) Unless the petition for reassumption specifically states otherwise, where a tribe reassumes jurisdiction over the reservation it occupies, any land or community occupied by that tribe which subsequently acquires the status of reservation as defined in 25 U.S.C. 1903(10) also becomes subject to tribal jurisdiction over Indian child custody matters.

              § 13.2
              Information collection.

              The information collection requirement contained in § 13.11 has been approved by the Office of Management and Budget under 44 U.S.C. 3501 et seq. and assigned clearance number 1076-0112. The information is being collected when federally recognized tribes request reassumption of jurisdiction over child custody proceedings. The information will be used to determine if reassumption of jurisdiction over Indian child custody proceedings is feasible. Response is required to obtain a benefit.
              [53 FR 21994, June 13, 1988]

            Subpart B—Reassumption

              § 13.11
              Contents of reassumption petitions.
              (a) Each petition to reassume jurisdiction over Indian child custody proceedings and the accompanying plan shall contain, where available, the following information in sufficient detail to permit the Secretary to determine whether reassumption is feasible:
              (1) Full name, address and telephone number of the petitioning tribe or tribes.
              (2) A resolution by the tribal governing body supporting the petition and plan. If the territory involved is occupied by more than one tribe and jurisdiction is to be reassumed over all Indians residing in the territory, the governing body of each tribe involved must adopt such a resolution. A tribe that shares territory with another tribe or tribes may reassume jurisdiction only over its own members without obtaining the consent of the other tribe or tribes. Where a group of tribes form a consortium to reassume jurisdiction, the governing body of each participating tribe must submit a resolution.
              (3) The proposed date on which jurisdiction would be reassumed.
              (4) Estimated total number of members in the petitioning tribe or tribes, together with an explanation of how the number was estimated.
              (5) Current criteria for membership in the tribe or tribes.
              (6) Explanation of procedure by which a participant in an Indian child custody proceeding may determine whether a particular individual is a member of a petitioning tribe.
              (7) Citation to provision in tribal constitution or similar governing document, if any, that authorizes the tribal governing body to exercise jurisdiction over Indian child custody matters.
              (8) Description of the tribal court as defined in 25 U.S.C. 1903(12) that has been or will be established to exercise jurisdiction over Indian child custody matters. The description shall include an organization chart and budget for the court. The source and amount of non-tribal funds that will be used to fund the court shall be identified. Funds that will become available only when the tribe reassumes jurisdiction may be included.
              (9) Copy of any tribal ordinances or tribal court rules establishing procedures or rules for the exercise of jurisdiction over child custody matters.
              (10) Description of child and family support services that will be available to the tribe or tribes when jurisdiction reassumed. Such services include any resource to maintain family stability or provide support for an Indian child in the absence of a family—regardless of whether or not they are the type of services traditionally employed by social services agencies. The description shall include not only those resources of the tribe itself, but also any state or federal resources that will continue to be available after reassumption of jurisdiction.
              (11) Estimate of the number of child custody cases expected during a year together with an explanation of how the number was estimated.

              (12) Copy of any tribal agreements with states, other tribes or non-Indian local governments relating to child custody matters.

              (b) If the petition is for jurisdiction other than transferral jurisdiction under 25 U.S.C. 1911(b), the following information shall also be included in the petition and plan:
              (1) Citation of the statute or statutes upon which the state has based its assertion of jurisdiction over Indian child custody matters.
              (2) Clear and definite description of the territory over which jurisdiction will be reassumed together with a statement of the size of the territory in square miles.
              (3) If a statute upon which the state bases its assertion of jurisdiction is a surplus land statute, a clear and definite description of the reservation boundaries that will be reestablished for purposes of the Indian Child Welfare Act.
              (4) Estimated total number of Indian children residing in the affected territory together with an explanation of how the number was estimated.

              § 13.12
              Criteria for approval of reassumption petitions.
              (a) The Assistant Secretary—Indian Affairs shall approve a tribal petition to reassume jurisdiction over Indian child custody matters if:
              (1) Any reservation, as defined in 25 U.S.C. 1903(10), presently affected by the petition is presently occupied by the petitioning tribe or tribes;
              (2) The constitution or other governing document, if any, of the petitioning tribe or tribes authorizes the tribal governing body or bodies to exercise jurisdiction over Indian child custody matters;
              (3) The information and documents required by § 13.11 of this part have been provided;
              (4) A tribal court, as defined in 25 U.S.C. 1903(12), has been established or will be established before reassumption and that tribal court will be able to exercise jurisdiction over Indian child custody matters in a manner that meets the requirements of the Indian Civil Rights Act, 25 U.S.C. 1302;
              (5) Child care services sufficient to meet the needs of most children the tribal court finds must be removed from parental custody are available or will be available at the time of reassumption of jurisdiction; and
              (6) The tribe or tribes have established a procedure for clearly identifying persons who will be subject to the jurisdiction of the tribe or tribes upon reassumption of jurisdiction.
              (b) If the technical assistance provided by the Bureau to the tribe to correct any deficiency which the Assistant Secretary—Indian Affairs has identified as a basis for disapproving a petition for reassumption of exclusive jurisdiction has proved unsuccessful in eliminating entirely such problem, the Bureau, at the request of the tribe, shall assist the tribe to assert whatever partial jurisdiction as provided in 25 U.S.C. 1918(b) that is feasible and desired by the tribe. In the alternative, the Bureau, if requested by the concerned tribe, shall assist the tribe to enter into agreements with a state or states regarding the care and custody of Indian children and jurisdiction over Indian child custody proceedings, including agreements which may provide for the orderly transfer of jurisdiction to the tribe on a case-by-case basis or agreements which provide for concurrent jurisdiction between the state and the Indian tribe.

              § 13.13
              Technical assistance prior to petitioning.
              (a) Upon the request of a tribe desiring to reassume jurisdiction over Indian child custody matters, Bureau agency and Area Offices shall provide technical assistance and make available any pertinent documents, records, maps or reports in the Bureau's possession to enable the tribe to meet the requirements for Secretarial approval of the petition.
              (b) Upon the request of such a tribe, to the extent funds are available, the Bureau may provide funding under the procedures established under 25 CFR 23.22 to assist the tribe in developing the tribal court and child care services that will be needed when jurisdiction is reassumed.

              § 13.14
              Secretarial review procedure.

              (a) Upon receipt of the petition, the Assistant Secretary—Indian Affairs shall cause to be published in the Federal Register a notice stating that the petition has been received and is under review and that it may be inspected and copied at the Bureau agency office that serves the petitioning tribe or tribes.
              (1) No final action shall be taken until 45 days after the petition has been received.

              (2) Notice that a petition has been disapproved shall be published in the Federal Register no later than 75 days after the petition has been received.
              (3) Notice that a petition has been approved shall be published on a date requested by the petitioning tribe or within 75 days after the petition has been received—whichever is later.
              (b) Notice of approval shall include a clear and definite description of the territory presently subject to the reassumption of jurisdiction and shall state the date on which the reassumption becomes effective. A copy of the notice shall immediately be sent to the petitioning tribe and to the attorney general, governor and highest court of the affected State or States.
              (c) Reasons for disapproval of a petition shall be sent immediately to the petitioning tribe or tribes.
              (d) When a petition has been disapproved a tribe or tribes may repetition after taking action to overcome the deficiencies of the first petition.

              § 13.15
              Administrative appeals.
              The decision of the Assistant Secretary—Indian Affairs may be appealed under procedures established in 43 CFR 4.350-4.369. 1

                  1 Sections 4.350-4.369 of 43 CFR part 4, were removed at 46 FR 7335, Jan. 23, 1981.

              § 13.16
              Technical assistance after disapproval.
              If a petition is disapproved, the Bureau shall immediately offer technical assistance to the tribal governing body for the purpose of overcoming the defect in the petition or plan that resulted in the disapproval.

        SUBCHAPTER C—PROBATE

          Pt. 15
          PART 15—PROBATE OF INDIAN ESTATES, EXCEPT FOR MEMBERS OF THE OSAGE NATION AND THE FIVE CIVILIZED TRIBES

              Subpart A—Introduction
              Sec.
              15.1
              What is the purpose of this part?
              15.2
              What definitions do I need to know?
              15.3
              Who can make a will disposing of trust or restricted land or trust personalty?
              15.4
              What are the requirements for a valid will?
              15.5
              May I revoke my will?
              15.6
              May my will be deemed revoked by the operation of the law of any State?
              15.7
              What is a self-proved will?
              15.8
              May I make my will, codicil, or revocation self-proved?
              15.9
              What information must be included in an affidavit for a self-proved will, codicil, or revocation?
              15.10
              What assets will the Secretary probate?
              15.11
              What are the basic steps of the probate process?
              15.12
              What happens if assets in a trust estate may be diminished or destroyed while the probate is pending?

              Subpart B—Starting the Probate Process
              15.101
              When should I notify the agency of a death of a person owning trust or restricted property?
              15.102
              Who may notify the agency of a death?
              15.103
              How do I begin the probate process?
              15.104
              Does the agency need a death certificate to prepare a probate file?
              15.105
              What other documents does the agency need to prepare a probate file?
              15.106
              May a probate case be initiated when an owner of an interest has been absent?
              15.107
              Who prepares the probate file?
              15.108
              If the decedent was not an enrolled member of a tribe or was a member of more than one tribe, who prepares the probate file?

              Subpart C—Preparing the Probate File
              15.201
              What will the agency do with the documents that I provide?
              15.202
              What items must the agency include in the probate file?
              15.203
              What information must Tribes provide BIA to complete the probate file?
              15.204
              When is a probate file complete?

              Subpart D—Obtaining Emergency Assistance and Filing Claims
              15.301
              May I receive funds from the decedent's IIM account for funeral services?
              15.302
              May I file a claim against an estate?
              15.303
              Where may I file my claim against an estate?
              15.304
              When must I file my claim?
              15.305
              What must I include with my claim?

              Subpart E—Probate Processing and Distributions
              15.401
              What happens after BIA prepares the probate file?
              15.402
              What happens after the probate file is referred to OHA?
              15.403
              What happens after the probate order is issued?

              Subpart F—Information and Records
              15.501
              How may I find out the status of a probate?
              15.502
              Who owns the records associated with this part?
              15.503
              How must records associated with this part be preserved?
              15.504
              Who may inspect records and records management practices?
              15.505
              How does the Paperwork Reduction Act affect this part?

            Authority:
            5 U.S.C. 301; 25 U.S.C. 2, 9, 372-74, 410, 2201 et seq.; 44 U.S.C. 3101 et seq.

            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, and part 30; Funds of deceased Indians other than the Five Civilized Tribes, see title 25 Code of Federal Regulations, part 115.

            Source:
            73 FR 67278, Nov. 13, 2008, unless otherwise noted.

            Subpart A—Introduction

              § 15.1
              What is the purpose of this part?

              (a) This part contains the procedures that we follow to initiate the probate of the estate of a deceased person for whom the United States holds an interest in trust or restricted land or trust personalty. This part tells you how to file the necessary documents to probate the estate. This part also describes how probates will be processed by the Bureau of Indian Affairs (BIA), and when probates will be forwarded to the Office of Hearings and Appeals (OHA) for disposition.
              (b) The following provisions do not apply to Alaska property interests:
              (1) Section 15.202(c), (d), (e)(2), (n), and (o); and
              (2) Section 15.401(b).
              [73 FR 67278, Nov. 13, 2008, as amended at 76 FR 7505, Feb. 10, 2011]

              § 15.2
              What definitions do I need to know?

                Act means the Indian Land Consolidation Act and its amendments, including the American Indian Probate Reform Act of 2004 (AIPRA), Pub. L. 108-374, as codified at 25 U.S.C. 2201 et seq.

                Administrative law judge (ALJ) means an administrative law judge with the Office of Hearings and Appeals appointed under the Administrative Procedure Act, 5 U.S.C. 3105.

                Affidavit means a written declaration of facts by a person that is signed by that person, swearing or affirming under penalty of perjury that the facts declared are true and correct to the best of that person's knowledge and belief.

                Agency means:

              (1) The Bureau of Indian Affairs (BIA) agency office, or any other designated office in BIA, having jurisdiction over trust or restricted land and trust personalty; and
              (2) Any office of a tribe that has entered into a contract or compact to fulfill the probate function under 25 U.S.C. 450f or 458cc.

                Attorney Decision Maker (ADM) means an attorney with OHA who conducts a summary probate proceeding and renders a decision that is subject to de novo review by an administrative law judge or Indian probate judge.

                BIA means the Bureau of Indian Affairs within the Department of the Interior.

                Child means a natural or adopted child.

                Codicil means a supplement or addition to a will, executed with the same formalities as a will. It may explain, modify, add to, or revoke provisions in an existing will.

                Consolidation agreement means a written agreement under the provisions of 25 U.S.C. 2206(e) or 2206(j)(9), entered during the probate process, approved by the judge, and implemented by the probate order, by which a decedent's heirs and devisees consolidate interests in trust or restricted land.

                Creditor means any individual or entity that has a claim for payment from a decedent's estate.

                Day means a calendar day.

                Decedent means a person who is deceased.

                Decision or order (or decision and order) means:
              (1) A written document issued by a judge making determinations as to heirs, wills, devisees, and the claims of creditors, and ordering distribution of trust or restricted land or trust personalty;
              (2) The decision issued by an attorney decision maker in a summary probate proceeding; or
              (3) A decision issued by a judge finding that the evidence is insufficient to determine that a person is dead by reason of unexplained absence.

                Department means the Department of the Interior.

                Devise means a gift of property by will. Also, to give property by will.

                Devisee means a person or entity that receives property under a will.

                Eligible heir means, for the purposes of the Act, any of a decedent's children, grandchildren, great grandchildren, full siblings, half siblings by blood, and parents who are any of the following:
              (1) Indian;
              (2) Lineal descendents within two degrees of consanguinity of an Indian; or
              (3) Owners of a trust or restricted interest in a parcel of land for purposes of inheriting—by descent, renunciation, or consolidation agreement—another trust or restricted interest in such parcel from the decedent.

                Estate means the trust or restricted land and trust personalty owned by the decedent at the time of death.

                Formal probate proceeding means a proceeding, conducted by a judge, in which evidence is obtained through the testimony of witnesses and the receipt of relevant documents.

                Heir means any individual or entity eligible to receive property from a decedent in an intestate proceeding.

                Individual Indian Money (IIM) account 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.

                Indian means, for the purposes of the Act, any of the following:
              (1) Any person who is a member of a federally recognized Indian tribe is eligible to become a member of any federally recognized Indian tribe, or is an owner (as of October 27, 2004) of a trust or restricted interest in land;
              (2) Any person meeting the definition of Indian under 25 U.S.C. 479; or
              (3) With respect to the inheritance and ownership of trust or restricted land in the State of California under 25 U.S.C. 2206, any person described in paragraph (1) or (2) of this definition or any person who owns a trust or restricted interest in a parcel of such land in that State.

                Indian probate judge (IPJ) means an attorney with OHA, other than an ALJ, to whom the Secretary has delegated the authority to hear and decide Indian probate cases.

                Interested party means:
              (1) Any potential or actual heir;
              (2) Any devisee under a will;
              (3) Any person or entity asserting a claim against a decedent's estate;
              (4) Any tribe having a statutory option to purchase the trust or restricted property interest of a decedent; or
              (5) A co-owner exercising a purchase option.

                Intestate means that the decedent died without a valid will as determined in the probate proceeding.

                Judge means an ALJ or IPJ.

                Lockbox means a centralized system within OST for receiving and depositing trust fund remittances collected by BIA.

                LTRO means the Land Titles and Records Office within BIA.

                OHA means the Office of Hearings and Appeals within the Department of the Interior.

                OST means the Office of the Special Trustee for American Indians within the Department of the Interior.

                Probate means the legal process by which applicable tribal, Federal, or State law that affects the distribution of a decedent's estate is applied in order to:
              (1) Determine the heirs;
              (2) Determine the validity of wills and determine devisees;
              (3) Determine whether claims against the estate will be paid from trust personalty; and
              (4) Order the transfer of any trust or restricted land or trust personalty to the heirs, devisees, or other persons or entities entitled by law to receive them.

                Purchase option at probate means the process by which eligible purchasers can purchase a decedent's interest during the probate proceeding.

                Restricted property means real property, the title to which is held by an Indian but which cannot be alienated or encumbered without the Secretary's consent. For the purpose of probate proceedings, restricted property is treated as if it were trust property. Except as the law may provide otherwise, the term “restricted property” as used in this part does not include the restricted lands of the Five Civilized Tribes of Oklahoma or the Osage Nation.

                Secretary means the Secretary of the Interior or an authorized representative.

                Summary probate proceeding means the consideration of a probate file without a hearing. A summary probate proceeding may be conducted if the estate involves only an IIM account that did not exceed $5,000 in value on the date of the decedent's death.

                Superintendent means a BIA Superintendent or other BIA official, including a field representative or one holding equivalent authority.

                Testate means that the decedent executed a valid will as determined in the probate proceeding.

                Testator means a person who has executed a valid will as determined in the probate proceeding.

                Trust personalty means all tangible personal property, funds, and securities of any kind that are held in trust in an IIM account or otherwise supervised by the Secretary.

                Trust property means real or personal property, or an interest therein, the title to which is held in trust by the United States for the benefit of an individual Indian or tribe.

                We or us means the Secretary, an authorized representative of the Secretary, or the authorized employee or representative of a tribe performing probate functions under a contract or compact approved by the Secretary.

                Will means a written testamentary document that was executed by the decedent and attested to by two disinterested adult witnesses, and that states who will receive the decedent's trust or restricted property.

                You or I means an interested party, as defined herein, with an interest in the decedent's estate unless the context requires otherwise.
              [73 FR 67278, Nov. 13, 2008, as amended at 76 FR 7505, Feb. 10, 2011]

              § 15.3
              Who can make a will disposing of trust or restricted land or trust personalty?
              Any person 18 years of age or over and of testamentary capacity, who has any right, title, or interest in trust or restricted land or trust personalty, may dispose of trust or restricted land or trust personalty by will.

              § 15.4
              What are the requirements for a valid will?
              You must meet the requirements of § 15.3, date and execute your will, in writing and have it attested by two disinterested adult witnesses.

              § 15.5
              May I revoke my will?
              Yes. You may revoke your will at any time. You may revoke your will by any means authorized by tribal or Federal law, including executing a subsequent will or other writing with the same formalities as are required for execution of a will.

              § 15.6
              May my will be deemed revoked by operation of the law of any State?
              No. A will that is subject to the regulations of this subpart will not be deemed to be revoked by operation of the law of any State.

              § 15.7
              What is a self-proved will?
              A self-proved will is a will with attached affidavits, signed by the testator and the witnesses before an officer authorized to administer oaths, certifying that they complied with the requirements of execution of the will.

              § 15.8
              May I make my will, codicil, or revocation self-proved?
              Yes. A will, codicil, or revocation may be made self-proved as provided in this section.
              (a) A will, codicil, or revocation may be made self-proved by the testator and attesting witnesses at the time of its execution.
              (b) The testator and the attesting witnesses must sign the required affidavits before an officer authorized to administer oaths, and the affidavits must be attached to the will, codicil, or revocation.

              § 15.9
              What information must be included in an affidavit for a self-proved will, codicil, or revocation?
              (a) A testator's affidavit must contain substantially the following content:

                Tribe of ____ or
                State of ____
                County of ____.

                I, ____, swear or affirm under penalty of perjury that, on the __ day of ____, 20__, I requested ____and ____ to act as witnesses to my will; that I declared to them that the document was my last will; that I signed the will in the presence of both witnesses; that they signed the will as witnesses in my presence and in the presence of each other; that the will was read and explained to me (or read by me), after being prepared and before I signed it, and it clearly and accurately expresses my wishes; and that I willingly made and executed the will as my free and voluntary act for the purposes expressed in the will.

                Testator

                (b) Each attesting witness's affidavit must contain substantially the following content:

                We, ____and ____, swear or affirm under penalty of perjury that on the __ day of ____, 20__, ____ of the State of ____, published and declared the attached document to be his/her last will, signed the will in the presence of both of us, and requested both of us to sign the will as witnesses; that we, in compliance with his/her request, signed the will as witnesses in his/her presence and in the presence of each other; and that the testator was not acting under duress, menace, fraud, or undue influence of any person, so far as we could determine, and in our opinion was mentally capable of disposing of all his/her estate by will.

                Witness

                Witness

                Subscribed and sworn to or affirmed before me this __ day of ____, 20__, by ____ testator, and by ____ and ____, attesting witnesses.

                (Title)

              § 15.10
              What assets will the Secretary probate?
              (a) We will probate only the trust or restricted land, or trust personalty owned by the decedent at the time of death.
              (b) We will not probate the following property:
              (1) Real or personal property other than trust or restricted land or trust personalty owned by the decedent at the time of death;
              (2) Restricted land derived from allotments made to 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 owned by Osage decedents.
              (c) We will probate that part of the lands and assets owned by a deceased member of the Five Civilized Tribes or Osage Nation who owned a trust interest in land or a restricted interest in land derived from an individual Indian who was a member of a Tribe other than the Five Civilized Tribes or Osage Nation.
              [76 FR 7505, Feb. 10, 2011]

              § 15.11
              What are the basic steps of the probate process?
              The basic steps of the probate process are:
              (a) We learn about a person's death (see subpart B for details);
              (b) We prepare a probate file that includes documents sent to the agency (see subpart C for details);
              (c) We refer the completed probate file to OHA for assignment to a judge or ADM (see subpart D for details); and
              (d) The judge or ADM decides how to distribute any trust or restricted land and/or trust personalty, and we make the distribution (see subpart D for details).

              § 15.12
              What happens if assets in a trust estate may be diminished or destroyed while the probate is pending?
              (a) This section applies if an interested party or BIA:
              (1) Learns of the death of a person owning trust or restricted property; and
              (2) Believes that an emergency exists and the assets in the estate may be significantly diminished or destroyed before the final decision and order of a judge in a probate case.
              (b) An interested party, the Superintendent, or other authorized representative of BIA has standing to request relief.
              (c) The interested party or BIA representative may request:
              (1) That OHA immediately assign a judge or ADM to the probate case;
              (2) That BIA transfer a probate file to OHA containing sufficient information on potential interested parties and documentation concerning the alleged emergency for a judge to consider emergency relief in order to preserve estate assets; and
              (3) That OHA hold an expedited hearing or consider ex parte relief to prevent impending or further loss or destruction of trust assets.
              [73 FR 67278, Nov. 13, 2008, as amended at 76 FR 7505, Feb. 10, 2011]

            Subpart B—Starting the Probate Process

              § 15.101
              When should I notify the agency of the death of a person owning trust or restricted property?
              There is no deadline for notifying us of a death.
              (a) Notify us as provided in § 15.103 to assure timely distribution of the estate.

              (b) If we find out about the death of a person owning trust or restricted property we may initiate the process to collect the necessary documentation.

              § 15.102
              Who may notify the agency of a death?
              Anyone may notify us of a death.

              § 15.103
              How do I begin the probate process?
              As soon as possible, contact any of the following offices to inform us of the decedent's death:
              (a) The agency or BIA regional office nearest to where the decedent was enrolled;
              (b) Any agency or BIA regional office; or
              (c) The Trust Beneficiary Call Center in OST.

              § 15.104
              Does the agency need a death certificate to prepare a probate file?
              (a) Yes. You must provide us with a certified copy of the death certificate if a death certificate exists. If necessary, we will make a copy from your certified copy for our use and return your copy.
              (b) If a death certificate does not exist, you must provide an affidavit containing as much information as you have concerning the deceased, such as:
              (1) The State, city, reservation, location, date, and cause of death;
              (2) The last known address of the deceased;
              (3) Names and addresses of others who may have information about the deceased; and
              (4) Any other information available concerning the deceased, such as newspaper articles, an obituary, death notices, or a church or court record.

              § 15.105
              What other documents does the agency need to prepare a probate file?
              In addition to the certified copy of a death certificate or other reliable evidence of death listed in § 15.104, we need the following information and documents:
              (a) Originals or copies of all wills, codicils, and revocations, or other evidence that a will may exist;
              (b) The Social Security number of the decedent;
              (c) The place of enrollment and the tribal enrollment or census number of the decedent and potential heirs or devisees;
              (d) Current names and addresses of the decedent's potential heirs and devisees;
              (e) Any sworn statements regarding the decedent's family, including any statements of paternity or maternity;
              (f) Any statements renouncing an interest in the estate including identification of the person or entity in whose favor the interest is renounced, if any;
              (g) A list of claims by known creditors of the decedent and their addresses, including copies of any court judgments; and
              (h) Documents from the appropriate authorities, certified if possible, concerning the public record of the decedent, including but not limited to, any:
              (1) Marriage licenses and certificates of the decedent;
              (2) Divorce decrees of the decedent;
              (3) Adoption and guardianship records concerning the decedent or the decedent's potential heirs or devisees;
              (4) Use of other names by the decedent, including copies of name changes by court order; and
              (5) Orders requiring payment of child support or spousal support.

              § 15.106
              May a probate case be initiated when an owner of an interest has been absent?
              (a) A probate case may be initiated when either:
              (1) Information is provided to us that an owner of an interest in trust or restricted land or trust personalty has been absent without explanation for a period of at least 6 years; or
              (2) We become aware of other facts or circumstances from which an inference may be drawn that the person has died.
              (b) When we receive information as described in § 15.106(a), we may begin an investigation into the circumstances, and may attempt to locate the person. We may:
              (1) Search available electronic databases;
              (2) Inquire into other published information sources such as telephone directories and other available directories;
              (3) Examine BIA land title and lease records;

              (4) Examine the IIM account ledger for disbursements from the account; and
              (5) Engage the services of an independent firm to conduct a search for the owner.
              (c) When we have completed our investigation, if we are unable to locate the person, we may initiate a probate case and prepare a file that may include all the documentation developed in the search.
              (d) We may file a claim in the probate case to recover the reasonable costs expended to contract with an independent firm to conduct the search.

              § 15.107
              Who prepares a probate file?
              The agency that serves the tribe where the decedent was an enrolled member will prepare the probate file in consultation with the potential heirs or devisees who can be located, and with other people who have information about the decedent or the estate.

              § 15.108
              If the decedent was not an enrolled member of a tribe or was a member of more than one tribe, who prepares the probate file?
              Unless otherwise provided by Federal law, the agency that has jurisdiction over the tribe with the strongest association with the decedent will serve as the home agency and will prepare the probate file if the decedent owned interests in trust or restricted land or trust personalty and either:
              (a) Was not an enrolled member of a tribe; or
              (b) Was a member of more than one tribe.

            Subpart C—Preparing the Probate File

              § 15.201
              What will the agency do with the documents that I provide?
              After we receive notice of the death of a person owning trust or restricted land or trust personalty, we will examine the documents provided under §§ 15.104 and 15.105, and other documents and information provided to us to prepare a complete probate file. We may consult with you and other individuals or entities to obtain additional information to complete the probate file. Then we will transfer the probate file to OHA.

              § 15.202
              What items must the agency include in the probate file?
              We will include the items listed in this section in the probate file.
              (a) The evidence of death of the decedent as provided under § 15.104.
              (b) A completed “Data for Heirship Findings and Family History Form” or successor form, certified by BIA, with the enrollment or other identifying number shown for each potential heir or devisee.
              (c) Information provided by potential heirs, devisees, or the tribes on:
              (1) Whether the heirs and devisees meet the definition of “Indian” for probate purposes, including enrollment or eligibility for enrollment in a tribe; or
              (2) Whether the potential heirs or devisees are within two degrees of consanguinity of an “Indian.”
              (d) If an individual qualifies as an Indian only because of ownership of a trust or restricted interest in land, the date on which the individual became the owner of the trust or restricted interest.
              (e) A certified inventory of trust or restricted land, including:
              (1) Accurate and adequate descriptions of all land; and
              (2) Identification of any interests that represent less than 5 percent of the undivided interests in a parcel.
              (f) A statement showing the balance and the source of funds in the decedent's IIM account on the date of death.
              (g) A statement showing all receipts and sources of income to and disbursements, if any, from the decedent's IIM account after the date of death.
              (h) Originals or copies of all wills, codicils, and revocations that have been provided to us.
              (i) A copy of any statement or document concerning any wills, codicils, or revocations the BIA returned to the testator.
              (j) Any statement renouncing an interest in the estate that has been submitted to us, and the information necessary to identify any person receiving a renounced interest.

              (k) Claims of creditors that have been submitted to us under § 15.302 through 15.305, including documentation required by § 15.305.
              (l) Documentation of any payments made on requests filed under the provisions of § 15.301.
              (m) All the documents acquired under § 15.105.
              (n) The record of each tribal or individual request to purchase a trust or restricted land interest at probate.
              (o) The record of any individual request for a consolidation agreement, including a description, such as an Individual/Tribal Interest Report, of any lands not part of the decedent's estate that are proposed for inclusion in the consolidation agreement.
              [73 FR 67278, Nov. 13, 2008, as amended at 76 FR 7505, Feb. 10, 2011]

              § 15.203
              What information must Tribes provide BIA to complete the probate file?
              Tribes must provide any information that we require or request to complete the probate file. This information may include enrollment and family history data or property title documents that pertain to any pending probate matter, and a copy of Tribal probate orders where they exist.
              [76 FR 7505, Feb. 10, 2011]

              § 15.204
              When is a probate file complete?
              A probate file is complete for transfer to OHA when a BIA approving official includes a certification that:
              (a) States that the probate file includes all information listed in § 15.202 that is available; and
              (b) Lists all sources of information BIA queried in an attempt to locate information listed in § 15.202 that is not available.

            Subpart D—Obtaining Emergency Assistance and Filing Claims

              § 15.301
              May I receive funds from the decedent's IIM account for funeral services?
              (a) You may request an amount of no more than $1,000 from the decedent's IIM account if:
              (1) You are responsible for making the funeral arrangements on behalf of the family of a decedent who had an IIM account;
              (2) You have an immediate need to pay for funeral arrangements before burial; and
              (3) The decedent's IIM account contains more than $2,500 on the date of death.
              (b) You must apply for funds under paragraph (a) of this section and submit to us 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 of no more than $1,000 that are necessary for the burial services, taking into consideration:
              (1) The total amount in the IIM account;
              (2) The availability of non-trust funds; and
              (3) Any other relevant factors.
              (d) We will make payments directly to the providers of the services.

              § 15.302
              May I file a claim against an estate?
              If a decedent owed you money, you may make a claim against the estate of the decedent.

              § 15.303
              Where may I file my claim against an estate?
              (a) You may submit your claim to us before we transfer the probate file to OHA or you may file your claim with OHA after the probate file has been transferred if you comply with 43 CFR 30.140 through 30.148.
              (b) If we receive your claim after the probate file has been transmitted to OHA but before the order is issued, we will promptly transmit your claim to OHA.

              § 15.304
              When must I file my claim?
              You must file your claim before the conclusion of the first hearing by OHA or, for cases designated as summary probate proceedings, as allowed under 43 CFR 30.140. Claims not timely filed will be barred.

              § 15.305
              What must I include with my claim?

              (a) You must include an itemized statement of the claim, including copies of any supporting documents such as signed notes, account records, billing records, and journal entries. The itemized statement must also include:
              (1) The date and amount of the original debt;
              (2) The dates, amounts, and identity of the payor for any payments made;
              (3) The dates, amounts, product or service, and identity of any person making charges on the account;
              (4) The balance remaining on the debt on the date of the decedent's death; and
              (5) Any evidence that the decedent disputed the amount of the claim.
              (b) You must submit an affidavit that verifies the balance due and states whether:
              (1) Parties other than the decedent are responsible for any portion of the debt alleged;
              (2) Any known or claimed offsets to the alleged debt exist;
              (3) The creditor or anyone on behalf of the creditor has filed a claim or sought reimbursement against the decedent's non-trust or non-restricted property in any other judicial or quasi-judicial proceeding, and the status of such action; and
              (4) The creditor or anyone on behalf of the creditor has filed a claim or sought reimbursement against the decedent's trust or restricted property in any other judicial or quasi-judicial proceeding, and the status of such action.
              (c) A secured creditor must first exhaust the security before a claim against trust personalty for any deficiency will be allowed. You must submit a verified or certified copy of any judgment or other documents that establish the amount of the deficiency after exhaustion of the security.

            Subpart E—Probate Processing and Distributions

              § 15.401
              What happens after BIA prepares the probate file?
              Within 30 days after we assemble all the documents required by §§ 15.202 and 15.204, we will:
              (a) Refer the case and send the probate file to OHA for adjudication in accordance with 43 CFR part 30; and
              (b) Forward a list of fractional interests that represent less than 5 percent of the entire undivided ownership of each parcel of land in the decedent's estate to the tribes with jurisdiction over those interests.

              § 15.402
              What happens after the probate file is referred to OHA?
              When OHA receives the probate file from BIA, it will assign the case to a judge or ADM. The judge or ADM will conduct the probate proceeding and issue a written decision or order, in accordance with 43 CFR part 30.

              § 15.403
              What happens after the probate order is issued?
              (a) If the probate decision or order is issued by an ADM, you have 30 days from the decision mailing date to file a written request for a de novo review.
              (b) If the probate decision or order is issued by a judge, you have 30 days from the decision mailing date to file a written request for rehearing. After a judge's decision on rehearing, you have 30 days from the mailing date of the decision to file an appeal, in accordance with 43 CFR parts 4 and 30.
              (c) When any interested party files a timely request for de novo review, a request for rehearing, or an appeal, we will not pay claims, transfer title to land, or distribute trust personalty until the request or appeal is resolved.
              (d) If no interested party files a request or appeal within the 30-day deadlines in paragraphs (a) and (b) of this section, we will wait at least 15 additional days before paying claims, transferring title to land, and distributing trust personalty. At that time:
              (1) The LTRO will change the land title records for the trust and restricted land in accordance with the final decision or order; and
              (2) We will pay claims and distribute funds from the IIM account in accordance with the final decision or order.

            Subpart F—Information and Records

              § 15.501
              How may I find out the status of a probate?
              You may get information about the status of an Indian probate by contacting any BIA agency or regional office, an OST fiduciary trust officer, OHA, or the Trust Beneficiary Call Center in OST.

              § 15.502
              Who owns the records associated with this part?
              (a) The United States owns the records associated with this part if:
              (1) They are evidence of the organization, functions, policies, decisions, procedures, operations, or other activities undertaken in the performance of a federal trust function under this part; and
              (2) They are either:
              (i) Made by or on behalf of the United States; or

              (ii) 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 under Pub. L. 93-638, as amended, and as codified at 25 U.S.C. 450 et seq.

              (b) The tribe owns the records associated with this part if they:
              (1) Are not covered by paragraph (a) of this section; and
              (2) Are made or received by a tribe or tribal organization in the conduct of business with the Department of the Interior under this part.

              § 15.503
              How must records associated with this part be preserved?
              (a) Any organization that has records identified in § 15.502(a), including tribes and tribal organizations, 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; and
              (b) A tribe or tribal organization must preserve the records identified in § 15.502(b) for the period authorized by the Archivist of the United States for similar Department of the Interior records under 44 U.S.C. chapter 33. If a tribe or tribal organization does not do so, it may be unable to adequately document essential transactions or furnish information necessary to protect its legal and financial rights or those of persons affected by its activities.

              § 15.504
              Who may inspect records and records management practices?
              (a) You may inspect the probate file at the relevant agency before the file is transferred to OHA. Access to records in the probate file is governed by 25 U.S.C. 2216(e), the Privacy Act, and the Freedom of Information Act.
              (b) The Secretary and the Archivist of the United States may inspect records and records management practices and safeguards required under the Federal Records Act.

              § 15.505
              How does the Paperwork Reduction Act affect this part?

              The collections of information contained in this part have been approved by the Office of Management and Budget under 44 U.S.C. 3501 et seq. and assigned OMB Control Number 1076-0169. Response is required to obtain a benefit. A Federal agency may not conduct or sponsor, and you are not required to respond to a collection of information unless the form or regulation requesting the information has a currently valid OMB Control Number.

          Pt. 16
          PART 16—ESTATES OF INDIANS OF THE FIVE CIVILIZED TRIBES

            Sec.
            16.1
            Definitions.
            16.2
            Scope of regulations.
            16.3
            Legal representation in State courts.
            16.4
            Exchange of information within the Department.
            16.5
            Acceptance and acknowledgement of service of process.
            16.6
            Authority of attorneys in State court litigation.
            16.7
            Performance of Federal functions by successor State courts.
            16.8
            Summary distribution of small liquid estates.
            16.9
            Escheat of estates of decedents.

            Authority:
            5 U.S.C. 301 (Interprets or applies Act of Apr. 26, 1906, ch. 1876, 34 Stat. 137, see 25 U.S.C. 355nt (1970); Act of May 27, 1908, ch. 199, 35 Stat. 312, see 25 U.S.C. 355nt (1970); Act of June 14, 1918, ch. 101, 40 Stat. 606, 25 U.S.C. 355, 375 (1970); Act of Apr. 12, 1926, ch. 115, 44 Stat. 239, see 25 U.S.C. 355nt (1970); Act of June 26, 1936, ch. 831, 49 Stat. 1967, 25 U.S.C. 501-509 (1970); Act of Aug. 4, 1947, ch. 458, 61 Stat. 731, 25 U.S.C. 502 (1970) and see 25 U.S.C. 355nt (1970); Act of Aug. 12, 1953, ch. 409, 67 Stat. 558, 25 U.S.C. 375c (1970) and see 25 U.S.C. 355nt (1970); Act of Aug. 11, 1955, ch. 786, 69 Stat. 666, see 25 U.S.C. 355nt (1970); Act of Aug. 29, 1967, Pub. L. 90-76, 81 Stat. 177, 25 U.S.C. 786-788 (1970); and Act of May 7, 1970, Pub. L. 91-240, 84 Stat. 203, 25 U.S.C. 375d (1970)).

            Source:
            37 FR 7082, Apr. 8, 1972, unless otherwise noted.

            § 16.1
            Definitions.
            (a) The term Secretary means the Secretary of the Interior and his authorized representatives.
            (b) The term Bureau means the Bureau of Indian Affairs, acting through the Commissioner of Indian Affairs and his authorized representatives, including field officials who are responsible for matters affecting properties in which a restricted interest is owned by an Indian of the Five Civilized Tribes.
            (c) The term Field Solicitor means the Regional Solicitor, Southwest Region, Page Belcher Federal Building, P.O. Box 3156, Tulsa, Oklahoma 74101.
            (d) The term Indian of the Five Civilized Tribes means an individual who is either an enrolled member of the Cherokee, Chickasaw, Choctaw, Creek, or Seminole Tribes of Oklahoma, or a descendant of an enrolled member thereof.
            (e) The term restricted interest means an interest owned in real or personal property subject to restraints upon alienation imposed either by Federal statute or by administrative action authorized by Federal statute. Although this term includes property subject to restraints which may be removed by administrative action, its use in this part refers primarily to property subject to restraints which State courts have jurisdiction to remove in proceedings such as those specified in § 16.2.
            [37 FR 7082, Apr. 8, 1972, as amended at 50 FR 12529, Mar. 29, 1985]

            § 16.2
            Scope of regulations.
            The regulations in this part set forth procedures for discharging the responsibilities of the Secretary in connection with the performance by State courts, as authorized by Federal statutes, of certain functions which affect properties in which a restricted interest is owned by an Indian of the Five Civilized Tribes. These State court functions pertain to such proceedings as guardianship, heirship determination, will probate, estate administration, conveyance approval, partition of real property, confirmation of title to real property, and appeal from action removing or failing to remove restrictions against alienation. In addition, the regulations in this part set forth procedures for discharging certain other responsibilities of the Secretary not necessarily involving State court functions, such as escheat of estates of deceased Indians of the Five Civilized Tribes.

            § 16.3
            Legal representation in State courts.
            The statutory duties of the Secretary to furnish legal advice to any Indian of the Five Civilized Tribes, and to represent such Indian in State courts, in matters affecting a restricted interest owned by such Indian, shall be performed by attorneys on the staff of the Solicitor, under the supervision of the Field Solicitor. Such advice and representation shall be undertaken to the extent that the Field Solicitor in his discretion shall consider necessary to discharge said duties, with due regard to the complexity of the legal action contemplated, the availability of staff attorneys for such purposes, the value and extent of the restricted interests involved, possible conflicts between Indians claiming to be owners of such interests, the preference of such owners concerning legal representation, the financial resources available to such owners, the extent to which such owners require similar legal services in connection with their unrestricted properties, and any other factor appropriate for consideration.

            § 16.4
            Exchange of information within the Department.

            To the extent that information may be useful in discharging the duties covered by the regulations in this part, the Bureau shall furnish to the Field Solicitor, either on a current basis or at periodic intervals, processes and notices received concerning court cases and information, as current and complete as may reasonably be obtainable, concerning the estate and status of an Indian of the Five Civilized Tribes for whom legal assistance should be rendered pursuant to the regulations in this part. Similarly, to the extent that such information may be useful for Bureau action or records, the Field Solicitor shall advise the Bureau of court proceedings, information received, and action taken in furnishing legal services pursuant to the regulations in this part.

            § 16.5
            Acceptance and acknowledgement of service of process.
            Service by the Field Solicitor or any other person of any process or notice, pursuant to any Federal statute which by its express terms is applicable to Indians of the Five Civilized Tribes, may be accepted and acknowledged by the Field Solicitor, or by any attorney authorized to perform the duties specified in § 16.3, on behalf of the Secretary and the Bureau, notwithstanding any specific designation in such statute of the official to be served (such as the Secretary, superintendent for the Five Civilized Tribes, Probate Attorney, etc.).

            § 16.6
            Authority of attorneys in State court litigation.
            Attorneys authorized to perform the duties specified in § 16.3 appearing in State court litigation in their official capacities are authorized to take such action as the Secretary could take if he were personally appearing in his official capacity as counsel therein, including but not limited to the filing or decision against filing of initial, responsive, or supplemental pleadings and appeals from adverse judgments, the exercise or decision against exercise of a preferential right to purchase property subject to sale, the removal or decision against removal of actions to Federal courts, and the waiver or decision against waiver of the failure to make timely service of process or notice.

            § 16.7
            Performance of Federal functions by successor State courts.
            All authority to perform functions relating to Indians of the Five Civilized Tribes which by express provisions of Federal statute had been conferred upon probate or county courts of Oklahoma before such county courts were abolished on January 12, 1969, has since that date been vested in the successor district courts of that State, and all rights of litigants continue undiminished in the successor forum, including the right to appeal from adverse decisions rendered therein to the successor appellate court.
            (Interprets or applies Okla. Op. Atty. Gen. No. 68-381 (Dec. 20, 1968))

            § 16.8
            Summary distribution of small liquid estates.
            Where information, furnished by the Bureau pursuant to § 16.4 or otherwise obtained, reveals that the estate of a deceased Indian of the Five Civilized Tribes contains no restricted land but consists of a restricted interest in funds not exceeding $500 on deposit to the credit of the decedent, the Field Solicitor shall, in the absence of any final decree determining the heirs or legatees of the decedent, prepare and furnish to the Bureau a finding and order of distribution, based on affidavit or other proof of death and heirship or bequest, setting forth the facts of death and heirship or bequest and the amount payable from the estate to each person determined to be an heir or legatee of the decedent. The Field Solicitor shall mail to each person considered a possible claimant to any portion of the estate, as an heir or legatee or otherwise, a copy of the order with a notice that the order shall become final 30 days after the date of mailing thereof unless within that period the officer by whom the order was signed shall have received a written request for reconsideration of the order. After final action on any order has been taken by the Field Solicitor, the Bureau shall distribute the funds in the estate of the decedent in accordance with such final action, unless a timely appeal therefrom has been filed in accordance with part 2 of this title.

            § 16.9
            Escheat of estates of decedents.

            Where information, furnished by the Bureau pursuant to § 16.4 or otherwise obtained, reveals that the estate of a deceased Indian of the Five Civilized Tribes, who has been dead 5 or more years after having died intestate without heirs, consists of restricted interests in lands or rents or profits therefrom, the Field Solicitor shall, in the absence of any final decree determining that the decedent died without heirs or devisees, prepare and furnish to the Bureau a finding and order of escheat, based on affidavit or other proof of intestate death without heirs, setting forth the restricted interests in lands or rents or profits therefrom which have by escheat vested in the tribe which allotted the lands. The Field Solicitor shall mail to each person considered a possible claimant to any portion of the estate, as an heir or devisee or otherwise, a copy of the order with a notice that the order shall become final 30 days after the date of mailing thereof unless within that period the officer by whom the order was signed shall have received a written request for reconsideration of the order. After final action on any order has been taken by the Field Solicitor, the Bureau shall cause a certified copy thereof to be filed in the land records of each county within which are located any escheated lands described therein and shall cause the tribe to be credited with any funds in said estate which arose from rents or profits from such lands, unless a timely appeal therefrom has been filed in accordance with part 2 of this title.

          Pt. 17
          PART 17—ACTION ON WILLS OF OSAGE INDIANS

            Sec.
            17.1
            Definitions.
            17.2
            Attorneys.
            17.3
            Pleadings, notice and hearings.
            17.4
            Service on interested parties.
            17.5
            Minors represented at hearings.
            17.6
            Examination of witness.
            17.7
            Limiting number of witnesses.
            17.8
            Supplemental hearing.
            17.9
            Briefs.
            17.10
            Record.
            17.11
            Inspection of wills and approval as to form during testator's lifetime.
            17.12
            Approval.
            17.13
            Government employees as beneficiaries.
            17.14
            Appeals.

            Authority:
            5 U.S.C. 301.

            Source:
            22 FR 10530, Dec. 24, 1957, unless otherwise noted.

            § 17.1
            Definitions.
            When used in the regulations in this part the following words or terms shall have the meaning shown below:
            (a) Secretary means the Secretary of the Interior.
            (b) Commissioner means the Commissioner of Indian Affairs.
            (c) Superintendent means the superintendent of the Osage Indian Agency.
            (d) Special attorney means the special attorney for Osage Indians, or other legal officer designated by the Commissioner.

            § 17.2
            Attorneys.
            Interested parties may appear in person or by attorneys at law. Attorneys must file written authority to appear for their clients in the proceedings.

            § 17.3
            Pleadings, notice and hearings.
            (a) The petition for approval of the will of a deceased Osage Indian may be set down for hearing at a date not less than 30 days from the date the petition is filed. Hearings shall be conducted only after notice of the time and place of such hearings shall have been given by mail. The notice shall be mailed not less than 10 days preceding the date of the hearing and shall state that the special attorney will, at the time and place specified therein, take testimony to determine whether the will of the deceased Osage Indian shall be approved or disapproved. The notice shall list the presumptive heirs of the decedent and the beneficiaries under such will, and shall notify the attesting witnesses to be present and testify. It shall state that all persons interested in the estate of the decedent may be present at the hearing. The notice shall further state that the special attorney may, in his discretion, continue the hearing to another time or place to be announced at the original hearing.
            (b) Any interested party desiring to contest approval of the will may, not less than 5 days before the date set for hearing, file written objections in triplicate, showing that a copy thereof was served upon attorneys for the proponent and other attorneys of record in the case. Such contestant shall clearly state the interest he takes under the will and, if a presumptive heir, the interest he would take under the Oklahoma law. The contestant shall further state specifically the ground on which his contest is based.

            § 17.4
            Service on interested parties.

            A copy of the notice of hearing shall be served by mail, at his last known place of residence, on each presumptive heir; each beneficiary under the will offered for consideration; and each attesting witness thereto. Such notice must be mailed not less than 10 days preceding the date set for the hearing.

            § 17.5
            Minors represented at hearings.
            Minor heirs at law, who by the terms of the will are devised a lesser interest in the estate than they would take by descent, of whose interests are challenged, shall, with the approval of the special attorney, be represented at the hearing by guardians ad litem. Such minors 14 years of age or over may indicate in writing their choice of guardians ad litem. If no such choice has been indicated on the date of the hearing, the special attorney shall make the selection and appointment.

            § 17.6
            Examination of witness.
            All testimony taken at the hearing shall be reduced to writing. Any interested party may cross-examine any witness. Attorneys and others will be required to adhere to the rules of evidence of the State of Oklahoma. If, in addition to oral testimony, affidavits or dispositions are introduced, they must be read, and any opposing claimant may require the presence of the affiant, if practicable, either at that or a subsequent hearing, and opportunity shall be given for cross-examination or for having counter interrogatories answered.

            § 17.7
            Limiting number of witnesses.
            When the evidence seems clear and conclusive, the special attorney may, in his discretion, limit the number of witnesses to be examined formally upon any matter.

            § 17.8
            Supplemental hearing.
            When it appears that a supplemental hearing is necessary to secure material evidence, such a hearing may be conducted after notice has been given to those persons on whom notice of the original hearing was served and to such other persons as the testimony taken at the original hearing indicates may have a possible interest in the estate.

            § 17.9
            Briefs.
            When there are two or more parties with conflicting interests, the party upon whom the burden of proof may fall may be allowed a reasonable time, not to exceed 30 days following the conclusion of the hearing, in which to file a brief or other statement of his contentions, showing service on opposing counsel or litigant. The latter shall then be allowed not to exceed 20 days in which to file an answer brief or statement, and his opponent shall have 10 days thereafter to file a reply brief or statement. Upon proper showing the special attorney may grant extensions of time. Each brief or statement shall be filed in duplicate.

            § 17.10
            Record.
            After the hearing or hearings on the will have been terminated the special attorney shall make up the record and transmit it with his recommendation to the superintendent. The record shall contain:
            (a) Copy of notices mailed to the attesting witnesses and the interested parties.
            (b) Proof of mailing of notices.
            (c) The evidence received at the hearing or hearings.
            (d) The original of the will or wills considered at the hearings.
            (e) A copy of all the pleadings.
            The record, except the original will, shall be a part of the permanent files of the Osage Agency.

            § 17.11
            Inspection of wills and approval as to form during testator's lifetime.
            When a will has been executed and filed with the superintendent during the lifetime of the testator, the will shall be considered by the special attorney who may endorse on such will “approved as to form.” A will shall be held in absolute confidence and its contents shall not be divulged prior to the death of the testator.

            § 17.12
            Approval.
            After hearings have been concluded in conformity with this part the superintendent shall approve or disapprove the wills of deceased Osage Indians.

            § 17.13
            Government employees as beneficiaries.

            In considering the will of a deceased Osage Indian the superintendent may disapprove any will which names as a beneficiary thereunder a government employee who is not related to the testator by blood, or otherwise the natural object of the testator's bounty.

            § 17.14
            Appeals.
            (a) Notwithstanding the provisions in part 2 of this chapter concerning appeals generally from administrative actions, any appeal from the action of the superintendent of approving or disapproving a will shall be taken to the Secretary. Upon the superintendent's final action of approval or disapproval of a will, he shall immediately notify by mail all attorneys appearing in the case, together with interested parties who are not represented by attorneys, of his decision and of their right to file an appeal.
            (b) Any party desiring to appeal from the action of the superintendent shall, within 15 days after the date of the mailing of notice of the decision file with the superintendent a notice in writing of his intention to appeal to the Secretary, and shall, within 30 days after the mailing date of such notice by the superintendent, perfect his appeal to the Secretary by service of the appeal upon the superintendent who will transmit the entire record to the Secretary. If no notice of intention to appeal is given within 15 days, the superintendent's decision will be final.
            (c) Upon the filing of notice with the superintendent of intention to appeal or the perfecting of an appeal by service upon the superintendent, at the same time similar notice and service shall be effected by the party taking an appeal upon opposing counsel or litigants, and a statement included in the appeal that this has been done. A party taking an appeal may, within the same 30-day period allowed for perfecting an appeal, file a brief or other written statement of his contentions, showing also service of that brief upon opposing counsel or litigants. Opposing counsel or litigants shall have 30 days from the date of the service of appellant's brief upon them in which to file an answer brief, copies of which also shall be served upon the appellant or opposing counsel and litigants. Except by special permission, no other briefs will be allowed on appeal.
            [26 FR 10930, Nov. 22, 1961]

          Pt. 18
          PART 18—TRIBAL PROBATE CODES

              Subpart A—General Provisions
              Sec.
              18.1
              What is the purpose of this part?
              18.2
              What definitions do I need to know?

              Subpart B—Approval of Tribal Probate Codes
              18.101
              May a tribe create and adopt its own tribal probate code?
              18.102
              When must a tribe submit its tribal probate code to the Department for approval?
              18.103
              Which provisions within a tribal probate code require the Department's approval?
              18.104
              May a tribe include provisions in its tribal probate code regarding the descent and distribution of trust personalty?
              18.105
              How does a tribe request approval for a tribal probate code?
              18.106
              What will the Department consider in the approval process?
              18.107
              When will the Department approve or disapprove a tribal probate code?
              18.108
              What happens if the Department approves the tribal probate code?
              18.109
              How will a tribe be notified of the disapproval of a tribal probate code?
              18.110
              When will a tribal probate code become effective?
              18.111
              What will happen if a tribe repeals its probate code?
              18.112
              May a tribe appeal the approval or disapproval of a probate code?

              Subpart C—Approval of Tribal Probate Code Amendments
              18.201
              May a tribe amend a tribal probate code?
              18.202
              How does a tribe request approval for a tribal probate code amendment?
              18.203
              Which probate code amendments require approval?
              18.204
              When will the Department approve an amendment?
              18.205
              What happens if the Department approves the amendment?
              18.206
              How will the tribe be notified of disapproval of the amendment?
              18.207
              When do amendments to tribal probate codes become effective?
              18.208
              May a tribe appeal an approval or disapproval of a probate code amendment?

              Subpart D—Approval of Single Heir Rule
              18.301
              May a tribe create and adopt a single heir rule without adopting a tribal probate code?
              18.302
              How does the tribe request approval for the single heir rule?
              18.303
              When will the Department approve or disapprove a single heir rule?
              18.304
              What happens if the Department approves a single heir rule?
              18.305
              How will a tribe be notified of the disapproval of a single heir rule?
              18.306
              When does the single heir rule become effective?
              18.307
              May a tribe appeal approval or disapproval of a single heir rule?

              Subpart E—Information and Records
              18.401
              How does the Paperwork Reduction Act affect this part?

            Authority:
            5 U.S.C. 301; 25 U.S.C. 2, 9, 372-74, 410, 2201 et seq.; 44 U.S.C. 3101 et seq.; 25 CFR part 15; 43 CFR part 4.

            Source:
            73 FR 67283, Nov. 13, 2008, unless otherwise noted.

            Subpart A—General Provisions

              § 18.1
              What is the purpose of this part?
              This part establishes the Department's policies and procedures for reviewing and approving or disapproving tribal probate codes, amendments, and single heir rules that contain provisions regarding the descent and distribution of trust and restricted lands.

              § 18.2
              What definitions do I need to know?

                Act means the Indian Land Consolidation Act and its amendments, including the American Indian Probate Reform Act of 2004 (AIPRA), Public Law 108-374, as codified at 25 U.S.C. 2201 et seq.

                Day means a calendar day.

                Decedent means a person who is deceased.

                Department means the Department of the Interior.

                Devise means a gift of property by will. Also, to give property by will.

                Devisee means a person or entity that receives property under a will.

                Indian means, for the purposes of the Act:
              (1) Any person who is a member of a federally recognized Indian tribe, is eligible to become a member of any federally recognized Indian tribe, or is an owner (as of October 27, 2004) of a trust or restricted interest in land;
              (2) Any person meeting the definition of Indian under 25 U.S.C. 479; or
              (3) With respect to the inheritance and ownership of trust or restricted land in the State of California under 25 U.S.C. 2206, any person described in paragraph (1) or (2) of this definition or any person who owns a trust or restricted interest in a parcel of such land in that State.

                Intestate means that the decedent died without a will.

                OHA means the Office of Hearings and Appeals within the Department of the Interior.

                Restricted lands means real property, the title to which is held by an Indian but which cannot be alienated or encumbered without the Secretary's consent. For the purpose of probate proceedings, restricted lands are treated as if they were trust lands. Except as the law may provide otherwise, the term “restricted lands” as used in this part does not include the restricted lands of the Five Civilized Tribes of Oklahoma or the Osage Nation.

                Testator means a person who has executed a will.

                Trust lands means real property, or an interest therein, the title to which is held in trust by the United States for the benefit of an individual Indian or tribe.

                Trust personalty means all tangible personal property, funds, and securities of any kind that are held in trust in an IIM account or otherwise supervised by the Secretary.

                We or us means the Secretary or an authorized representative of the Secretary.

            Subpart B—Approval of Tribal Probate Codes

              § 18.101
              May a tribe create and adopt its own tribal probate code?
              Yes. A tribe may create and adopt a tribal probate code.

              § 18.102
              When must a tribe submit its tribal probate code to the Department for approval?

              The tribe must submit its probate code to the Department for approval if the tribal probate code contains provisions regarding the descent and distribution of trust and restricted lands.

              § 18.103
              Which provisions within a tribal probate code require the Department's approval?
              Only those tribal probate code provisions regarding the descent and distribution of trust and restricted lands require the Department's approval.

              § 18.104
              May a tribe include provisions in its tribal probate code regarding the distribution and descent of trust personalty?
              No. All trust personalty will be distributed in accordance with the American Indian Probate Reform Act of 2004, as amended.

              § 18.105
              How does a tribe request approval for a tribal probate code?
              The tribe must submit the tribal probate code and a duly executed tribal resolution adopting the code to the Assistant Secretary—Indian Affairs, Attn: Tribal Probate Code, 1849 C Street, NW., Washington, DC 20240, for review and approval or disapproval.

              § 18.106
              What will the Department consider in the approval process?
              A tribal probate code must meet the requirements of this section in order to receive our approval under this part.
              (a) The code must be consistent with Federal law.
              (b) The code must promote the policies of the Indian Land Consolidation Act (ILCA) Amendments of 2000, which are to:
              (1) Prevent further fractionation;
              (2) Consolidate fractional interests into useable parcels;
              (3) Consolidate fractional interests to enhance tribal sovereignty;
              (4) Promote tribal self-sufficiency and self-determination; and
              (5) Reverse the effects of the allotment policy on Indian tribes.
              (c) Unless the conditions in paragraph (d) of this section are met, the code must not prohibit the devise of an interest to:
              (1) An Indian lineal descendant of the original allottee; or
              (2) An Indian who is not a member of the Indian tribe with jurisdiction over the interest in the land.
              (d) If the tribal probate code prohibits the devise of an interest to the devisees in paragraph (c)(1) or (c)(2) of this section, then the code must:
              (1) Allow those devisees to renounce their interests in favor of eligible devisees as defined by the tribal probate code;
              (2) Allow a devisee who is the spouse or lineal descendant of the testator to reserve a life estate without regard to waste; and
              (3) Require the payment of fair market value as determined by the Department on the date of the decedent's death.

              § 18.107
              When will the Department approve or disapprove a tribal probate code?
              (a) We have 180 days from receipt by the Assistant Secretary—Indian Affairs of a submitted tribal probate code and duly executed tribal resolution adopting the tribal probate code to approve or disapprove a tribal probate code.
              (b) If we do not meet the deadline in paragraph (a) of this section, the tribal probate code will be deemed approved, but only to the extent that it:
              (1) Is consistent with Federal law; and
              (2) Promotes the policies of the ILCA Amendments of 2000 as listed in § 18.106(b).

              § 18.108
              What happens if the Department approves the tribal probate code?
              Our approval applies only to those sections of the tribal probate code that govern the descent and distribution of trust or restricted land. We will notify the tribe of the approval and forward a copy of the tribal probate code to OHA.

              § 18.109
              How will a tribe be notified of the disapproval of a tribal probate code?
              If we disapprove a tribal probate code, we must provide the tribe with a written notification of the disapproval that includes an explanation of the reasons for the disapproval.

              § 18.110
              When will a tribal probate code become effective?

              (a) A tribal probate code may not become effective sooner than 180 days after the date of approval by the Department.
              (b) If a tribal probate code is deemed approved through inaction by the Department, then the code will become effective 180 days after it is deemed approved.
              (c) The tribal probate code will apply only to the estate of a decedent who dies on or after the effective date of the tribal probate code.

              § 18.111
              What will happen if a tribe repeals its probate code?
              If a tribe repeals its tribal probate code:
              (a) The repeal will not become effective sooner than 180 days from the date we receive notification from the tribe of its decision to repeal the code; and
              (b) We will forward a copy of the repeal to OHA.

              § 18.112
              May a tribe appeal the approval or disapproval of a probate code?
              No. There is no right of appeal within the Department from a decision to approve or disapprove a tribal probate code.

            Subpart C—Approval of Tribal Probate Code Amendments

              § 18.201
              May a tribe amend a tribal probate code?
              Yes. A tribe may amend a tribal probate code.

              § 18.202
              How does a tribe request approval for a tribal probate code amendment?
              To amend a tribal probate code, the tribe must follow the same procedures as for submitting a tribal probate code to the Department for approval.

              § 18.203
              Which probate code amendments require approval?
              Only those tribal probate code amendments regarding the descent and distribution of trust and restricted lands require the Department's approval.

              § 18.204
              When will the Department approve an amendment?
              (a) We have 60 days from receipt by the Assistant Secretary of a submitted amendment to approve or disapprove the amendment.
              (b) If we do not meet the deadline in paragraphs (a) of this section, the amendment will be deemed approved, but only to the extent that it:
              (1) Is consistent with Federal law; and
              (2) Promotes the policies of the ILCA Amendments of 2000 as listed in § 18.106(b).

              § 18.205
              What happens if the Department approves the amendment?
              Our approval applies only to those sections of the amendment that contain provisions regarding the descent and distribution of trust or restricted land. We will notify the tribe of the approval and forward a copy of the amendment to OHA.

              § 18.206
              How will a tribe be notified of the disapproval of an amendment?
              If we disapprove an amendment, we must provide the tribe with a written notification of the disapproval that includes an explanation of the reasons for the disapproval.

              § 18.207
              When do amendments to a tribal probate code become effective?
              (a) An amendment may not become effective sooner than 180 days after the date of approval by the Department.
              (b) If an amendment is deemed approved through inaction by the Department, then the amendment will become effective 180 days after it is deemed approved.
              (c) The amendment will apply only to the estate of a decedent who dies on or after the effective date of the amendment.

              § 18.208
              May a tribe appeal an approval or disapproval of a probate code amendment?
              No. There is no right of appeal within the Department from a decision to approve or disapprove a tribal probate code amendment.

            Subpart D—Approval of Single Heir Rule

              § 18.301
              May a tribe create and adopt a single heir rule without adopting a tribal probate code?
              Yes. A tribe may create and adopt a single heir rule for intestate succession. The single heir rule may specify a single recipient other than the one specified in 25 U.S.C. 2206(a)(2)(D).

              § 18.302
              How does the tribe request approval for the single heir rule?
              The tribe must follow the same procedures as for submitting a tribal probate code to the Department for approval.

              § 18.303
              When will the Department approve or disapprove a single heir rule?
              We have 90 days from receipt by the Assistant Secretary of a single heir rule submitted separate from a tribal probate code to approve or disapprove a single heir rule.

              § 18.304
              What happens if the Department approves the single heir rule?
              If we approve the single heir rule, we will notify the tribe of the approval and forward a copy of the single heir rule to OHA.

              § 18.305
              How will a tribe be notified of the disapproval of a single heir rule?
              If we disapprove a single heir rule, we must provide the tribe with a written notification of the disapproval that includes an explanation of the reasons for the disapproval.

              § 18.306
              When does the single heir rule become effective?
              (a) A single heir rule may not become effective sooner than 180 days after the date of approval by the Department.
              (b) If a single heir rule is deemed approved through inaction by the Department, then the single heir rule will become effective 180 days after it is deemed approved.
              (c) The single heir rule will apply only to the estate of a decedent who dies on or after the effective date of the single heir rule.

              § 18.307
              May a tribe appeal approval or disapproval of a single heir rule?
              No. There is no right of appeal within the Department from a decision to approve or disapprove a single heir rule.

            Subpart E—Information and Records

              § 18.401
              How does the Paperwork Reduction Act affect this part?

              The collection of information contained in this part has been approved by the Office of Management and Budget under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., and assigned OMB Control Number 1076-0168. Response is required to obtain a benefit. A Federal agency may not conduct or sponsor, and members of the public are not required to respond to, a collection of information unless the form or regulation requesting the information displays a currently valid OMB Control Number.

        SUBCHAPTER D—HUMAN SERVICES

          Pt. 20
          PART 20—FINANCIAL ASSISTANCE AND SOCIAL SERVICES PROGRAMS

              Subpart A—Definitions, Purpose and Policy
              Sec.
              20.100
              What definitions clarify the meaning of the provisions of this part?
              20.101
              What is the purpose of this part?
              20.102
              What is the Bureau's policy in providing financial assistance and social services under this part?
              20.103
              Have the information collection requirements in this part been approved by the Office of Management and Budget?

              Subpart B—Welfare Reform
              20.200
              What contact will the Bureau maintain with State, tribal, county, local, and other Federal agency programs?
              20.201
              How does the Bureau designate a service area and what information is required?
              20.202
              What is a tribal redesign plan?
              20.203
              Can a tribe incorporate assistance from other sources into a tribal redesign plan?
              20.204
              Must all tribes submit a tribal redesign plan?
              20.205
              Can tribes change eligibility criteria or levels of payments for General Assistance?
              20.206
              Must a tribe get approval for a tribal redesign plan?
              20.207
              Can a tribe use savings from a tribal redesign plan to meet other priorities of the tribe?
              20.208
              What if the tribal redesign plan leads to increased costs?
              20.209
              Can a tribe operating under a tribal redesign plan go back to operating under this part?
              20.210
              Can eligibility criteria or payments for Burial Assistance, Child Assistance, and Disaster Assistance and Emergency Assistance change?

              Subpart C—Direct Assistance

                Eligibility for Direct Assistance
                20.300
                Who qualifies for Direct Assistance under this subpart?
                20.301
                What is the goal of General Assistance?
                20.302
                Are Indian applicants required to seek assistance through Temporary Assistance for Needy Families?
                20.303
                When is an applicant eligible for General Assistance?
                20.304
                When will the Bureau review eligibility for General Assistance?
                20.305
                What is redetermination?
                20.306
                What is the payment standard for General Assistance?

                Determining Need and Income
                20.307
                What resources does the Bureau consider when determining need?
                20.308
                What does earned income include?
                20.309
                What does unearned income include?
                20.310
                What recurring income must be prorated?
                20.311
                What amounts will the Bureau deduct from earned income?
                20.312
                What amounts will the Bureau deduct from income or other resources?
                20.313
                How will the Bureau compute financial assistance payments?

                Employment Requirements
                20.314
                What is the policy on employment?
                20.315
                Who is not covered by the employment policy?
                20.316
                What must a person covered by the employment policy do?
                20.317
                How will the ineligibility period be implemented?
                20.318
                What case management responsibilities does the social services worker have?
                20.319
                What responsibilities does the general assistance recipient have?

                Tribal Work Experience Program (TWEP)
                20.320
                What is TWEP?
                20.321
                Does TWEP allow an incentive payment?
                20.322
                Who can receive a TWEP incentive payment?
                20.323
                Will the local TWEP be required to have written program procedures?

                Burial Assistance
                20.324
                When can the Bureau provide Burial Assistance?
                20.325
                Who can apply for Burial Assistance?
                20.326
                Does Burial Assistance cover transportation costs?

                Disaster Assistance
                20.327
                When can the Bureau provide Disaster Assistance?
                20.328
                How can a tribe apply for Disaster Assistance?

                Emergency Assistance
                20.329
                When can the Bureau provide Emergency Assistance payments?
                20.330
                What is the payment standard for Emergency Assistance?

                Adult Care Assistance
                20.331
                What is Adult Care Assistance?
                20.332
                Who can receive Adult Care Assistance?
                20.333
                How do I apply for Adult Care Assistance?
                20.334
                What happens after I apply?
                20.335
                What is the payment standard for Adult Care Assistance?

              Subpart D—Services to Children, Elderly, and Families
              20.400
              Who should receive Services to Children, Elderly, and Families?
              20.401
              What is included under Services to Children, Elderly, and Families?
              20.402
              When are protective services provided?
              20.403
              What do protective services include?
              20.404
              What information is contained in a social services assessment?

              Subpart E—Child Assistance
              20.500
              Who is eligible for Child Assistance?

                How Child Assistance Funds Can Be Used
                20.501
                What services can be paid for with Child Assistance funds?
                20.502
                Can Child Assistance funds be used to place Indian children in residential care facilities?
                20.503
                When can Child Assistance funds be used for Indian adoption or guardianship subsidies?
                20.504
                What short-term homemaker services can Child Assistance pay for?
                20.505
                What services are provided jointly with the Child Assistance Program?

                Foster Care
                20.506
                What information is required in the foster care case file?
                20.507
                What requirements must foster care providers meet?
                20.508
                What must the social services agency do when a child is placed in foster care, residential care or guardianship home?
                20.509
                What must the social services worker do when a child is placed in foster care or residential care facility?
                20.510
                How is the court involved in child placements?
                20.511
                Should permanency plans be developed?
                20.512
                Can the Bureau/tribal contractors make Indian adoptive placements?
                20.513
                Should Interstate Compacts be used for the placement of children?
                20.514
                What assistance can the courts request from social services on behalf of children?
                20.515
                What is required for case management?
                20.516
                How are child abuse, neglect or exploitation cases to be handled?

              Subpart F—Administrative Procedures
              20.600
              Who can apply for financial assistance or social services?
              20.601
              How can applications be submitted?
              20.602
              How does the Bureau verify eligibility for social services?
              20.603
              How is an application approved or denied?
              20.604
              How is an applicant or recipient notified that benefits or services are denied or changed?
              20.605
              What happens when an applicant or recipient appeals a decision under this subpart?
              20.606
              How is an incorrect payment adjusted or recovered?
              20.607
              What happens when applicants or recipients knowingly and willfully provide false or fraudulent information?

              Subpart G—Hearings and Appeals
              20.700
              Can an applicant or recipient appeal the decision of a Bureau official?
              20.701
              Does a recipient receive financial assistance while an appeal is pending?
              20.702
              When is an appeal hearing scheduled?
              20.703
              What must the written notice of hearing include?
              20.704
              Who conducts the hearing or appeal of a Bureau decision or action and what is the process?
              20.705
              Can an applicant or recipient appeal a tribal decision?

            Authority:
            25 U.S.C. 13; Pub. L. 93-638; Pub. L. 98-473; Pub. L. 102-477; Pub. L. 104-193; Pub. L. 105-83.

            Source:
            65 FR 63159, Oct. 20, 2000, unless otherwise noted.

            Subpart A—Definitions, Purpose and Policy

              § 20.100
              What definitions clarify the meaning of the provisions of this part?

                Adult means an Indian person age 18 or older.

                Adult care assistance means financial assistance provided on behalf of an Indian adult who is not eligible for any other state, federal, or tribal assistance as documented in the case file and who requires non-medical personal care and supervision due to advanced age, infirmity, physical condition or mental impairment.

                Appeal means a written request for correction of an action or decision of a specific program decision by a Bureau official (§ 20.700) or a tribal official (§ 20.705).

                Applicant means an Indian individual by or on whose behalf an application for financial assistance and/or social services has been made under this part.

                Application means the written or oral process through which a request is made for financial assistance or social services.

                Assistant Secretary means the Assistant Secretary—Indian Affairs.

                Authorized representative means a parent or other caretaker relative, conservator, legal guardian, foster parent, attorney, paralegal acting under the supervision of an attorney, friend or other spokesperson duly authorized and acting on behalf or representing the applicant or recipient.

                Bureau means the Bureau of Indian Affairs of the United States Department of the Interior.

                Bureau Standard of Assistance means payment standards established by the Assistant Secretary for burial, disaster, emergency, TWEP and adoption and guardian subsidy. In accordance with Public Law 104-193, the Bureau standard of assistance for general assistance is the state rate for TANF in the state where the applicant resides. Where the Bureau provides general assistance on a reservation that extends into another state, the Bureau will provide general assistance to eligible Indians based on the standard of assistance where the applicant resides if the applicant is not eligible for state general assistance or TANF. The Bureau standard of assistance for adult care assistance is the state rate for adult care assistance in the state where the applicant resides. The Bureau standard of assistance for foster care is the state rate for foster care in the state where the applicant resides as provided by Title IV of the Social Security Act (49 Stat. 620).

                Burial assistance means a financial assistance payment made on behalf of an indigent Indian who meets the eligibility criteria to provide minimum burial expenses according to Bureau payment standards established by the Assistant Secretary.

                Case means a single type of assistance and/or service provided to an individual or household in response to an identified need which requires intervention by social services.

                Case management means the activity of a social services worker in assessing client and family problem(s), case planning, coordinating and linking services for clients, monitoring service provisions and client progress, advocacy, tracking and evaluating services provided, such as evaluation of child's treatment being concurrent with parent's treatment, and provision of aftercare service. Activities may also include resource development and providing other direct services such as accountability of funds, data collection, reporting requirements, and documenting activities in the case file.

                Case plan means a written plan with time limited goals which is developed and signed by the service recipient and social services worker. The case plan will include documentation of referral and disapproval of eligibility for other services. The plan must incorporate the steps needed to assist individuals and families to resolve social, economic, psychological, interpersonal, and/or other problems, to achieve self-sufficiency and independence. All plans for children in foster care or residential care must include a permanency plan which contains a time specific goal of the return of the child to the natural parents or initiation of a guardianship/adoption.

                Child means an Indian person under the age of 18 except that no person who has been emancipated by marriage will be deemed a child.

                Child assistance means financial assistance provided on behalf of an Indian child, who has special needs as specified in § 20.100. In addition, assistance includes services to a child who requires placement in a foster home or a residential care facility in accordance with standards of payment levels established by the state or county in which the child resides. Further, assistance includes services to a child in need of adoption or guardianship in accordance with payment levels established by the Assistant Secretary.

                Designated representative means an official of the Bureau who is designated by a Superintendent to hold a hearing as prescribed in §§ 20.700 through 20.705 and who has had no prior involvement in the proposed decision under § 20.603 and whose hearing decision under §§ 20.700 through 20.705 will have the same force and effect as if rendered by the Superintendent.

                Disaster means a situation where a tribal community is adversely affected by a natural disaster or other forces which pose a threat to life, safety, or health as specified in §§ 20.327 and 20.328.

                Emergency means a situation where an individual or family's home and personal possessions are either destroyed or damaged through forces beyond their control as specified in § 20.329.

                Employable means an eligible Indian person who is physically and mentally able to obtain employment, and who is not exempt from seeking employment in accordance with the criteria specified in § 20.315.

                Essential needs means shelter, food, clothing and utilities, as included in the standard of assistance in the state where the eligible applicant lives.

                Extended family means persons related by blood, marriage or as defined by tribal law or custom.

                Family assessment means a social services assessment of a family's history and present abilities and resources to provide the necessary care, guidance and supervision for individuals within the family's current living situation who may need social service assistance and/or services.

                Financial Assistance means any of the following forms of assistance not provided by other federal, state, local or tribal sources:
              (1) Adult Care Assistance for adults who require non-medical personal care and supervision;
              (2) Burial Assistance for indigent burials;
              (3) Child Assistance for any child with special needs, in need of placement in a foster home or residential care facility, or in need of adoption or guardianship;
              (4) Disaster Assistance;
              (5) Emergency Assistance for essential needs to prevent hardship caused by burnout, flooding of homes, or other life threatening situations that may cause loss or damage of personal possessions;
              (6) General Assistance for basic essential needs; or
              (7) Tribal Work Experience Program for participants in work experience and training.

                Foster care services means those social services provided to an eligible Indian child that is removed from his or her home due to neglect, abandonment, abuse or other maltreatment and placed in a foster home. Services must also be extended to the affected family members and foster parent(s) with a goal of reuniting and preserving the family.

                General Assistance means financial assistance payments to an eligible Indian for essential needs provided under §§ 20.300 through 20.319.

                Guardianship means long-term, social services and court approved placement of a child.

                Head of household means a person in the household that has primary responsibility and/or obligation for the financial support of others in the household. In the case of a two parent household, one will be considered the head of household for the purpose of making an application for benefits.

                Homemaker services means non-medical services provided by social services, in the absence of other resources, to assist an eligible Indian in maintaining self-sufficiency, and preventing placement into foster care or residential care. Examples of services included in homemaker services are: cleaning an individual's home, preparing meals for an individual, and maintaining or performing basic household functions.

                Household means persons living together who may or may not be related to the “head of household.”

                Indian means:
              (1) Any person who is a member of an Indian tribe; or

              (2) In the Alaska service area only, any person who meets the definition of “Native” as defined under 43 U.S.C. 1602(b): “A citizen of the United States and one-fourth degree or more Alaska Indian (including Tsimshian Indians not enrolled in the Metlakatla Indian Community) Eskimo, or Aleut blood, or combination thereof. The term includes any Native as so defined either or both of whose adoptive parents are not Natives. It also includes, in the absence of proof of a minimum blood quantum, any citizen of the United States who is regarded as an Alaska Native by the Native village or Native group of which he claims to be a member and whose father or mother is (or, if deceased, was) regarded as Native by any village or group. Any decision of the Secretary regarding eligibility for enrollment shall be final.”

                Indian court means Indian tribal court or Court of Indian Offenses.

                Indian tribe means an Indian or Alaska Native tribe, band, nation, pueblo, village, or community which is recognized as eligible for the special programs and services provided by the United States because of their status as Indians.

                Individual Self-sufficiency Plan (ISP) means a plan designed to meet the goal of employment through specific action steps and is incorporated within the case plan for the general assistance recipient. The plan is jointly developed and signed by the recipient and social services worker.

                Near Reservation means those areas or communities designated by the Assistant Secretary that are adjacent or contiguous to reservations where financial assistance and social service programs are provided.

                Need means the deficit after consideration of income and other resources necessary to meet the cost of essential need items and special need items as defined by the Bureau standard of assistance for the state in which the applicant or recipient resides.

                Permanency plan means the documentation in a case plan which provides for permanent living alternatives for the child in foster care, a residential care facility, or in need of adoption or guardianship. Permanency plans are developed and implemented in accordance with tribal, cultural, and tribal/state legal standards when the parent or guardian is unable to resolve the issues that require out-of-home placement of the child.

                Protective services means those services necessary to protect an Indian who is the victim of an alleged and/or substantiated incident of abuse, neglect or exploitation or who is under the supervision of the Bureau in regard to the use and disbursement of funds in his or her Individual Indian Money (IIM) account.

                Public assistance means those programs of financial assistance provided by state, tribal, county, local and federal organizations including programs under Title IV of the Social Security Act (49 Stat. 620), as amended, and Public Law 104-193.

                Recipient is an eligible Indian receiving financial assistance or social services under this part.

                Recurring income means any cash or in-kind payment, earned or unearned, received on a monthly, quarterly, semiannual, or annual basis.

                Regional Director means the Bureau official in charge of a Regional Office.

                Reservation means any federally recognized Indian tribe's reservation, pueblo, or colony, including Alaska Native regions established pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688).

                Residential care services means those rehabilitation services provided to an eligible Indian child that is removed from his or her home due to lack of resources in the home to care for him or her and placed in a residential care facility.

                Resources means income, both earned and unearned, and other liquid assets available to an Indian person or household to meet current living costs, unless otherwise specifically excluded by federal statute. Liquid assets are those properties in the form of cash or other financial instruments which can be converted to cash, such as savings or checking accounts, promissory notes, mortgages and similar properties, and retirements and annuities.

                Secretary means the Secretary of the Interior.

                Service area means a geographic area designated by the Assistant Secretary where financial assistance and social services programs are provided. Such a geographic area designation can include a reservation, near reservation, or other geographic location. “The Assistant Secretary has designated the entire State of Alaska as a service area.”

                Services to children, elderly and families means social services, including protective services provided through the social work skills of casework, group work or community development to assist in solving social problems involving children, elderly and families. These services do not include money payments.

                Special needs means a financial assistance payment made to or on behalf of children under social services supervision for circumstances that warrant financial assistance that is not included in the foster care rates; for example, respite care, homemaker service, day care service, and may include basic needs (special diets) which are not considered as a medical need where other resources are not available.

                Superintendent means the Bureau official in charge of an agency office.

                Supplemental Security Income (SSI) means cash assistance provided under Title XVI of the Social Security Act (49 Stat. 620), as amended.

                Temporary Assistance for Needy Families (TANF) means one of the programs of financial assistance provided under the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA).

                Tribal governing body means the federally recognized governing body of an Indian tribe.

                Tribal redesign plan means a tribally designed method for changing general assistance eligibility and/or payment levels in accordance with 25 U.S.C.A. § 13d-3.

                Tribal Work Experience Program (TWEP) means a program operated by tribal contract/grant or self-governance annual funding agreement, which provides eligible participants with work experience and training that promotes and preserves work habits and develops work skills aimed toward self-sufficiency. The Bureau payment standard is established by the Assistant Secretary.

                Unemployable means a person who meets the criteria specified in § 20.315.
              [65 FR 63159, Oct. 20, 2000; 65 FR 76563, Dec. 7, 2000, as amended at 66 FR 15030, Mar. 15, 2001]

              § 20.101
              What is the purpose of this part?
              The regulations in this part govern the provision to eligible Indians of the following kinds of financial assistance and social services:
              (a) Adult Care Assistance;
              (b) Burial Assistance;
              (c) Child Assistance;
              (d) Disaster Assistance;
              (e) Emergency Assistance;
              (f) General Assistance;
              (g) Services to Children, Elderly and Families; and
              (h) Tribal Work Experience Program.

              § 20.102
              What is the Bureau's policy in providing financial assistance and social services under this part?
              (a) Bureau social services programs are a secondary, or residual resource, and must not be used to supplement or supplant other programs.
              (b) The Bureau can provide assistance under this part to eligible Indians when comparable financial assistance or social services are either not available or not provided by state, tribal, county, local or other federal agencies.
              (c) Bureau financial assistance and social services are subject to annual Congressional appropriations.

              § 20.103
              Have the information collection requirements in this part been approved by the Office of Management and Budget?

              The information collection requirements contained in §§ 20.300, 20.400, and 20.500 were submitted for clearance to the Office of Management and Budget under 44 U.S.C. 35d et seq. This information collection was approved by OMB with OMB Control #1076-0017. The expiration date is on the form. The information is collected to determine applicant eligibility for services. The information will be used to determine applicant eligibility and to insure uniformity of services. Response is required to obtain a benefit. The public reporting burdens for this form are estimated to average 15 minutes per response including time for reviewing the instructions, gathering and maintaining data, and completing and reviewing the form.

            Subpart B—Welfare Reform

              § 20.200
              What contact will the Bureau maintain with State, tribal, county, local, and other Federal agency programs?

              We will coordinate all financial assistance and social services programs with state, tribal, county, local and other federal agency programs to ensure that the financial assistance and social services program avoids duplication of assistance.

              § 20.201
              How does the Bureau designate a service area and what information is required?
              The Assistant Secretary can designate or modify service areas for a tribe. If you are a tribe requesting a service area designation, you must submit each of the following:
              (a) A tribal resolution that certifies that:
              (1) All eligible Indians residing within the service area will be served; and
              (2) The proposed service area will not include counties or parts thereof that have reasonably available comparable services.
              (b) Additional documentation showing that:
              (1) The area is administratively feasible (that is, an adequate level of services can be provided to the eligible Indians residing in the area.);
              (2) No duplication of services exists; and
              (3) A plan describing how services will be provided to all eligible Indians can be implemented.
              (c) Documentation should be sent to the Regional Director or Office of Self-Governance.

              The Director or office will evaluate the information and make recommendations to the Assistant Secretary. The Assistant Secretary can make a determination to approve or disapprove and publish notice of the designation of service area and the Indians to be served in the Federal Register. Tribes currently providing services are not required to request designation for service areas unless they make a decision to modify their existing service areas.

              § 20.202
              What is a tribal redesign plan?
              If you are a tribe administering a general assistance program, you can develop and submit to us a tribal redesign plan to change the way that you administer the program.
              (a) A tribal redesign plan allows a tribe to:
              (1) Change eligibility for general assistance in the service area; or
              (2) Change the amount of general assistance payments for individuals within the service area.
              (b) If you develop a tribal redesign plan it must:
              (1) Treat all persons in the same situation equally; and
              (2) Will not result in additional expenses for the Bureau solely because of any increased level of payments.

              § 20.203
              Can a tribe incorporate assistance from other sources into a tribal redesign plan?
              Yes, when a tribe redesigns its general assistance program, it may include assistance from other sources (such as Public Law 102-477 federal funding sources) in the plan.

              § 20.204
              Must all tribes submit a tribal redesign plan?
              No, you must submit a tribal redesign plan under § 20.206 only if you want to change the way that the General Assistance program operates in your service area.

              § 20.205
              Can tribes change eligibility criteria or levels of payments for General Assistance?
              Yes, if you have a redesign plan, you can change eligibility criteria or levels of payment for general assistance.
              (a) The funding level for your redesigned general assistance program will be the same funding received in the most recent fiscal or calendar year, whichever applies.
              (b) If you do not have a prior year level of funding, the Bureau or Office of Self-Governance will establish a tentative funding level based upon best estimates for caseload and expenditures.
              (c) A Bureau servicing office can administer a tribal redesign plan as requested by a tribal resolution.

              § 20.206
              Must a tribe get approval for a tribal redesign plan?

              If you have a Public Law 93-638 contract or receive direct services from us, you must obtain our approval before implementing a redesign plan. You can apply for approval to the Regional Director through the Bureau servicing office.

              (a) You must submit your redesign plan for approval at least 3 months before the effective date.
              (b) If you operate with a self-governance annual funding agreement, you must obtain the approval of the redesign from the Office of Self-Governance.
              (c) If you operate with a Public Law 102-477 grant, you must obtain approval from the Bureau Central Office.
              [65 FR 63159, Oct. 20, 2000; 65 FR 76563, Dec. 7, 2000]

              § 20.207
              Can a tribe use savings from a tribal redesign plan to meet other priorities of the tribe?
              Yes, you may use savings from a redesign of the general assistance program to meet other priorities.

              § 20.208
              What if the tribal redesign plan leads to increased costs?
              The tribe must meet any increase in cost to the General Assistance program that results solely from tribally increased payment levels due to a redesign plan.

              § 20.209
              Can a tribe operating under a tribal redesign plan go back to operating under this part?
              Yes, a tribe operating under a tribal redesign plan can choose to return to operation of the program as provided in §§ 20.300 through 20.323.

              § 20.210
              Can eligibility criteria or payments for Burial Assistance, Child Assistance, and Disaster Assistance and Emergency Assistance change?
              No, unless otherwise provided by law, the Bureau nor a tribe may change eligibility criteria or levels of payment for Burial Assistance, Child Assistance, Disaster Assistance, and Emergency Assistance awarded in Public Law 93-638 contracts, Public Law 102-477 grants, or Public Law 103-413 self-governance annual funding agreements.

            Subpart C—Direct Assistance

              Eligibility for Direct Assistance

                § 20.300
                Who qualifies for Direct Assistance under this subpart?
                To be eligible for assistance or services under this part, an applicant must meet all of the following criteria:
                (a) Meet the definition of Indian as defined in this part;
                (b) Not have sufficient resources to meet the essential need items defined by the Bureau standard of assistance for those Bureau programs providing financial payment;
                (c) Reside in the service area as defined in § 20.100; and
                (d) Meet the additional eligibility criteria for each of the specific programs of financial assistance or social services in §§ 20.301 through 20.516.
                [65 FR 63159, Oct. 20, 2000, as amended at 66 FR 15030, Mar. 15, 2001]

                § 20.301
                What is the goal of General Assistance?
                The goal of the General Assistance program is to increase self-sufficiency. Each General Assistance recipient must work with the social services worker to develop and sign an Individual Self-Sufficiency Plan (ISP). The plan must outline the specific steps the individual will take to increase independence by meeting the goal of employment.

                § 20.302
                Are Indian applicants required to seek assistance through Temporary Assistance for Needy Families?
                Yes, all Indian applicants with dependent children are required to apply for Temporary Assistance for Needy Families (TANF) and follow TANF regulations.

                § 20.303
                When is an applicant eligible for General Assistance?
                To be eligible for General Assistance an applicant must:
                (a) Meet the criteria contained in § 20.300;

                (b) Apply concurrently for financial assistance from other state, tribal, county, local, or other federal agency programs for which he/she is eligible;

                (c) Not receive any comparable public assistance; and
                (d) Develop and sign an employment strategy in the ISP with the assistance of the social services worker to meet the goal of employment through specific action steps including job readiness and job search activities.

                § 20.304
                When will the Bureau review eligibility for General Assistance?
                The Bureau will review eligibility for General Assistance:
                (a) Every 3 months for individuals who are not exempt from seeking or accepting employment in accordance with § 20.315 or the ISP;
                (b) Every 6 months for all recipients; and
                (c) Whenever there is a change in status that can affect a recipient's eligibility or amount of assistance. Recipients must immediately inform the social services office of any such changes.

                § 20.305
                What is redetermination?
                Redetermination is an evaluation by a social services worker to assess the need for continued financial assistance as outlined in § 20.304. It includes:
                (a) A home visit;
                (b) An estimate of income, living circumstances, household composition for the month(s) for which financial assistance is to be provided; and
                (c) Appropriate revisions to the case plan and the ISP.

                § 20.306
                What is the payment standard for General Assistance?
                (a) Under Public Law 104-193, the Bureau must use the same TANF payment standard (and any associated rateable reduction) that exists in the state or service area where the applicant or recipient resides. This payment standard is the amount from which the Bureau subtracts net income and resources to determine General Assistance eligibility and payment levels;
                (b) If the state does not have a standard for an adult, we will use either the difference between the standard for a child and the standard for a household of two, or one-half of the standard for a household of two, whichever is greater; and
                (c) If the state does not have a TANF program, we will use the AFDC payment standard which was in effect on September 30, 1995, in the State where the applicant or recipient resides.

              Determining Need and Income

                § 20.307
                What resources does the Bureau consider when determining need?
                When the Bureau determines General Assistance eligibility and payment levels, we consider income and other resources as specified in §§ 20.308 and 20.309.
                (a) All income, earned or unearned, must be calculated in the month it is received and as a resource thereafter, except that certain income obtained from the sale of real or personal property may be exempt as provided in § 20.309.
                (b) Resources are considered to be available when they are converted to cash.

                § 20.308
                What does earned income include?
                Earned income is cash or any in-kind payment earned in the form of wages, salary, commissions, or profit, from activities by an employee or self-employed individual. Earned income includes:
                (a) Any one-time payment to an individual for activities which were sustained over a period of time (for example, the sale of farm crops, livestock, or professional artists producing art work); and
                (b) With regard to self-employment, total profit from a business enterprise (i.e., gross receipts less expenses incurred in producing the goods or services). Business expenses do not include depreciation, personal business and entertainment expenses, personal transportation, capital equipment purchases, or principal payments on loans for capital assets or durable goods.

                § 20.309
                What does unearned income include?
                Unearned income includes, but is not limited to:

                (a) Income from interest; oil and gas and other mineral royalties; gaming income per capita distributions; rental property; cash contributions, such as child support and alimony, gaming winnings; retirement benefits;

                (b) Annuities, veteran's disability, unemployment benefits, and federal and state tax refunds;
                (c) Per capita payments not excluded by federal statute;
                (d) Income from sale of trust land and real or personal property that is set aside for reinvestment in trust land or a primary residence, but has not been reinvested in trust land or a primary residence at the end of one year from the date the income was received;
                (e) In-kind contributions providing shelter at no cost to the individual or household, this must equal the amount for shelter included in the state standard, or 25 percent of the state standard, whichever is less; and
                (f) Financial assistance provided by a state, tribal, county, local, or other federal agency.

                § 20.310
                What recurring income must be prorated?
                The social services worker will prorate the following recurring income:
                (a) Recurring income received by individuals over a 12-month period for less than a full year's employment (for example, income earned by teachers who are not employed for a full year);
                (b) Income received by individuals employed on a contractual basis over the term of a contract; and
                (c) Intermittent income received quarterly, semiannually, or yearly over the period covered by the income.

                § 20.311
                What amounts will the Bureau deduct from earned income?
                (a) The social services worker will deduct the following amounts from earned income:
                (1) Other federal, state, and local taxes;
                (2) Social Security (FICA);
                (3) Health insurance;
                (4) Work related expenses, including reasonable transportation costs;
                (5) Child care costs for children under the age of 6 except where the other parent in the home is unemployed and physically able to care for the children; and
                (6) The cost of special clothing, tools, and equipment directly related to the individual's employment.
                (b) For self-employed individuals, the social services worker will deduct the costs of conducting business and all of the amounts in paragraph (a) of this section.

                § 20.312
                What amounts will the Bureau deduct from income or other resources?
                The social services worker will deduct the following amounts from income, or other resources:
                (a) The first $2,000 of liquid resources annually available to the household;
                (b) Any home produce from a garden, livestock, and poultry used by the applicant or recipient and his/her household for their consumption; and
                (c) Resources specifically excluded by federal statute.

                § 20.313
                How will the Bureau compute financial assistance payments?
                (a) The social services worker will compute financial assistance payments by beginning with the Bureau standard of assistance and doing the following:
                (1) Subtracting from all resources calculated under §§ 20.307 through 20.310;
                (2) Subtracting the rateable reduction or maximum payment level used by the state where the applicant lives;
                (3) Subtracting an amount for shelter (see paragraph (b) of this section for details on how to calculate a shelter amount); and
                (4) Rounding the result down to the next lowest dollar.
                (b) The social services worker must calculate a shelter amount for purposes of paragraph (a)(3) of this section. To calculate the shelter amount:
                (1) The shelter amount must not exceed the amount for shelter in the state TANF standard;
                (2) If the state TANF does not specify an amount for shelter, the social services worker must calculate the amount as 25 percent of the total state TANF payment; and

                (3) If there is more than one household in a dwelling, the social services worker must prorate the actual shelter cost among the households receiving General Assistance; this amount cannot exceed the amount in the standard for individuals in similar circumstances. The head of each household is responsible for his/her portion of the documented shelter cost.

                (c) The social services worker must not provide General Assistance payments for any period before the date of the application for assistance.

              Employment Requirements

                § 20.314
                What is the policy on employment?
                (a) An applicant or recipient must:
                (1) Actively seek employment, including the use of available state, tribal, county, local or Bureau-funded employment services;
                (2) Make satisfactory progress in an ISP; and
                (3) Accept local and seasonable employment when it is available.
                (b) A head of household who does not comply with this section will not be eligible for General Assistance for a period of at least 60 days but not more than 90 days. This action must be documented in the case file.
                (c) The policy in this section does not apply to any person meeting the criteria in § 20.315.

                § 20.315
                Who is not covered by the employment policy?
                The employment policy in § 20.314 does not apply to the persons shown in the following table.

                    The employment policy in § 20.314 does not apply to . . .
                    if . . .
                    and . . .

                    (a) Anyone younger than 16

                    (b) A full-student under the age of 19
                    He/she is attending an elementary or secondary school or a vocational or technical school equivalent to a secondary school
                    He/she is making satisfactory progress.

                    (c) A person enrolled at least half-time in a program of study under Section 5404 of Pub. L. 100-297
                    He/she is making satisfactory progress
                    He/she was an active General Assistance recipient for a minimum of 3 months before determination/redetermination of eligibility.

                    (d) A person suffering from a temporary medical injury or illness
                    It is documented in the case plan that the illness or injury is serious enough to temporarily prevent employment
                    He/she must be referred to SSI if the disability status exceeds 3 months.

                    (e) An incapacitated person who has not yet received Supplemental Security Income (SSI) assistance
                    A physician, psychologist, or social services worker certifies that a physical or mental impairment (either by itself, or in conjunction with age) prevents the individual from being employed
                    The assessment is documented in the case plan.

                    (f) A caretaker who is responsible for a person in the home who has a physical or mental impairment
                    A physician or certified psychologist verifies the condition
                    The case plan documents that: the condition requires the caretaker to be home on a virtually continuous basis; and there is no other appropriate household member available to provide this care.

                    (g) A parent or other individual who does not have access to child care
                    He/she personally provides full-time care to a child under the age of 6

                    (h) A person for whom employment is not accessible
                    There is a minimum commuting time of one hour each way

                § 20.316
                What must a person covered by the employment policy do?
                (a) If you are covered by the employment policy in § 20.314, you must seek employment and provide evidence of your monthly efforts to obtain employment in accordance with your ISP.
                (b) If you do not seek and accept available local and seasonal employment, or you quit a job without good cause, you cannot receive General Assistance for a period of at least 60 days but not more than 90 days after you refuse or quit a job.

                § 20.317
                How will the ineligibility period be implemented?
                (a) If you refuse or quit a job, your ineligibility period will continue as provided in § 20.316(b) until you seek and accept appropriate available local and seasonal employment and fulfill your obligations already agreed to in the ISP;
                (b) The Bureau will reduce your suspension period by 30 days when you show that you have sought local and seasonal employment in accordance with the ISP; and
                (c) Your eligibility suspension will affect only you. The Bureau will not apply it to other eligible members of the household.

                § 20.318
                What case management responsibilities does the social services worker have?
                In working with each recipient, you, the social services worker must:
                (a) Assess the general employability of the recipient;
                (b) Assist the recipient in the development of the ISP;
                (c) Sign the ISP;
                (d) Help the recipient identify the service(s) needed to meet the goals identified in their ISP;
                (e) Monitor recipient participation in work related training and other employment assistance programs; and
                (f) Document activities in the case file.

                § 20.319
                What responsibilities does the general assistance recipient have?
                In working with the social services worker, you, the recipient, must:
                (a) Participate with the social services worker in developing an ISP and sign the ISP;
                (b) Perform successfully in the work related activities, community service, training and/or other employment assistance programs developed in the ISP;
                (c) Participate successfully in treatment and counseling services identified in the ISP;
                (d) Participate in evaluations of job readiness and/or any other testing required for employment purposes; and
                (e) Demonstrate that you are actively seeking employment by providing the social services worker with evidence of job search activities as required in the ISP.

              Tribal Work Experience Program (TWEP)

                § 20.320
                What is TWEP?
                TWEP is a program that provides work experience and job skills to enhance potential job placement for the general assistance recipient. TWEP programs can be incorporated within Public Law 93-638 self-determination contracts, Public Law 102-477 grants, and Public Law 103-413 self-governance annual funding agreements at the request of the tribe.

                § 20.321
                Does TWEP allow an incentive payment?
                Yes, incentive payments to participants are allowed under TWEP.
                (a) Incentive payments are separate. The Bureau will not consider incentive payments as wages or work related expenses, but as grant assistance payments under §§ 20.320 through 20.323.
                (b) The approved payment will not exceed the Bureau maximum TWEP payment standard established by the Assistant Secretary.

                § 20.322
                Who can receive a TWEP incentive payment?
                (a) The head of the family unit normally receives the TWEP assistance payment.
                (b) The social services worker can designate a spouse or other adult in the assistance group to receive the TWEP assistance payment. The social services worker will do this only if:
                (1) The recognized head of the family unit is certified as unemployable; and
                (2) The designation is consistent with the ISP.
                (c) Where there are multiple family units in one household, one member of each family unit will be eligible to receive the TWEP incentive payment.

                § 20.323
                Will the local TWEP be required to have written program procedures?

                Yes, the local TWEP must have specific written program procedures that cover hours of work, acceptable reasons for granting leave from work, evaluation criteria and monitoring plans and ISP's for participants. Work readiness progress must be documented in each ISP.

              Burial Assistance

                § 20.324
                When can the Bureau provide Burial Assistance?
                In the absence of other resources, the Bureau can provide Burial Assistance for eligible indigent Indians meeting the requirements prescribed in § 20.300.

                § 20.325
                Who can apply for Burial Assistance?
                If you are a relative of a deceased Indian, you can apply for burial assistance for the deceased Indian under this section.
                (a) To apply for burial assistance under this section, you must submit the application to the social services worker. You must submit this application within 180 days following death.
                (b) The Bureau will determine eligibility based on the income and resources available to the deceased in accordance with § 20.100. This includes but is not limited to SSI, veterans' death benefits, social security, and Individual Indian Money (IIM) accounts. Determination of need will be accomplished on a case-by-case basis using the Bureau payment standard.
                (c) The Bureau will not approve an application unless it meets the criteria specified at § 20.300.
                (d) The approved payment will not exceed the Bureau maximum burial payment standard established by the Assistant Secretary.
                [65 FR 63159, Oct. 20, 2000, as amended at 81 FR 10477, Mar. 1, 2016]

                § 20.326
                Does Burial Assistance cover transportation costs?
                Transportation costs directly associated with burials are normally a part of the established burial rate. If a provider adds an additional transportation charge to the burial rate because of extenuating circumstances, the social services worker can pay the added charge. To do this, the social services worker must ensure and document in the case plan that:
                (a) The charges are reasonable and equitable;
                (b) The deceased was an eligible indigent Indian who was socially, culturally, and economically affiliated with his or her tribe; and
                (c) The deceased resided in the service area for at least the last 6 consecutive months of his/her life.

              Disaster Assistance

                § 20.327
                When can the Bureau provide Disaster Assistance?
                Disaster assistance is immediate and/or short-term relief from a disaster and can be provided to a tribal community in accordance with § 20.328.

                § 20.328
                How can a tribe apply for Disaster Assistance?
                (a) The tribe affected by the disaster is considered the applicant and must submit the following to the Regional Director through the local Superintendent:
                (1) A tribal resolution requesting disaster assistance;
                (2) A copy of county, state, or Presidential declaration of disaster; and
                (3) The projected extent of need in the service area not covered by other federal funding sources.
                (b) The Regional Director must forward the above tribal documents and his/her recommendation to the Assistant Secretary for final decision on whether disaster assistance will be provided and to what extent.

              Emergency Assistance

                § 20.329
                When can the Bureau provide Emergency Assistance payments?
                Emergency Assistance payments can be provided to individuals or families who suffer from a burnout, flood, or other destruction of their home and loss or damage to personal possessions. The Bureau will make payments only for essential needs and other non-medical necessities.

                § 20.330
                What is the payment standard for Emergency Assistance?
                The approved payment will not exceed the Bureau's maximum Emergency Assistance payment standard established by the Assistant Secretary.

              Adult Care Assistance

                § 20.331
                What is Adult Care Assistance?
                Adult care assistance provides non-medical care for eligible adult Indians who:
                (a) Have needs that require personal care and supervision due to advanced age, infirmity, physical condition, or mental impairments; and
                (b) Cannot be cared for in their own home by family members.

                § 20.332
                Who can receive Adult Care Assistance?
                An adult Indian is eligible to receive adult care assistance under this part if he/she:
                (a) Is unable to meet his/her basic needs, including non-medical care and/or protection, with his/her own resources; and
                (b) Does not require intermediate or skilled nursing care.

                § 20.333
                How do I apply for Adult Care Assistance?
                To apply for adult care assistance, you or someone acting on your behalf must submit an application form to the social services worker.

                § 20.334
                What happens after I apply?
                (a) The Bureau will determine eligibility based upon the income and available resources of the person named in the application.
                (b) Upon approval by the Bureau Line Officer, payments will be approved under purchase of service agreements for adult care provided in state or tribally licensed or certified group settings, or by individual service providers licensed or certified for homemaker service.
                [65 FR 63159, Oct. 20, 2000; 65 FR 76563, Dec. 7, 2000]

                § 20.335
                What is the payment standard for Adult Care Assistance?
                The approved payment for adult care assistance will not exceed the applicable state payment rate for similar care.
                [65 FR 63159, Oct. 20, 2000; 65 FR 76563, Dec. 7, 2000]

            Subpart D—Services to Children, Elderly, and Families

              § 20.400
              Who should receive Services to Children, Elderly, and Families?
              Services to Children, Elderly, and Families will be provided for Indians meeting the requirements prescribed in § 20.300 who request these services or on whose behalf these services are requested.

              § 20.401
              What is included under Services to Children, Elderly, and Families?
              Services to Children, Elderly, and Families include, but are not limited to, the following:
              (a) Assistance in solving problems related to family functioning and interpersonal relationships;
              (b) Referral to the appropriate resource for problems related to illness, physical or mental handicaps, drug abuse, alcoholism, and violation of the law; and
              (c) Protective services.
              In addition, economic opportunity and money management may also be provided.

              § 20.402
              When are protective services provided?
              Protective services are provided when children or adults:
              (a) Are deprived temporarily or permanently of needed supervision by responsible adults;
              (b) Are neglected, abused or exploited;
              (c) Need services when they are mentally or physically handicapped or otherwise disabled; or
              (d) Are under the supervision of the Bureau in regard to the use and disbursement of funds in the child's or adult's Individual Indian Money (IIM) account. Those IIM accounts that are established for children will be supervised by the Bureau until the child becomes an adult as defined in 25 CFR 115.

              § 20.403
              What do protective services include?

              Protective services provided to a child, family or elderly person will be documented in the case files and:

              (a) Can include, but are not limited to, any of the following:
              (1) Providing responses to requests from members of the community on behalf of children or adults alleged to need protective services;
              (2) Providing services to children, elderly, and families, including referrals for homemaker and day care services for the elderly and children;
              (3) Coordinating with Indian courts to provide services, which may include, but are not limited to, the following:
              (i) Investigating and reporting on allegations of child abuse and neglect, abandonment, and conditions that may require referrals (such as mental or physical handicaps);
              (ii) Providing social information related to the disposition of a case, including recommendation of alternative resources for treatment; and
              (iii) Providing placement services by the court order before and after adjudication.
              (4) Coordinating with other community services, including groups, agencies, and facilities in the community. Coordination can include, but are not limited to:
              (i) Evaluating social conditions that affect community well-being;
              (ii) Treating conditions identified under paragraph (b)(1) of this section that are within the competence of social services workers; and
              (iii) Working with other community agencies to identify and help clients to use services available for assistance in solving the social problems of individuals, families, and children.
              (5) Coordinating with law enforcement and tribal courts, to place the victim of an alleged and/or substantiated incident of abuse, neglect or exploitation out of the home to assure safety while the allegations are being investigated. Social services workers may remove individuals in life threatening situations. After a social services assessment, the individual must be either returned to the parent(s) or to the home from which they were removed or the social services worker must initiate other actions as provided by the tribal code; and
              (6) Providing social services in the home, coordinating and making referrals to other programs/services, including Child Protection, and/or establishing Multi-Disciplinary Teams.
              (b) Must include, where the service population includes IIM account holders:
              (1) Conducting, upon the request of an account holder or other interested party, a social services assessment to evaluate an adult account holder's circumstances and abilities and the extent to which the account holder needs assistance in managing his or her financial affairs; and
              (2) Managing supervised IIM accounts of children and adults (in conjunction with legal guardians), which includes, but is not limited to, the following:
              (i) Evaluating the needs of the account holder;
              (ii) Developing, as necessary and as permitted under 25 CFR 115, a one-time or an annual distribution plan for funds held in an IIM account along with any amendments to the plan for approval by the Bureau;
              (iii) Monitoring the implementation of the approved distribution plan to ensure that the funds are expended in accordance with the distribution plan;
              (iv) Reviewing the supervised account every 6 months or more often as necessary if conditions have changed to warrant a recommendation to change the status of the account holder, or to modify the distribution plan;
              (v) Reviewing receipts for an account holder's expenses and verifying that expenditures of funds from a supervised IIM account were made in accordance with the distribution plan approved by the Bureau, including any amendments made to the plan; and
              (vi) Petitioning a court of competent jurisdiction for the appointment of, or change in, a legal guardian for a client, where appropriate.
              [65 FR 63159, Oct. 20, 2000; 65 FR 76563, Dec. 7, 2000]

              § 20.404
              What information is contained in a social services assessment?
              A social services assessment must contain, but is not limited to, the following:

              (a) Identifying information about the client (for example, name, address, age, gender, social security number, telephone number, certificate of Indian blood, education level), family history and medical history of the account holder;
              (b) Description of the household composition: information on each member of the household (e.g., name, age, and gender) and that person's relationship to the client;
              (c) The client's current resources and future income (e.g., VA benefits, retirement pensions, trust assets, employment income, judgment funds, general assistance benefits, unemployment benefits, social security income, supplemental security income and other governmental agency benefits);
              (d) A discussion of the circumstances which justify special services, including ability of the client to handle his or her financial affairs and to conduct day-to-day living activities. Factors to be considered should include, but are not limited to:
              (1) Age;
              (2) Developmental disability;
              (3) Chronic alcoholism or substance abuse;
              (4) Lack of family assistance or social support systems, or abandonment;
              (5) Self-neglect;
              (6) Financial exploitation or abuse;
              (7) Physical exploitation, neglect or abuse;
              (8) Senility; and
              (9) Dementia.
              (e) Documentation supporting the need for assistance (e.g., medical reports, police reports, court orders, letters from interested parties, prior assessments or evaluations, diagnosis by psychologist/psychiatrist); and
              (f) Summary of findings and proposed services to meet the identified needs of the client.

            Subpart E—Child Assistance

              § 20.500
              Who is eligible for Child Assistance?
              A child is eligible for Child Assistance under this subpart if all of the following criteria are met:
              (a) The child must meet the requirements in § 20.300.
              (b) The child's legally responsible parent, custodian/guardian, or Indian court having jurisdiction must:
              (1) Request assistance under this part in writing;
              (2) State that they are unable to provide necessary care and guidance for the child, or to provide for the child's special needs in his/her own home; and
              (3) Provide a documented social services assessment from the social services worker of whether parent(s), custodian, guardian(s) are able to care for their child.
              (c) All income accruing to the child, except income exempted by federal statute, must be used to meet the cost of special needs, foster home or residential care facility as authorized and arranged by social services.

              How Child Assistance Funds Can Be Used

                § 20.501
                What services can be paid for with Child Assistance funds?
                The social services program can use Child Assistance funds to pay for services as shown in the following table.

                    Service that can be paid
                    Conditions that must be met
                    Maximum payment level

                    (a) Room and board at residential care facilities licensed by the tribe or state
                    There must be no other resources available to pay these costs. See § 20.502 for other conditions that must be met
                    The state or county residential care rate in the state in which the child resides.

                    (b) Adoption or guardianship subsidies
                    There must be no other resources available to pay for this service. See § 20.503 for other conditions that must be met
                    The Bureau's maximum adoption and guardianship payment standard.

                    (c) Short-term homemaker services
                    There must be no other resources (such as Medicaid) available to pay for this service. Services can be purchased for a maximum of 3 months. See § 20.504 for other conditions that must be met
                    As approved by the Bureau line officer.

                    (d) Temporary foster care
                    See § 20.509 for conditions that must be met
                    The state or county foster care rate in the state in which the child resides.

                § 20.502
                Can Child Assistance funds be used to place Indian children in residential care facilities?
                You, the social service program, can use Child Assistance funds to purchase or contract for room and board in licensed residential care facilities.
                (a) You can use Child Assistance funds to pay only for room and board. You must pay for other services that may be needed, including mental health, education, and physical therapy from other sources.
                (b) Before placement the various funding sources must sign an agreement that specifies the services each source will pay. The Bureau Line Officer must approve this agreement.

                § 20.503
                When can Child Assistance funds be used for Indian adoption or guardianship subsidies?
                You, the social services program, can use Child Assistance funds to provide either adoption or guardianship subsidies if all of the following are true:
                (a) The child is 17 or younger;
                (b) The child has been in foster care prior to approval of the subsidy;
                (c) The social services worker has considered all other available resources, attempted permanency planning, and documented in the case file that placement was in the best interest of the child; and
                (d) The Bureau Line Officer approves the subsidy before it is authorized and redetermines eligibility on a yearly basis.

                § 20.504
                What short-term homemaker services can Child Assistance pay for?
                You, the social services program, can use Child Assistance funds to pay for homemaker services as specified in § 20.501 and this section. While housekeeping services are covered, homemaker services must focus on training household members in such skills as child care and home management. Homemaker services are provided for:
                (a) A child who would otherwise need foster care placement or who would benefit from supportive (protective) supervision;
                (b) A severely handicapped or special needs child whose care places undue stress on the family; or
                (c) A child whose care would benefit from specialized training and supportive services provided to family members.

                § 20.505
                What services are provided jointly with the Child Assistance Program?
                The services listed in this section are provided by Services to Children, Elderly, and Families under this subpart jointly with the Child Assistance Program.
                (a) Social services provided for children in their own home aimed at strengthening the family's ability to provide for and nurture their child. These supportive services can include:
                (1) Social work case management;
                (2) Counseling for parents and children;
                (3) Group work, day care; and
                (4) Homemaker services, when necessary.
                (b) Protection of Indian children from abuse, neglect or exploitation in coordination with law enforcement and courts.
                (c) A written case plan must be established within 30 days of placement and reviewed within 60 days of placement or as outlined in tribally established standards, when temporary placement outside the home is necessary. The case plan must contain a written agreement signed among the various funding sources to identify the services that will be paid by each source in those instances where the child requires services outside the authority of the Child Assistance program.

              Foster Care

                § 20.506
                What information is required in the foster care case file?
                At a minimum the following information is required:
                (a) Tribal enrollment verification in accordance with § 20.100;
                (b) A written case plan (established within 30 days of placement), which would include a permanency plan detailing the need for and expected length of placement;

                (c) Information on each child's health status and school records, including medications and immunization records;

                (d) Parental consent(s) for emergency medical care, school, and transportation;
                (e) A signed plan for payment, including financial responsibility of parents and use of other appropriate resources;
                (f) A copy of the certification/license of the foster home;
                (g) A current photo of each child;
                (h) A copy of the social security card, birth certificate, Medicaid card and current court order;
                (i) For a placement beyond 30 days, copy of the action taken or authorized by a court of competent jurisdiction that documents the need for protection of the child;
                (j) For an involuntary placement, a social services assessment completed by a social services worker within 30 days of placement;
                (k) Documentation of a minimum of one visit to the placement setting per month by the social services worker with each child; and
                (l) A list of all prior placements, including the names of the foster parents and dates of placements.

                § 20.507
                What requirements must foster care providers meet?
                If a child needs foster care, the social services worker must select care that meets the physical, behavioral, and emotional needs of the child. Foster care is intended to be short-term. The case plan must show that all of the requirements in paragraphs (a) through (c) of this section are met:
                (a) All foster homes must be certified or licensed by the tribe or other appropriate authority. Foster care placements beyond 30 days must be made through a court of competent jurisdiction to ensure that:
                (1) Federal background checks are completed prior to placement as required by Public Law 101-630; and
                (2) Training (optional for placements with relatives) is provided to the foster family.
                (b) If the child is placed with relatives in an adoption and guardian placement, the case file must contain an approved current home study.
                (c) An off-reservation foster home, or residential care facility under contract must meet the licensing standards of the state in which it is located or tribally established certifying/licensing standards.

                § 20.508
                What must the social services agency do when a child is placed in foster care, residential care or guardianship home?
                The social services agency must make efforts to secure child support for the child in foster care or residential care through a court of competent jurisdiction.

                § 20.509
                What must the social services worker do when a child is placed in foster care or residential care facility?
                When a child is placed in foster care or a residential care facility the social services worker must do all of the following:
                (a) Discuss with foster parents or caretakers, the child's special needs, including disabilities;
                (b) Provide counseling or referral to available resources;
                (c) Refer any child requiring medical, substance abuse, or behavioral (mental) health services to an appropriate health services to be assessed and to receive services;
                (d) Ensure that the case plan provides for all necessary costs of care (including clothing, incidentals, and personal allowance) in accordance with established state standards of payments;
                (e) Develop a foster family agreement signed and dated by the parties involved that specifies the roles and responsibilities of the biological parents, foster parents, and placing agency; the terms of payment of care; and the need for adherence to the established case plan;
                (f) Immediately report any occurrences of suspected child abuse or neglect in a foster home or residential care facility to law enforcement and protective services in accordance with tribal standards and reporting requirements under Public Law 101-630; and
                (g) Complete a yearly assessment of each tribal or state licensed foster home or residential care facility evaluating how the home has fulfilled its function relative to the needs of the child placed in the home.

                § 20.510
                How is the court involved in child placements?
                The court retains custody of a child in placement and the care and supervision must be given to the appropriate social services agency. While the court can issue any court order consistent with tribal law, the courts do not have the authority to require expenditure of federal funds to pay for specifically prescribed or restrictive services or out-of-home placements of children. Case plans must be reviewed with the appropriate court at least every 6 months and a permanency hearing held within 12 months after a child enters foster care or residential care, or according to established tribal standards. These standards can be established in the tribal code and can be in accordance with available funding source requirements.

                § 20.511
                Should permanency plans be developed?
                Permanency planning must be developed for all child placements within 6 months after initial placement of the child. Every reasonable effort will be made to preserve the family and/or reunify the children with the family and relatives when developing permanency plans. However, the child's health and safety are the paramount concern.

                § 20.512
                Can the Bureau/tribal contractors make Indian adoptive placements?
                The Bureau is not an authorized adoption agency and staff must not arrange adoptive placements. However, long-term permanency planning can involve the Bureau social services workers cooperating with tribal courts to provide an adoption subsidy. Tribal contractors will provide adoption services as authorized by the tribal courts in accordance with tribal codes/law.

                § 20.513
                Should Interstate Compacts be used for the placement of children?
                Interstate compact agreements should be used when appropriate for foster care, adoption and guardianship to protect the best interests of the child and to assure the availability of the funding resources and services from the originating placement source.

                § 20.514
                What assistance can the courts request from social services on behalf of children?
                The courts can request the following:
                (a) Investigations of law enforcement reports of child abuse and neglect;
                (b) Assessment of the need for out-of-home placement of the child; and
                (c) Provision of court-related services following adjudication, such as monitoring, foster care, or residential care, or pre/post placement services.

                § 20.515
                What is required for case management?
                Social services workers must document regular contact with children and families in accordance with specific program requirements. The social services agency is responsible for implementation of quality case management; this requires the supervisor's review of case plans every 90 days.

                § 20.516
                How are child abuse, neglect or exploitation cases to be handled?
                Reported child abuse, neglect or exploitation cases and the requirement for background clearances will be handled in accordance with the Indian Child Protection and Family Violence Prevention Act of 1990, Public Law 101-630, 25 CFR part 63, federal and/or state laws where applicable, and tribal codes which protect Indian children and victims of domestic violence. This includes developing and maintaining Child Protection Teams in accordance to Public Law 101-630 and collection of child abuse, neglect and exploitation data according to Public Law 99-570. Those cases referred by the state will be handled according to the Indian Child Welfare Act, Public Law 95-608, and 25 CFR part 23.

            Subpart F—Administrative Procedures

              § 20.600
              Who can apply for financial assistance or social services?
              (a) You can apply for financial assistance or social services under this part if you:
              (1) Believe that you are eligible to receive benefits; or

              (2) Are applying on behalf of someone who you believe is eligible to receive benefits.

              (b) Under paragraph (a) of this section, any of the following may apply for benefits on behalf of another person: relatives, interested individuals, social services agencies, law enforcement agencies, courts, or other persons or agencies.

              § 20.601
              How can applications be submitted?
              You can apply for financial assistance or social services under this part by:
              (a) Completing an application that you can get from your social services worker or tribe; or
              (b) Through an interview with a social services worker who will complete an application for you based on the oral interview.

              § 20.602
              How does the Bureau verify eligibility for social services?
              (a) You, the applicant, are the primary source of information used to determine eligibility and need. If it is necessary to secure information such as medical records from other sources, you must authorize the release of information.
              (b) You must immediately report to your social services worker any changes in circumstances that may affect your eligibility or the amount of financial assistance that you receive.

              § 20.603
              How is an application approved or denied?
              (a) Each application must be approved if the applicant meets the eligibility criteria in this part for the type of assistance requested and all recipients will be redetermined for eligibility every 6 months. Financial assistance will be made retroactive to the application date.
              (b) An application must be denied if the applicant does not meet the eligibility criteria in §§ 20.300 through 20.516.
              (c) The social services worker must approve or deny an application within 30 days of the application date. The local social services worker must issue written notice of the approval or denial of each application within 45 days of the application date.
              (d) If for a good reason the social services worker cannot meet the deadline in paragraph (c) of this section, he or she must notify the applicant in writing of:
              (1) The reasons why the decision cannot be made; and
              (2) The deadline by which the social services worker will send the applicant a decision.
              [65 FR 63159, Oct. 20, 2000; 65 FR 76563, Dec. 7, 2000]

              § 20.604
              How is an applicant or recipient notified that benefits or services are denied or changed?
              If the Bureau increases, decreases, suspends, or terminates financial assistance, the social services worker must mail or hand deliver to the applicant or recipient a written notice of the action. The notice must:
              (a) State the action taken, the effective date, and the reason(s) for the decision;
              (b) Inform the applicant or recipient of the right to request a hearing if dissatisfied with the decision;
              (c) Advise the applicant or recipient of the right to be represented by an authorized representative at no expense to the Bureau;
              (d) Include the address of the local Superintendent or his/her designated representative to whom the request for a hearing must be submitted;
              (e) Advise the applicant or recipient that failure to request a hearing within 20 days of the date of the notice will cause the decision to become final and not subject to appeal under 25 CFR part 2; and
              (f) Be delivered to the applicant 20 days in advance of the effective date of the action.

              § 20.605
              What happens when an applicant or recipient appeals a decision under this subpart?
              If you are an applicant or recipient and appeal a decision made under § 20.604, you can continue to receive your assistance while your appeal is pending. For this to happen, you must submit your appeal by the deadline in § 20.604(e).

              § 20.606
              How is an incorrect payment adjusted or recovered?

              (a) When an incorrect payment of financial assistance has been made to an individual or family, a proper adjustment or recovery is required.
              (b) The proper adjustment or recovery is based upon individual need as appropriate to the circumstances that resulted in an incorrect payment.
              (c) Before adjustment or recovery, the recipient will be notified of the proposal to correct the payment and given an informal opportunity to resolve the matter.
              (d) If an informal resolution cannot be attained, the recipient must be given a written notice of decision and the procedures of § 20.604 will apply.
              (e) If a hearing is requested, the hearing will be conducted in accordance with the procedures under §§ 20.700 through 20.705.

              § 20.607
              What happens when applicants or recipients knowingly and willfully provide false or fraudulent information?
              Applicants or recipients who knowingly and willfully provide false or fraudulent information are subject to prosecution under 18 U.S.C. § 1001, which carries a fine of not more than $10,000 or imprisonment for not more than 5 years, or both. The social services worker will prepare a written report detailing the information considered to be false and submit the report to the Superintendent or his/her designated representative for appropriate investigative action.

            Subpart G—Hearings and Appeals

              § 20.700
              Can an applicant or recipient appeal the decision of a Bureau official?
              Yes, if you are an applicant or recipient, and are dissatisfied with a Bureau decision made under this part, you can request a hearing before the Superintendent or his/her designated representative. You must submit your request by the deadline in § 20.604. The Superintendent or his/her designated representative can extend the deadline if you show good cause.

              § 20.701
              Does a recipient receive financial assistance while an appeal is pending?
              Yes, if you appeal under this subpart, financial assistance will be continued or reinstated to insure there is no break in financial assistance until the Superintendent or his/her designated representative makes a decision. The Superintendent or his/her designated representative can adjust payments or recover overpayments to conform with his/her decision.
              [65 FR 63159, Oct. 20, 2000; 65 FR 76563, Dec. 7, 2000]

              § 20.702
              When is an appeal hearing scheduled?
              The Superintendent or his/her designated representative must set a date for the hearing within 10 days of the date of request for a hearing and give written notice to the applicant or recipient.

              § 20.703
              What must the written notice of hearing include?
              The written notice of hearing must include:
              (a) The date, time and location of the hearing;
              (b) A statement of the facts and issues giving rise to the appeal;
              (c) The applicant's or recipient's right to be heard in person, or to be represented by an authorized representative at no expense to the Bureau;
              (d) The applicant or recipient's right to present both oral and written evidence during the hearing;
              (e) The applicant's or recipient's right to confront and cross-examine witnesses at the hearing;
              (f) The applicant's or recipient's right of one continuance of not more than 10 days with respect to the date of hearing; and
              (g) The applicant's or recipient's right to examine and copy, at a reasonable time before the hearing, his/her case record as it relates to the proposed action being contested.

              § 20.704
              Who conducts the hearing or appeal of a Bureau decision or action and what is the process?

              (a) The Superintendent or his/her designated representative conducts the hearing in an informal but orderly manner, records the hearing, and provides the applicant or recipient with a transcript of the hearing upon request.

              (b) The Superintendent or his/her designated representative must render a written decision within 10 days of the completion of the hearing. The written decision must include:
              (1) A written statement covering the evidence relied upon and reasons for the decision; and
              (2) The applicant's or recipient's right to appeal the Superintendent or his/her designated representative's decision pursuant to 25 CFR part 2 and request Bureau assistance in preparation of the appeal.

              § 20.705
              Can an applicant or recipient appeal a tribal decision?
              Yes, the applicant or recipient must pursue the appeal process applicable to the Public Law 93-638 contract, Public Law 102-477 grant, or Public Law 103-413 self-governance annual funding agreement. If no appeal process exists, then the applicant or recipient must pursue the appeal through the appropriate tribal forum.

          Pt. 23
          PART 23—INDIAN CHILD WELFARE ACT

              Subpart A—Purpose, Definitions, and Policy
              Sec.
              23.1
              Purpose.
              23.2
              Definitions.
              23.3
              Policy.
              23.4
              Information collection.

              Subpart B—Notice of Involuntary Child Custody Proceedings and Payment for Appointed Counsel in State Courts
              23.11
              Notice.
              23.12
              Designated tribal agent for service of notice.
              23.13
              Payment for appointed counsel in involuntary Indian child custody proceedings in state courts.

              Subpart C—Grants to Indian Tribes for Title II Indian Child and Family Service Programs
              23.21
              Noncompetitive tribal government grants.
              23.22
              Purpose of tribal government grants.
              23.23
              Tribal government application contents.

              Subpart D—Grants to Off-Reservation Indian Organizations for Title II Indian Child and Family Service Programs
              23.31
              Competitive off-reservation grant process.
              23.32
              Purpose of off-reservation grants.
              23.33
              Competitive off-reservation application contents and application selection criteria.
              23.34
              Review and decision on off-reservation applications by Regional Director.
              23.35
              Deadline for Central Office action.

              Subpart E—General and Uniform Grant Administration Provisions and Requirements
              23.41
              Uniform grant administration provisions, requirements and applicability.
              23.42
              Technical assistance.
              23.43
              Authority for grant approval and execution.
              23.44
              Grant administration and monitoring.
              23.45
              Subgrants.
              23.46
              Financial management, internal and external controls and other assurances.
              23.47
              Reports and availability of information to Indians.
              23.48
              Matching shares and agreements.
              23.49
              Fair and uniform provision of services.
              23.50
              Service eligibility.
              23.51
              Grant carry-over authority.
              23.52
              Grant suspension.
              23.53
              Cancellation.

              Subpart F—Appeals
              23.61
              Appeals from decision or action by Agency Superintendent, Regional Director or Grants Officer.
              23.62
              Appeals from decision or action by Regional Director under subpart D.
              23.63
              Appeals from inaction of official.

              Subpart G—Administrative Provisions
              23.71
              Recordkeeping and information availability.

              Subpart H—Assistance to State Courts
              23.81
              Assistance in identifying witnesses.
              23.82
              Assistance in identifying language interpreters.
              23.83
              Assistance in locating biological parents of Indian child after termination of adoption.

              Subpart I—Indian Child Welfare Act Proceedings

                General Provisions
                23.101
                What is the purpose of this subpart?
                23.102
                What terms do I need to know?

                23.103
                When does ICWA apply?
                23.104
                What provisions of this subpart apply to each type of child-custody proceeding?
                23.105
                How do I contact a Tribe under the regulations in this subpart?
                23.106
                How does this subpart interact with State and Federal laws?

                Pretrial Requirements
                23.107
                How should a State court determine if there is reason to know the child is an Indian child?
                23.108
                Who makes the determination as to whether a child is a member, whether a child is eligible for membership, or whether a biological parent is a member of a Tribe?
                23.109
                How should a State court determine an Indian child's Tribe when the child may be a member or eligible for membership in more than one Tribe?
                23.110
                When must a State court dismiss an action?
                23.111
                What are the notice requirements for a child-custody proceeding involving an Indian child?
                23.112
                What time limits and extensions apply?
                23.113
                What are the standards for emergency proceedings involving an Indian child?
                23.114
                What are the requirements for determining improper removal?

                Petitions To Transfer to Tribal Court
                23.115
                How are petitions for transfer of a proceeding made?
                23.116
                What happens after a petition for transfer is made?
                23.117
                What are the criteria for ruling on transfer petitions?
                23.118
                How is a determination of “good cause” to deny transfer made?
                23.119
                What happens after a petition for transfer is granted?

                Adjudication of Involuntary Proceedings
                23.120
                How does the State court ensure that active efforts have been made?
                23.121
                What are the applicable standards of evidence?
                23.122
                Who may serve as a qualified expert witness?
                23.123
                [Reserved]

                Voluntary Proceedings
                23.124
                What actions must a State court undertake in voluntary proceedings?
                23.125
                How is consent obtained?
                23.126
                What information must a consent document contain?
                23.127
                How is withdrawal of consent to a foster-care placement achieved?
                23.128
                How is withdrawal of consent to a termination of parental rights or adoption achieved?

                Dispositions
                23.129
                When do the placement preferences apply?
                23.130
                What placement preferences apply in adoptive placements?
                23.131
                What placement preferences apply in foster-care or preadoptive placements?
                23.132
                How is a determination of “good cause” to depart from the placement preferences made?

                Access
                23.133
                Should courts allow participation by alternative methods?
                23.134
                Who has access to reports and records during a proceeding?
                23.135
                [Reserved]

                Post-Trial Rights & Responsibilities
                23.136
                What are the requirements for vacating an adoption based on consent having been obtained through fraud or duress?
                23.137
                Who can petition to invalidate an action for certain ICWA violations?
                23.138
                What are the rights to information about adoptees' Tribal affiliations?
                23.139
                Must notice be given of a change in an adopted Indian child's status?

                Recordkeeping
                23.140
                What information must States furnish to the Bureau of Indian Affairs?
                23.141
                What records must the State maintain?
                23.142
                How does the Paperwork Reduction Act affect this subpart?

                Effective Date
                23.143
                How does this subpart apply to pending proceedings?

                Severability
                23.144
                What happens if some portion of this part is held to be invalid by a court of competent jurisdiction?

            Authority:
            5 U.S.C. 301; 25 U.S.C. 2, 9, 1901-1952.

            Source:
            59 FR 2256, Jan. 13, 1994, unless otherwise noted.

            Editorial Note:
            Nomenclature changes to part 23 appear at 79 FR 27190, May 13, 2014.

            Subpart A—Purpose, Definitions, and Policy

              § 23.1
              Purpose.

              The purpose of the regulations in this part is to govern the provision of funding for, and the administration of Indian child and family service programs as authorized by the Indian Child Welfare Act of 1978 (Pub. L. 95-608, 92 Stat. 3069, 25 U.S.C. 2, 9, 1901-1952).

              § 23.2
              Definitions.

                Act means the Indian Child Welfare Act (ICWA), Pub. L. 95-608, 92 Stat. 3069, 25 U.S.C. 1901 et seq.

                Active efforts means affirmative, active, thorough, and timely efforts intended primarily to maintain or reunite an Indian child with his or her family. Where an agency is involved in the child-custody proceeding, active efforts must involve assisting the parent or parents or Indian custodian through the steps of a case plan and with accessing or developing the resources necessary to satisfy the case plan. To the maximum extent possible, active efforts should be provided in a manner consistent with the prevailing social and cultural conditions and way of life of the Indian child's Tribe and should be conducted in partnership with the Indian child and the Indian child's parents, extended family members, Indian custodians, and Tribe. Active efforts are to be tailored to the facts and circumstances of the case and may include, for example:
              (1) Conducting a comprehensive assessment of the circumstances of the Indian child's family, with a focus on safe reunification as the most desirable goal;
              (2) Identifying appropriate services and helping the parents to overcome barriers, including actively assisting the parents in obtaining such services;
              (3) Identifying, notifying, and inviting representatives of the Indian child's Tribe to participate in providing support and services to the Indian child's family and in family team meetings, permanency planning, and resolution of placement issues;
              (4) Conducting or causing to be conducted a diligent search for the Indian child's extended family members, and contacting and consulting with extended family members to provide family structure and support for the Indian child and the Indian child's parents;
              (5) Offering and employing all available and culturally appropriate family preservation strategies and facilitating the use of remedial and rehabilitative services provided by the child's Tribe;
              (6) Taking steps to keep siblings together whenever possible;
              (7) Supporting regular visits with parents or Indian custodians in the most natural setting possible as well as trial home visits of the Indian child during any period of removal, consistent with the need to ensure the health, safety, and welfare of the child;
              (8) Identifying community resources including housing, financial, transportation, mental health, substance abuse, and peer support services and actively assisting the Indian child's parents or, when appropriate, the child's family, in utilizing and accessing those resources;
              (9) Monitoring progress and participation in services;
              (10) Considering alternative ways to address the needs of the Indian child's parents and, where appropriate, the family, if the optimum services do not exist or are not available;
              (11) Providing post-reunification services and monitoring.

                Assistant Secretary means the Assistant Secretary—Indian Affairs, the Department of the Interior.

                Bureau of Indian Affairs (BIA) means the Bureau of Indian Affairs, the Department of the Interior.

                Child-custody proceeding. (1) “Child-custody proceeding” means and includes any action, other than an emergency proceeding, that may culminate in one of the following outcomes:
              (i) Foster-care placement, which is any action removing an Indian child from his or her parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated;
              (ii) Termination of parental rights, which is any action resulting in the termination of the parent-child relationship;
              (iii) Preadoptive placement, which is the temporary placement of an Indian child in a foster home or institution after the termination of parental rights, but prior to or in lieu of adoptive placement; or
              (iv) Adoptive placement, which is the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption.
              (2) An action that may culminate in one of these four outcomes is considered a separate child-custody proceeding from an action that may culminate in a different one of these four outcomes. There may be several child-custody proceedings involving any given Indian child. Within each child-custody proceeding, there may be several hearings. If a child is placed in foster care or another out-of-home placement as a result of a status offense, that status offense proceeding is a child-custody proceeding.

                Consortium means an association or partnership of two or more eligible applicants who enter into an agreement to administer a grant program and to provide services under the grant to Indian residents in a specific geographical area when it is administratively feasible to provide an adequate level of services within the area.

                Continued custody means physical custody or legal custody or both, under any applicable Tribal law or Tribal custom or State law, that a parent or Indian custodian already has or had at any point in the past. The biological mother of a child has had custody of a child.

                Custody means physical custody or legal custody or both, under any applicable Tribal law or Tribal custom or State law. A party may demonstrate the existence of custody by looking to Tribal law or Tribal custom or State law.

                Domicile means:
              (1) For a parent or Indian custodian, the place at which a person has been physically present and that the person regards as home; a person's true, fixed, principal, and permanent home, to which that person intends to return and remain indefinitely even though the person may be currently residing elsewhere.
              (2) For an Indian child, the domicile of the Indian child's parents or Indian custodian or guardian. In the case of an Indian child whose parents are not married to each other, the domicile of the Indian child's custodial parent.

                Emergency proceeding means and includes any court action that involves an emergency removal or emergency placement of an Indian child.

                Extended family member is defined by the law or custom of the Indian child's Tribe or, in the absence of such law or custom, is a person who has reached age 18 and who is the Indian child's grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent.

                Grant means a written agreement between the BIA and the governing body of an Indian tribe or Indian organization wherein the BIA provides funds to the grantee to plan, conduct or administer specific programs, services, or activities and where the administrative and programmatic provisions are specifically delineated.

                Grantee means the tribal governing body of an Indian tribe or Board of Directors of an Indian organization responsible for grant administration.

                Grants officer means an officially designated officer who administers ICWA grants awarded by the Bureau of Indian Affairs, the Department of the Interior.

                Hearing means a judicial session held for the purpose of deciding issues of fact, of law, or both.

                Indian means any person who is a member of an Indian tribe, or who is an Alaska Native and a member of a Regional Corporation as defined in section 7 of the Alaska Native Claims Settlement Act, 43 U.S.C. 1606.

                Indian child means any unmarried person who is under age 18 and either:
              (1) Is a member or citizen of an Indian Tribe; or
              (2) Is eligible for membership or citizenship in an Indian Tribe and is the biological child of a member/citizen of an Indian Tribe.

                Indian child's Tribe means:
              (1) The Indian Tribe in which an Indian child is a member or eligible for membership; or
              (2) In the case of an Indian child who is a member of or eligible for membership in more than one Tribe, the Indian Tribe described in § 23.109.

                Indian custodian means any Indian who has legal custody of an Indian child under applicable Tribal law or custom or under applicable State law, or to whom temporary physical care, custody, and control has been transferred by the parent of such child. An Indian may demonstrate that he or she is an Indian custodian by looking to Tribal law or Tribal custom or State law.

                Indian foster home means a foster home where one or more of the licensed or approved foster parents is an “Indian” as defined in 25 U.S.C. 1903(3).

                Indian organization, solely for purposes of eligibility for grants under subpart D of this part, means any legally established group, association, partnership, corporation, or other legal entity which is owned or controlled by Indians, or a majority (51 percent or more) of whose members are Indians.

                Indian preference means preference and opportunities for employment and training provided to Indians in the administration of grants in accordance with section 7 (b) of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450).

                Indian tribe means any Indian tribe, band, nation, or other organized group or community of Indians federally recognized as eligible for the services provided to Indians by the Secretary because of their status as Indians, including any Alaska Native village as defined in section 3 (c) of the Alaska Native Claims Settlement Act, 43 U.S.C. 1602 (c).

                Involuntary proceeding means a child-custody proceeding in which the parent does not consent of his or her free will to the foster-care, preadoptive, or adoptive placement or termination of parental rights or in which the parent consents to the foster-care, preadoptive, or adoptive placement under threat of removal of the child by a State court or agency.

                Off-reservation ICWA program means an ICWA program administered in accordance with 25 U.S.C. 1932 by an off-reservation Indian organization.

                Parent or parents means any biological parent or parents of an Indian child, or any Indian who has lawfully adopted an Indian child, including adoptions under Tribal law or custom. It does not include an unwed biological father where paternity has not been acknowledged or established.

                Reservation means Indian country as defined in 18 U.S.C 1151 and any lands, not covered under that section, title to which is held by the United States in trust for the benefit of any Indian Tribe or individual or held by any Indian Tribe or individual subject to a restriction by the United States against alienation.

                Secretary means the Secretary of the Interior or the Secretary's authorized representative acting under delegated authority.

                Service areas solely for newly recognized or restored Indian tribes without established reservations means those service areas congressionally established by Federal law to be the equivalent of a reservation for the purpose of determining the eligibility of a newly recognized or restored Indian tribe and its members for all Federal services and benefits.

                State court means any agent or agency of a state, including the District of Columbia or any territory or possession of the United States, or any political subdivision empowered by law to terminate parental rights or to make foster care placements, preadoptive placements, or adoptive placements.

                Status offenses mean offenses that would not be considered criminal if committed by an adult; they are acts prohibited only because of a person's status as a minor (e.g., truancy, incorrigibility).

                Subgrant means a secondary grant that undertakes part of the obligations of the primary grant, and assumes the legal and financial responsibility for the funds awarded and for the performance of the grant-supported activity.

                Technical assistance means the provision of oral, written, or other relevant information and assistance to prospective grant applicants in the development of their grant proposals. Technical assistance may include a preliminary review of an application to assist the applicant in identifying the strengths and weaknesses of the proposal, ongoing program planning, design and evaluation, and such other program-specific assistance as is necessary for ongoing grant administration and management.

                Title II means title II of Public Law 95-608, the Indian Child Welfare Act of 1978, which authorizes the Secretary to make grants to Indian tribes and off-reservation Indian organizations for the establishment and operation of Indian child and family service programs.

                Tribal court means a court with jurisdiction over child-custody proceedings and which is either a Court of Indian Offenses, a court established and operated under the code or custom of an Indian Tribe, or any other administrative body of a Tribe vested with authority over child-custody proceedings.

                Tribal government means the federally recognized governing body of an Indian tribe.

                Upon demand means that the parent or Indian custodian can regain custody simply upon verbal request, without any formalities or contingencies.

                Value means face, par, or market value, or cost price, either wholesale or retail, whichever is greater.

                Voluntary proceeding means a child-custody proceeding that is not an involuntary proceeding, such as a proceeding for foster-care, preadoptive, or adoptive placement that either parent, both parents, or the Indian custodian has, of his or her or their free will, without a threat of removal by a State agency, consented to for the Indian child, or a proceeding for voluntary termination of parental rights.
              [59 FR 2256, Jan. 13, 1994, as amended at 81 FR 38864, June 14, 2016]

              § 23.3
              Policy.
              In enacting the Indian Child Welfare Act of 1978, Pub. L. 95-608, the Congress has declared that it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and Indian families by the establishment of minimum Federal standards to prevent the arbitrary removal of Indian children from their families and tribes and to ensure that measures which prevent the breakup of Indian families are followed in child custody proceedings (25 U.S.C. 1902). Indian child and family service programs receiving title II funds and operated by federally recognized Indian tribes and off-reservation Indian organizations shall reflect the unique values of Indian culture and promote the stability and security of Indian children, Indian families and Indian communities. It is the policy of the Bureau of Indian Affairs to emphasize and facilitate the comprehensive design, development and implementation of Indian child and family service programs in coordination with other Federal, state, local, and tribal programs which strengthen and preserve Indian families and Indian tribes.

              § 23.4
              Information collection.

              (a) The information collection requirements contained in § 23.13 of this part have been approved by the Office of Management and Budget (OMB) under 44 U.S.C. 3501 et seq., and assigned clearance number 1076-0111.
              (1) This information will be used to determine eligibility for payment of legal fees for indigent Indian parents and Indian custodians, involved in involuntary Indian child custody proceedings in state courts, who are not eligible for legal services through other mechanisms. Response to this request is required to obtain a benefit.
              (2) Public reporting for this information collection is estimated to average 10 hours per response, including the time for reviewing instructions, gathering and maintaining data, and completing and reviewing the information collection. Direct comments regarding the burden estimate or any aspect of this information collection should be mailed or hand-delivered to the Bureau of Indian Affairs, Information Collection Clearance Officer, Room 336-SIB, 1849 C Street, NW., Washington, DC 20240; and the Office of Information and Regulatory Affairs Paperwork Reduction Project—1076-0111, Office of Management and Budget, Washington, DC 20503.

              (b) The information collection requirements contained in §§ 23.21; 23.31; 23.46; 23.47, and 23.71 have been approved by the Office of Management and Budget under 44 U.S.C. 3501 et seq. and assigned clearance number 1076-0131. The information collection requirements under §§ 23.21 and 23.31 are collected in the form of ICWA grant applications from Indian tribes and off-reservation Indian organizations. A response to this request is required to obtain grant funds. The information collection requirements under § 23.46 are collected in compliance with applicable OMB circulars on financial management, internal and external controls and other fiscal assurances in accordance with existing Federal grant administration and reporting requirements. The grantee information collection requirements under § 23.47 are collected in the form of quarterly and annual program performance narrative reports and statistical data as required by the grant award document. Pursuant to 25 U.S.C. 1951, the information collection requirement under § 23.71 is collected from state courts entering final adoption decrees for any Indian child and is provided to and maintained by the Secretary.
              (1) Public reporting for the information collection at §§ 23.21 and 23.31 is estimated to average 32 hours per response, including the time for reviewing the grant application instructions, gathering the necessary information and data, and completing the grant application. Public reporting for the information collection at §§ 23.46 and 23.47 is estimated to average a combined total of 16 annual hours per grantee, including the time for gathering the necessary information and data, and completing the required forms and reports. Public reporting for the information collection at § 23.71 is estimated to average 4 hours per response, including the time for obtaining and preparing the final adoption decree for transmittal to the Secretary.
              (2) Direct comments regarding any of these burden estimates or any aspect of these information collection requirements should be mailed or hand-delivered to the Bureau of Indian Affairs, Information Collection Clearance Officer, room 336-SIB, 1849 C Street, NW., Washington, DC, 20240; and the Office of Information and Regulatory Affairs Paperwork Reduction Project—1076-0131, Office of Management and Budget, Washington, DC 20503.

            Subpart B—Notice of Involuntary Child Custody Proceedings and Payment for Appointed Counsel in State Courts

              § 23.11
              Notice.
              (a) In any involuntary proceeding in a State court where the court knows or has reason to know that an Indian child is involved, and where the identity and location of the child's parent or Indian custodian or Tribe is known, the party seeking the foster-care placement of, or termination of parental rights to, an Indian child must directly notify the parents, the Indian custodians, and the child's Tribe by registered or certified mail with return receipt requested, of the pending child-custody proceedings and their right of intervention. Notice must include the requisite information identified in § 23.111, consistent with the confidentiality requirement in § 23.111(d)(6)(ix). Copies of these notices must be sent to the appropriate Regional Director listed in paragraphs (b)(1) through (12) of this section by registered or certified mail with return receipt requested or by personal delivery and must include the information required by § 23.111.
              (b)(1) For child-custody proceedings in Alabama, Connecticut, Delaware, District of Columbia, Florida, Georgia, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Mississippi, New Hampshire, New Jersey, New York, North Carolina, Pennsylvania, Rhode Island, South Carolina, Tennessee, Vermont, Virginia, West Virginia, or any territory or possession of the United States, notices must be sent to the following address: Eastern Regional Director, Bureau of Indian Affairs, 545 Marriott Drive, Suite 700, Nashville, Tennessee 37214.
              (2) For child-custody proceedings in Illinois, Indiana, Iowa, Michigan, Minnesota, Ohio, or Wisconsin, notices must be sent to the following address: Minneapolis Regional Director, Bureau of Indian Affairs, 5600 American Blvd. W, Ste. 500, Bloomington, MN 55437.
              (3) For child-custody proceedings in Nebraska, North Dakota, or South Dakota, notices must be sent to the following address: Aberdeen Regional Director, Bureau of Indian Affairs, 115 Fourth Avenue SE., Aberdeen, South Dakota 57401.

              (4) For child-custody proceedings in Kansas, Texas (except for notices to the Ysleta del Sur Pueblo of El Paso County, Texas), or the western Oklahoma counties of Alfalfa, Beaver, Beckman, Blaine, Caddo, Canadian, Cimarron, Cleveland, Comanche, Cotton, Custer, Dewey, Ellis, Garfield, Grant, Greer, Harmon, Harper, Jackson, Kay, Kingfisher, Kiowa, Lincoln, Logan, Major, Noble, Oklahoma, Pawnee, Payne, Pottawatomie, Roger Mills, Texas, Tillman, Washita, Woods or Woodward, notices must be sent to the following address: Anadarko Regional Director, Bureau of Indian Affairs, P.O. Box 368, Anadarko, Oklahoma 73005. Notices to the Ysleta del Sur Pueblo must be sent to the Albuquerque Regional Director at the address listed in paragraph (b)(6) of this section.
              (5) For child-custody proceedings in Wyoming or Montana (except for notices to the Confederated Salish and Kootenai Tribes of the Flathead Reservation, Montana), notices must be sent to the following address: Billings Regional Director, Bureau of Indian Affairs, 316 N. 26th Street, Billings, Montana 59101. Notices to the Confederated Salish and Kootenai Tribes of the Flathead Reservation, Montana, must be sent to the Portland Regional Director at the address listed in paragraph (b)(11) of this section.
              (6) For child-custody proceedings in the Texas counties of El Paso and Hudspeth or in Colorado or New Mexico (exclusive of notices to the Navajo Nation from the New Mexico counties listed in paragraph (b)(9) of this section), notices must be sent to the following address: Albuquerque Regional Director, Bureau of Indian Affairs, 615 First Street, P.O. Box 26567, Albuquerque, New Mexico 87125. Notices to the Navajo Nation must be sent to the Navajo Regional Director at the address listed in paragraph (b)(9) of this section.
              (7) For child-custody proceedings in Alaska (except for notices to the Metlakatla Indian Community, Annette Island Reserve, Alaska), notices must be sent to the following address: Alaska Regional Director—Attn: Human Services, Bureau of Indian Affairs, 3601 C Street, Suite 1258, Anchorage, Alaska 99503. Notices to the Metlakatla Indian Community, Annette Island Reserve, Alaska, must be sent to the Portland Regional Director at the address listed in paragraph (b)(11) of this section.
              (8) For child-custody proceedings in Arkansas, Missouri, or the eastern Oklahoma counties of Adair, Atoka, Bryan, Carter, Cherokee, Craig, Creek, Choctaw, Coal, Delaware, Garvin, Grady, Haskell, Hughes, Jefferson, Johnson, Latimer, LeFlore, Love, Mayes, McCurtain, McClain, McIntosh, Murray, Muskogee, Nowata, Okfuskee, Okmulgee, Osage, Ottawa, Pittsburg, Pontotoc, Pushmataha, Marshall, Rogers, Seminole, Sequoyah, Stephens, Tulsa, Wagoner, or Washington, notices must be sent to the following address: Muskogee Regional Director, Bureau of Indian Affairs, 101 North Fifth Street, Muskogee, Oklahoma 74401.
              (9) For child-custody proceedings in the Arizona counties of Apache, Coconino (except for notices to the Hopi Tribe of Arizona and the San Juan Southern Paiute Tribe of Arizona) or Navajo (except for notices to the Hopi Tribe of Arizona); the New Mexico counties of McKinley (except for notices to the Zuni Tribe of the Zuni Reservation), San Juan, or Socorro; or the Utah county of San Juan, notices must be sent to the following address: Navajo Regional Director, Bureau of Indian Affairs, P.O. Box 1060, Gallup, New Mexico 87301. Notices to the Hopi and San Juan Southern Paiute Tribes of Arizona must be sent to the Phoenix Regional Director at the address listed in paragraph (b)(10) of this section. Notices to the Zuni Tribe of the Zuni Reservation must be sent to the Albuquerque Regional Director at the address listed in paragraph (b)(6 of this section).
              (10) For child-custody proceedings in Arizona (exclusive of notices to the Navajo Nation from those counties listed in paragraph (b)(9) of this section), Nevada, or Utah (exclusive of San Juan County), notices must be sent to the following address: Phoenix Regional Director, Bureau of Indian Affairs, 1 North First Street, P.O. Box 10, Phoenix, Arizona 85001.

              (11) For child-custody proceedings in Idaho, Oregon, or Washington, notices must be sent to the following address: Portland Regional Director, Bureau of Indian Affairs, 911 NE 11th Avenue, Portland, Oregon 97232. All notices to the Confederated Salish and Kootenai Tribes of the Flathead Reservation, located in the Montana counties of Flathead, Lake, Missoula, and Sanders, must also be sent to the Portland Regional Director.

              (12) For child-custody proceedings in California or Hawaii, notices must be sent to the following address: Sacramento Regional Director, Bureau of Indian Affairs, Federal Office Building, 2800 Cottage Way, Sacramento, California 95825.
              (c) Upon receipt of the notice, the Secretary will make reasonable documented efforts to locate and notify the child's Tribe and the child's parent or Indian custodian. The Secretary will have 15 days, after receipt of the notice, to notify the child's Tribe and parents or Indian custodians and to send a copy of the notice to the court. If within the 15-day period the Secretary is unable to verify that the child meets the criteria of an Indian child as defined in § 23.2, or is unable to locate the parents or Indian custodians, the Secretary will so inform the court and state how much more time, if any, will be needed to complete the verification or the search. The Secretary will complete all research efforts, even if those efforts cannot be completed before the child-custody proceeding begins.
              (d) Upon request from a party to an Indian child-custody proceeding, the Secretary will make a reasonable attempt to identify and locate the child's Tribe, parents, or Indian custodians to assist the party seeking the information.
              [81 FR 38866, June 14, 2016, as amended at 83 FR 55268, Nov. 5, 2018]

              § 23.12
              Designated tribal agent for service of notice.

              Any Indian tribe entitled to notice pursuant to 25 U.S.C. 1912 may designate by resolution, or by such other form as the tribe's constitution or current practice requires, an agent for service of notice other than the tribal chairman and send a copy of the designation to the Secretary or his/her designee. The Secretary or his/her designee shall update and publish as necessary the names and addresses of the designated agents in the Federal Register. A current listing of such agents shall be available through the area offices.

              § 23.13
              Payment for appointed counsel in involuntary Indian child custody proceedings in state courts.
              (a) When a state court appoints counsel for an indigent Indian party in an involuntary Indian child custody proceeding for which the appointment of counsel is not authorized under state law, the court shall send written notice of the appointment to the BIA Regional Director designated for that state in § 23.11. The notice shall include the following:
              (1) Name, address, and telephone number of attorney who has been appointed.
              (2) Name and address of client for whom counsel is appointed.
              (3) Relationship of client to child.
              (4) Name of Indian child's tribe.
              (5) Copy of the petition or complaint.
              (6) Certification by the court that state law makes no provision for appointment of counsel in such proceedings.
              (7) Certification by the court that the Indian client is indigent.
              (b) The Regional Director shall certify that the client is eligible to have his or her appointed counsel compensated by the BIA unless:
              (1) The litigation does not involve a child custody proceeding as defined in 25 U.S.C. 1903 (1);
              (2) The child who is the subject of the litigation is not an Indian child as defined in 25 U.S.C. 1903 (4);
              (3) The client is neither the Indian child who is the subject of the litigation, the Indian child's parent as defined in 25 U.S.C. 1903 (9), nor the child's Indian custodian as defined in 25 U.S.C. 1903 (6);
              (4) State law provides for appointment of counsel in such proceedings;
              (5) The notice to the Regional Director of appointment of counsel is incomplete; or
              (6) Funds are not available for the particular fiscal year.

              (c) No later than 10 days after receipt of the notice of appointment of counsel, the Regional Director shall notify the court, the client, and the attorney in writing whether the client has been certified as eligible to have his or her attorney fees and expenses paid by the BIA. If certification is denied, the notice shall include written reasons for that decision, together with a statement that complies with 25 CFR 2.7 and that informs the applicant that the decision may be appealed to the Assistant Secretary. The Assistant Secretary shall consider appeals under this subsection in accordance with 25 CFR 2.20 (c) through (e). Appeal procedures shall be as set out in part 2 of this chapter.
              (d) When determining attorney fees and expenses, the court shall:
              (1) Determine the amount of payment due appointed counsel by the same procedures and criteria it uses in determining the fees and expenses to be paid appointed counsel in state juvenile delinquency proceedings; and
              (2) Submit approved vouchers to the Regional Director who certified eligibility for BIA payment, together with the court's certification that the amount requested is reasonable under the state standards considering the work actually performed in light of criteria that apply in determining fees and expenses for appointed counsel in state juvenile delinquency proceedings.
              (e) The Regional Director shall authorize the payment of attorney fees and expenses in the amount requested in the voucher approved by the court unless:
              (1) The amount of payment due the state-appointed counsel is inconsistent with the fees and expenses specified in § 23.13 (d)(1); or
              (2) The client has not been certified previously as eligible under paragraph (c) of this section; or
              (3) The voucher is submitted later than 90 days after completion of the legal action involving a client certified as eligible for payment of legal fees under paragraph (b) of this section.
              (f) No later than 15 days after receipt of a payment voucher, the Regional Director shall send written notice to the court, the client, and the attorney stating the amount of payment, if any, that has been authorized. If the payment has been denied, or the amount authorized is less than the amount requested in the voucher approved by the court, the notice shall include a written statement of the reasons for the decision together with a statement that complies with 25 CFR 2.7 and that informs the client that the decision may be appealed to the Interior Board of Indian Appeals in accordance with 25 CFR 2.4 (e); 43 CFR 4.310 through 4.318 and 43 CFR 4.330 through 4.340.
              (g) Failure of the Regional Director to meet the deadline specified in paragraphs (c) and (f) of this section may be treated as a denial for purposes of appeal under paragraph (f) of this section.
              (h) Payment for appointed counsel does not extend to Indian tribes involved in state court child custody proceedings or to Indian families involved in Indian child custody proceedings in tribal courts.

            Subpart C—Grants to Indian Tribes for Title II Indian Child and Family Service Programs

              § 23.21
              Noncompetitive tribal government grants.
              (a) Grant application information and technical assistance. Information on grant application procedures and related information may be obtained from the appropriate Agency Superintendent or Regional Director. Pre-award and ongoing technical assistance to tribal governments shall be provided in accordance with § 23.42 of this part.
              (b) Eligibility requirements for tribal governments. The tribal government(s) of any Indian tribe or consortium of tribes may submit a properly documented application for a grant to the appropriate Agency Superintendent or Regional Director. A tribe may neither submit more than one application for a grant nor be the beneficiary of more than one grant under this subpart.
              (1) Through the publication of a Federal Register announcement at the outset of the implementation of the noncompetitive grant award process during which tribal applications will be solicited, the Assistant Secretary will notify eligible tribal applicants under this subpart of the amount of core funds available for their ICWA program. The funding levels will be based on the service area population to be served. Upon the receipt of this notice from the Agency Superintendent or appropriate Regional Director, tribal applicants shall submit a completed ICWA application no later than 60 days after the receipt of this notice.

              (2) A grant to be awarded under this subpart shall be limited to the tribal governing body(ies) of the tribe(s) to be served by the grant.
              (3) For purposes of eligibility for newly recognized or restored Indian tribes without established reservations, such tribes shall be deemed eligible to apply for grants under this subpart to provide ICWA services within those service areas legislatively identified for such tribes.
              (4) A grantee under this subpart may make a subgrant to another Indian tribe or an Indian organization subject to the provisions of § 23.45.
              (c) Revision or amendment of grants. A grantee under this subpart may submit a written request and justification for a post-award grant modification covering material changes to the terms and conditions of the grant, subject to the approval of the grants officer. The request shall include a narrative description of any significant additions, deletions, or changes to the approved program activities or budget in the form of a grant amendment proposal.
              (d) Continued annual funding of an ICWA grant under this subpart shall be contingent upon the fulfillment of the requirements delineated at § 23.23(c).
              (e) Monitoring and program reporting requirements for grantees under this subpart are delineated at §§ 23.44 and 23.47.

              § 23.22
              Purpose of tribal government grants.
              (a) Grants awarded under this subpart are for the establishment and operation of tribally designed Indian child and family service programs. The objective of every Indian child and family service program shall be to prevent the breakup of Indian families and to ensure that the permanent removal of an Indian child from the custody of his or her Indian parent or Indian custodian shall be a last resort. Such child and family service programs may include, but need not be limited to:
              (1) A system for licensing or otherwise regulating Indian foster and adoptive homes, such as establishing tribal standards for approval of on-reservation foster or adoptive homes;
              (2) The operation and maintenance of facilities for counseling and treatment of Indian families and for the temporary custody of Indian children with the goal of strengthening Indian families and preventing parent-child separations;
              (3) Family assistance, including homemaker and home counselors, protective day care and afterschool care, recreational activities, respite care, and employment support services with the goal of strengthening Indian families and contributing to family stability;
              (4) Home improvement programs with the primary emphasis on preventing the removal of children due to unsafe home environments by making homes safer, but not to make extensive structural home improvements;
              (5) The employment of professional and other trained personnel to assist the tribal court in the disposition of domestic relations and child welfare matters, but not to establish tribal court systems;
              (6) Education and training of Indians, including tribal court judges and staff, in skills relating to child and family assistance and service programs;
              (7) A subsidy program under which Indian adoptive children not eligible for state or BIA subsidy programs may be provided support comparable to that for which they could be eligible as foster children, taking into account the appropriate state standards of support for maintenance and medical needs;
              (8) Guidance, legal representation and advice to Indian families involved in tribal, state, or Federal child custody proceedings; and
              (9) Other programs designed to meet the intent and purposes of the Act.
              (b) Grants may be provided to tribes in the preparation and implementation of child welfare codes within their jurisdiction or pursuant to a tribal-state agreement.

              (c) Grantees under this subpart may enhance their capabilities by utilizing ICWA funds as non-Federal matching shares in connection with funds provided under titles IV-B, IV-E and XX of the Social Security Act or other Federal programs which contribute to and promote the intent and purposes of the Act through the provision of comprehensive child and family services in coordination with other tribal, Federal, state, and local resources available for the same purpose.

              (d) Program income resulting from the operation of programs under this subpart, such as day care operations, may be retained and used for purposes similar to those for which the grant was awarded.

              § 23.23
              Tribal government application contents.
              (a) The appropriate Regional Director shall, subject to the tribe's fulfillment of the mandatory application requirements and the availability of appropriated funds, make a grant to the tribal governing body of a tribe or consortium of tribes eligible to apply for a grant under this subpart.
              (b) The following mandatory tribal application requirements must be submitted to the appropriate Agency Superintendent or Regional Director in accordance with the timeframe established in § 23.21 (b) of this subpart:
              (1) A current tribal resolution requesting a grant by the Indian tribe(s) to be served by the grant. If an applicant is applying for a grant benefiting more than one tribe (consortium), an authorizing resolution from each tribal government to be served must be included. The request must be in the form of a current tribal resolution by the tribal governing body and shall include the following information:
              (i) The official name of tribe(s) applying for the grant and who will directly benefit from or receive services from the grant;
              (ii) The proposed beginning and ending dates of the grant;
              (iii) A provision stating that the resolution will remain in effect for the duration of the program or until the resolution expires or is rescinded; and
              (iv) The signature of the authorized representative of the tribal government and the date thereof.
              (2) A completed Application for Federal Assistance form, SF-424.
              (3) A narrative needs assessment of the social problems or issues affecting the resident Indian population to be served; the geographic area(s) to be served; and estimated number of resident Indian families and/or persons to receive benefits or services from the program.
              (4) A comprehensive developmental multi-year plan in narrative form describing what specific services and/or activities will be provided each program year and addressing the above-identified social problems or issues. At a minimum, the plan must include:
              (i) The program goals and objectives, stated in measurable terms, to be achieved through the grant;
              (ii) A narrative description of how Indian families and communities will benefit from the program; and
              (iii) The methodology, including culturally defined approaches, and procedures by which the tribe(s) will accomplish the identified goals and objectives.
              (5) An internal monitoring system to measure progress and accomplishments, and to assure that the quality and quantity of actual performance conforms to the requirements of the grant.
              (6) A staffing plan that is consistent with the implementation of the above-described program plan of operation and the procedures necessary for the successful delivery of services.
              (i) The plan must include proposed key personnel; their qualifications, training or experience relevant to the services to be provided; responsibilities; Indian preference criteria for employment; and position descriptions.
              (ii) In accordance with 25 U.S.C. 3201 et seq. (Pub. L. 101-630), title IV, the Indian Child Protection and Family Violence Prevention Act, grantees shall conduct character and background investigations of those personnel identified in that statute. Grantees must initiate character and background investigations of said personnel prior to their actual employment, and complete the investigations in a timely manner.
              (7) A program budget and budget narrative justification submitted on an annual basis for the amount of the award and supported by the proposed plan, appropriate program services and activities for the applicable grant year.

              (8) Identification of any consultants and/or subgrantees the applicant proposes to employ; a description of the consultant and/or subgrantee services to be rendered; the qualifications and experience in performing the identified services; and the basis for the cost and amount to be paid for such services.

              (9) A certification by a licensed accountant that the bookkeeping and accounting procedures which the tribe(s) uses or intends to use meet existing Federal standards for grant management and administration specified at § 23.46.
              (10) A system for managing property and recordkeeping which complies with subpart D of 43 CFR part 2 implementing the Privacy Act (5 U.S.C. 552a) and with existing Federal requirements for grants at 25 CFR 276.5 and 276.11, including the maintenance and safeguarding of direct service case records on families and/or individuals served by the grant.
              (11) A listing of equipment, facilities, and buildings necessary to carry out the grant program. Liability insurance coverage for buildings and their contents is recommended for grantees under this subpart.
              (12) Pursuant to the Drug-Free Workplace Act of 1988, tribal programs shall comply with the mandatory Drug-Free Workplace Certification, a regulatory requirement for Federal grant recipients.
              (c) Continued annual funding of an ICWA program under this subpart shall be contingent upon the existing grant program receiving a satisfactory program evaluation from the area social services office for the previous year of operation. A copy of this evaluation must be submitted together with an annual budget and budget narrative justification in accordance with paragraph (b)(7) of this section. Minimum standards for receiving a satisfactory evaluation shall include:
              (1) The timely submission of all fiscal and programmatic reports;
              (2) A narrative program report indicating work accomplished in accordance with the applicant's approved multi-year plan and, if applicable, a description of any modification in programs or activities to be funded in the next fiscal year; and
              (3) The implementation of mutually determined corrective action measures, if applicable.

            Subpart D—Grants to Off-Reservation Indian Organizations for Title II Indian Child and Family Service Programs

              § 23.31
              Competitive off-reservation grant process.
              (a) Grant application procedures and related information may be obtained from the Regional Director designated at § 23.11 for processing ICWA notices for the state in which the applicant is located. Pre-award and ongoing technical assistance of off-reservation Indian organization grantees shall be provided in accordance with § 23.42.

              (b) Prior to the beginning of or during the applicable year(s) in which grants for off-reservation programs will be awarded competitively, the Assistant Secretary—Indian Affairs shall publish in the Federal Register an announcement of the grant application process for the year(s), including program priorities or special considerations (if any), applicant eligibility criteria, the required application contents, the amount of available funding and evaluation criteria for off-reservation programs.

              (c) Based on the announcement described in paragraph (b) of this section, an off-reservation applicant shall prepare a multi-year developmental application in accordance with § 23.33 of this subpart. To be considered in the area competitive review and scoring process, a complete application must be received by the deadline announced in the Federal Register by the Regional Director designated at § 23.11 for processing ICWA notices for the state in which the applicant is located.
              (d) Eligibility requirements for off-reservation Indian organizations. The Secretary or his/her designee shall, contingent upon the availability of funds, make a multi-year grant under this subpart for an off-reservation program when officially requested by a resolution of the board of directors of the Indian organization applicant, upon the applicant's fulfillment of the mandatory application requirements and upon the applicant's successful competition pursuant to § 23.33 of this subpart.

              (e) A grant under this subpart for an off-reservation Indian organization shall be limited to the board of directors of the Indian organization which will administer the grant.
              (f) Continued annual funding of a multi-year grant award to an off-reservation ICWA program under this subpart shall be contingent upon the grantee's fulfillment of the requirements delineated at § 23.33 (e).
              (g) Monitoring and program reporting requirements for grants awarded to off-reservation Indian organizations under this subpart are delineated at §§ 23.44 and 23.47.

              § 23.32
              Purpose of off-reservation grants.
              The Secretary or his/her designee is authorized to make grants to off-reservation Indian organizations to establish and operate off-reservation Indian child and family service programs for the purpose of stabilizing Indian families and tribes, preventing the breakup of Indian families and, in particular, to ensure that the permanent removal of an Indian child from the custody of his/her Indian parent or Indian custodian shall be a last resort. Child and family service programs may include, but are not limited to:
              (a) A system for regulating, maintaining, and supporting Indian foster and adoptive homes, including a subsidy program under which Indian adoptive children may be provided support comparable to that for which they would be eligible as Indian foster children, taking into account the appropriate state standards of support for maintenance and medical needs;
              (b) The operation and maintenance of facilities and services for counseling and treatment of Indian families and Indian foster and adoptive children with the goal of strengthening and stabilizing Indian families;
              (c) Family assistance (including homemaker and home counselors), protective day care and afterschool care, employment support services, recreational activities, and respite care with the goal of strengthening Indian families and contributing toward family stability; and
              (d) Guidance, legal representation and advice to Indian families involved in state child custody proceedings.

              § 23.33
              Competitive off-reservation application contents and application selection criteria.

              (a) An application for a competitive multi-year grant under this subpart shall be submitted to the appropriate Regional Director prior to or on the announced deadline date published in the Federal Register. The Regional Director shall certify the application contents pursuant to § 23.34 and forward the application within five working days to the area review committee, composed of members designated by the Regional Director, for competitive review and action. Modifications and/or information received after the close of the application period, as announced in the Federal Register, shall not be reviewed or considered by the area review committee in the competitive process.
              (b) Mandatory application requirements for Indian organization applicants shall include:
              (1) An official request for an ICWA grant program from the organization's board of directors covering the duration of the proposed program;
              (2) A completed Application for Federal Assistance form, SF 424;
              (3) Written assurances that the organization meets the definition of Indian organization at § 23.2;
              (4) A copy of the organization's current Articles of Incorporation for the applicable grant years;
              (5) Proof of the organization's nonprofit status;
              (6) A copy of the organization's IRS tax exemption certificate and IRS employer identification number;
              (7) Proof of liability insurance for the applicable grant years; and
              (8) Current written assurances that the requirements of Circular A-128 for fiscal management, accounting, and recordkeeping are met.
              (9) Pursuant to the Drug-Free Workplace Act of 1988, all grantees under this subpart shall comply with the mandatory Drug-Free Workplace Certification, a regulatory requirement for Federal grant recipients.
              (c) Competitive application selection criteria. The Regional Director or his/her designated representative shall select those proposals which will in his/her judgment best promote the proposes of the Act. Selection shall be made through the area review committee process in which each application will be scored individually and ranked according to score, taking into consideration the mandatory requirements as specified above and the following selection criteria:
              (1) The degree to which the application reflects an understanding of the social problems or issues affecting the resident Indian client population which the applicant proposes to serve;
              (2) Whether the applicant presents a narrative needs assessment, quantitative data and demographics of the client Indian population to be served;
              (3) Estimates of the number of Indian people to receive benefits or services from the program based on available data;
              (4) Program goals and objectives to be achieved through the grant;
              (5) A comprehensive developmental multi-year narrative plan describing what specific services and/or activities will be provided each program year and addressing the above-identified social problems or issues. At a minimum, the plan must include a narrative description of the program; the program goals and objectives, stated in measurable terms, to be achieved through the grant; and the methodology, including culturally defined approaches, and procedures by which the grantee will accomplish the identified goals and objectives;
              (6) An internal monitoring system the grantee will use to measure progress and accomplishments, and to ensure that the quality and quantity of actual performance conforms to the requirements of the grant;
              (7) Documentation of the relative accessibility which the Indian population to be served under a specific proposal already has to existing child and family service programs emphasizing the prevention of Indian family breakups, such as mandatory state services. Factors to be considered in determining accessibility include:
              (i) Cultural barriers;
              (ii) Discrimination against Indians;
              (iii) Inability of potential Indian clientele to pay for services;
              (iv) Technical barriers created by existing public or private programs;
              (v) Availability of transportation to existing programs;
              (vi) Distance between the Indian community to be served under the proposal and the nearest existing programs;
              (vii) Quality of services provided to Indian clientele; and
              (viii) Relevance of services provided to specific needs of the Indian clientele.
              (8) If the proposed program duplicates existing Federal, state, or local child and family service programs emphasizing the prevention of Indian family breakups, proper and current documented evidence that repeated attempts to obtain services have been unsuccessful;
              (9) Evidence of substantial support from the Indian community or communities to be served, including but not limited to:
              (i) Tribal support evidenced by a tribal resolution or cooperative service agreements between the administrative bodies of the affected tribe(s) and the applicant for the duration of the grant period, or
              (ii) Letters of support from social services organizations familiar with the applicant's past work experience;

              (10) A staffing plan that is consistent with the implementation of the above-described program plan of operation and the procedures necessary for the successful delivery of services. The plan must include proposed key personnel, their qualifications, training or experience relevant to the services to be provided, responsibilities, Indian preference criteria for employment and position descriptions. In accordance with 25 U.S.C. 3201 et seq. (Pub. L. 101-630), title IV, the Indian Child Protection and Family Violence Prevention Act, grantees shall conduct character and background investigations of those personnel identified in that statute prior to their actual employment;
              (11) The reasonableness and relevance of the estimated overall costs of the proposed program or services and their overall relation to the organization's funding base, activities, and mission;

              (12) The degree to which the detailed annual budget and justification for the requested funds are consistent with, and clearly supported by, the proposed plan and by appropriate program services and activities for the applicable grant year;
              (13) The applicant's identification of any consultants and/or subgrantees it proposes to employ; description of the services to be rendered; the qualifications and experience of said personnel, reflecting the requirements for performing the identified services; and the basis for the cost and the amount to be paid for such services;
              (14) Certification by a licensed accountant that the bookkeeping and accounting procedures that the applicant uses or intends to use meet existing Federal standards for grant administration and management specified at § 23.46;
              (15) The compliance of property management and recordkeeping systems with subpart D of 43 CFR part 2 (the Privacy Act, 5 U.S.C. 552a), and with existing Federal requirements for grants at 25 CFR 276.5 and 276.11, including the maintenance and safeguarding of direct service case records on families and/or individuals served by the grant;
              (16) A description of the proposed facilities, equipment, and buildings necessary to carry out the grant activities; and
              (17) Proof of liability insurance coverage for the applicable grant year(s).

              (d) Two or more applications receiving the same competitive score will be prioritized in accordance with announcements made in the Federal Register pursuant to § 23.31 (b) for the applicable year(s).
              (e) Continued annual funding of a multi-year grant award to an off-reservation ICWA program under this subpart shall be contingent upon the availability of appropriated funds and upon the existing grant program receiving a satisfactory program evaluation from the area social services office for the previous year of operation. A copy of this evaluation shall be submitted together with an annual budget and budget narrative justification in accordance with paragraph (c)(10) of this section. Minimum standards for receiving a satisfactory evaluation shall include the timely submission of all fiscal and programmatic reports; a narrative program report indicating work accomplished in accordance with the initial approved multi-year plan; and the implementation of mutually determined corrective action measures, if applicable.

              § 23.34
              Review and decision on off-reservation applications by Regional Director.
              (a) Area office certification. Upon receipt of an application for a grant by an off-reservation Indian organization at the area office, the Regional Director shall:
              (1) Complete and sign the area office certification form. In completing the area certification form, the Regional Director shall assess and certify whether applications contain and meet all the application requirements specified at § 23.33. Regional Directors shall be responsible for the completion of the area office certification forms for all applications submitted by off-reservation Indian organizations.
              (2) Acknowledge receipt of the application to the applicant and advise the applicant of the disposition of the application within 10 days of receipt; and
              (3) Transmit all applications within five working days of receipt to the area review committee for competitive review and subsequent approval or disapproval of the applications.
              (b) Area office competitive review and decision for off-reservation applications. Upon receipt of an application for an off-reservation grant under this part requiring the approval of the Regional Director, the Regional Director shall:
              (1) Establish and convene an area review committee, chaired by a person qualified by knowledge, training and experience in the delivery of Indian child and family services.
              (2) Review the area office certification form required in paragraph (a) of this section.
              (3) Review the application in accordance with the competitive review procedures prescribed in § 23.33. An application shall not receive approval for funding under the area competitive review and scoring process unless a review of the application determines that it:

              (i) Contains all the information required in § 23.33 which must be received by the close of the application period. Modifications of the grant application received after the close of the application period shall not be considered in the competitive review process.

              (ii) Receives at least the established minimum score in an area competitive review, using the application selection criteria and scoring process set out in § 23.33. The minimum score shall be established by the Central Office prior to each application period and announced in the Federal Register for the applicable grants year(s).
              (4) Approve or disapprove the application and promptly notify the applicant in writing of the approval or disapproval of the application. If the application is disapproved, the Regional Director shall include in the written notice the specific reasons therefore.
              (c) The actual funding amounts for the initial grant year shall be subject to appropriations available nationwide and the continued funding of an approved off-reservation grant application under subpart D of this part shall be subject to available funds received by the respective area office for the applicable grant year. Initial funding decisions and subsequent decisions with respect to funding level amounts for all approved grant applications under this part shall be made by the Regional Director.

              § 23.35
              Deadline for Central Office action.
              Within 30 days of the receipt of grant reporting forms from the Regional Directors identifying approved and disapproved applications pursuant to subpart D of this part and recommended funding levels for approved applications, the Secretary or his/her designee shall process the Regional Directors' funding requests.

            Subpart E—General and Uniform Grant Administration Provisions and Requirements

              § 23.41
              Uniform grant administration provisions, requirements and applicability.
              The general and uniform grant administration provisions and requirements specified at 25 CFR part 276 and under this subpart are applicable to all grants awarded to tribal governments and off-reservation Indian organizations under this part, except to the extent inconsistent with an applicable Federal statute, regulation or OMB circular.

              § 23.42
              Technical assistance.
              (a) Pre-award and ongoing technical assistance may be requested by an Indian tribe or off-reservation Indian organization from the appropriate agency or area office to which the tribe or organization will be submitting an application for funds under subparts C and D of this part. A request for pre-award technical assistance by an off-reservation Indian organization must be received by the Regional Director designated at § 23.11 for the state in which the applicant is located no later than 10 days prior to the application deadline to assure sufficient time for area response.
              (b) Pre-award and ongoing technical assistance may be provided by the appropriate BIA agency or area office for purposes of program planning and design, assistance in establishing internal program monitoring and evaluation criteria for ongoing grant administration and management, and for other appropriate assistance requested.
              (c) The area social services staff shall provide technical assistance to grantees upon receipt of an authorized request from the grantee or when review of the grantee's quarterly performance reports shows that:
              (1) An ICWA program is yielding results that are or will be detrimental to the welfare of the intended Indian beneficiaries of the program;
              (2) A program has substantially failed to implement its goals and objectives;
              (3) There are serious irregularities in the fiscal management of the grant; or
              (4) The grantee is otherwise deficient in its program performance.
              (5) Upon receiving an authorized request from the grantee, the area social services staff and/or grants officer shall provide the necessary technical assistance to arrive at mutually determined corrective action measures and their actual implementation, if necessary, and the timeframes within which said corrective actions will be implemented.

              § 23.43
              Authority for grant approval and execution.
              (a) Tribal government programs. The appropriate Agency Superintendent or Regional Director may approve a grant application and its subsequent execution under subpart C when the intent, purpose and scope of the application pertains solely to reservations located within the service area jurisdiction of the agency or area office.
              (b) Off-reservation programs. The appropriate Regional Director may approve a grant application and its subsequent execution under subpart D when the intent, purpose and scope of the grant proposal pertains to off-reservation Indian service populations or programs.

              § 23.44
              Grant administration and monitoring.
              All grantees under this part shall be responsible for managing day-to-day program operations to ensure that program performance goals are being achieved and to ensure compliance with the provisions of the grant award document and other applicable Federal requirements. Unless delegated to the Agency Superintendent, appropriate area office personnel designated by the Regional Director shall be responsible for all grant program and fiscal monitoring responsibilities.

              § 23.45
              Subgrants.
              A tribal government grantee may make a subgrant under subpart C of this part, provided that such subgrants are for the purpose for which the grant was made and that the grantee retains administrative and financial responsibility over the activity and the funds.

              § 23.46
              Financial management, internal and external controls and other assurances.
              Grantee financial management systems shall comply with the following standards for accurate, current and complete disclosure of financial activities.
              (a) OMB Circular A-87 (Cost principles for state and local governments and federally recognized Indian tribal governments).
              (b) OMB Circular A-102 (Common rule 43 CFR part 12).
              (c) OMB Circular A-128 (Single Audit Act).
              (d) OMB Circular A-110 or 122 (Cost principles for non-profit organizations and tribal organizations, where applicable).
              (e) Internal control. Effective control and accountability must be maintained for all grants. Grantees must adequately safeguard any property and must ensure that it is used solely for authorized purposes.
              (f) Budget control. Actual expenditures must be compared with budgeted amounts for the grant. Financial information must be related to program performance requirements.
              (g) Source documentation. Accounting records must be supported by such source documentation as cancelled checks, paid bills, payrolls, time and attendance records, grant documents, or other information required by the grantee's financial management system. The Secretary or his/her designee may review the adequacy of the financial management system of an Indian tribe(s) or off-reservation Indian organization applying for a grant under this part.
              (h) Pursuant to 18 U.S.C. 641, whoever embezzles, steals, purloins, or knowingly converts to his or her use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof; or whoever receives, conceals, or retains the same with intent to convert it to his or her use or gain, knowing it to have been embezzled, stolen, purloined, or converted shall be fined not more than $10,000 or imprisoned not more than 10 years, or both; but if the value of such property does not exceed the sum of $100, he or she shall be fined not more than $1,000 or imprisoned not more than one year, or both.

              § 23.47
              Reports and availability of information to Indians.

              (a) Any tribal government or off-reservation Indian organization receiving a grant under this part shall make general programmatic information and reports concerning that grant available to the Indian people it serves or represents. Access to this information may be requested in writing and shall be made available within 10 days of receipt of the request. Except as required by title IV of Pub. L. 101-630, the Indian Child Protection and Family Violence Prevention Act, grantees shall hold confidential all information obtained from persons receiving services from the program, and shall not release such information without the individual's written consent. Information may be disclosed in a manner which does not identify or lead to the identification of particular individuals.
              (b) Grantees shall submit Standard Form 269 or 269A on a quarterly and an annual basis to report their status of funds by the dates specified in the grant award document.
              (c) Grantees shall furnish and submit the following written quarterly and annual program reports by the dates specified in the award document:
              (1) Quarterly and annual statistical and narrative program performance reports which shall include, but need not be limited to, the following;
              (i) A summary of actual accomplishments and significant activities as related to program objectives established for the grant period;
              (ii) The grantee's evaluation of program performance using the internal monitoring system submitted in their application;
              (iii) Reports on all significant ICWA direct service grant activities including but not limited to the following information:
              (A) Significant title II activities;
              (B) Data reflecting numbers of individuals referred for out-of-home placements, number of individuals benefiting from title II services and types of services provided, and
              (C) Information and referral activities.
              (iv) Child abuse and neglect statistical reports and related information as required by 25 U.S.C. 2434, Pub. L. 99-570, the Indian Alcohol and Substance Abuse Prevention and Treatment Act of 1986;
              (v) A summary of problems encountered or reasons for not meeting established objectives;
              (vi) Any deliverable or product required in the grant; and
              (vii) Additional pertinent information when appropriate.
              (2) The BIA may negotiate for the provision of other grant-related reports not previously identified.
              (d) Events may occur between scheduled performance reporting dates which have significant impact on the grant-supported activity. In such cases, the grantee must inform the awarding agency as soon as problems, delays, adverse conditions, or serious incidents giving rise to liability become known and which will materially impair its ability to meet the objectives of the grant.

              § 23.48
              Matching shares and agreements.
              (a) Grant funds provided to Indian tribes under subpart C of this part may be used as non-Federal matching shares in connection with funds provided under titles IV-B, IV-E and XX of the Social Security Act or such other Federal programs which contribute to and promote the purposes of the Act as specified in §§ 23.3 and 23.22 (25 U.S.C. 1931).
              (b) Pursuant to 25 U.S.C. 1933, in furtherance of the establishment, operation, and funding of programs funded under subparts C and D of this part, the Secretary may enter into agreements with the Secretary of Health and Human Services. The latter Secretary is authorized by the Act to use funds appropriated for the Department of Health and Human Services for programs similar to those funded under subparts C and D of this part (25 U.S.C. 1931 and 1932), provided that authority to make payment pursuant to such agreements shall be effective only to the extent and in such amounts as may be provided in advance by appropriation Acts.

              § 23.49
              Fair and uniform provision of services.

              (a) Grants awarded under this part shall include provisions assuring compliance with the Indian Civil Rights Act; prohibiting discriminatory distinctions among eligible Indian beneficiaries; and assuring the fair and uniform provision by the grantees of the services and assistance they provide to eligible Indian beneficiaries under such grants. Such procedures must include criteria by which eligible Indian beneficiaries will receive services, recordkeeping mechanisms adequate to verify the fairness and uniformity of services in cases of formal complaints, and an explanation of what rights will be afforded an individual pending the resolution of a complaint.
              (b) Indian beneficiaries of the services to be rendered under a grant shall be afforded access to administrative or judicial bodies empowered to adjudicate complaints, claims, or grievances brought by such Indian beneficiaries against the grantee arising out of the performance of the grant.

              § 23.50
              Service eligibility.
              (a) Tribal government Indian child and family service programs. Any person meeting the definition of Indian, Indian child, Indian custodian, or Indian parent of any unmarried person under the age of 18 as defined in § 23.2 is eligible for services provided under 25 U.S.C. 1931 of the Act. Tribal membership status shall be determined by tribal law, ordinance, or custom. The tribe may, under subpart C, extend services to nontribal family members related by marriage to tribal members, provided such services promote the intent and purposes of the Act. A tribe may also, within available resources, extend services under this part to individuals who are members of, or are eligible for membership in other Indian tribes, and who reside within the tribe's designated service area.
              (b) Off-reservation Indian child and family service programs and agreements with the Secretary of Health and Human Services pursuant to 25 U.S.C. 1933. For purposes of eligibility for services provided under 25 U.S.C. 1932 and 1933 of the Act, any person meeting the definition of Indian, Indian child, Indian custodian, or Indian parent of any unmarried person under the age of 18 as defined in § 23.2, or the definition of Indian as defined in 25 U.S.C. 1603(c), shall be eligible for services. Tribal membership status shall be determined by tribal law, ordinance, or custom.

              § 23.51
              Grant carry-over authority.
              Unless restricted by appropriation, and contingent upon satisfactory program evaluations from the appropriate area or agency office for an existing program, grantees are authorized to carry over unliquidated grant funds which remain at the end of a budget period. Such funds may be carried over for a maximum period of two years beyond the initial grant funding period and must be utilized only for the intent, purpose and scope of the original grant. These carry-over grant funds shall not be reprogrammed into other appropriation activities or subactivities. Funds carried over into another fiscal year will be added to the grantee's new fiscal year funding amount.

              § 23.52
              Grant suspension.
              (a) When a grantee has materially failed to comply and remains out of compliance with the terms and conditions of the grant, the grants officer may, after reasonable notice to the grantee and the provision of requested technical assistance, suspend the grant. The notice preceding the suspension shall include the effective date of the suspension, the corrective measures necessary for reinstatement of the grant and, if there is no immediate threat to safety, a reasonable timeframe for corrective action prior to actual suspension.
              (b) No obligation incurred by the grantee during the period of suspension shall be allowable under the suspended grant, except that the grants officer may at his/her discretion allow necessary and proper costs which the grantee could not reasonably avoid during the period of suspension if such costs would otherwise be allowable under the applicable cost principles.

              (c) Appropriate adjustments to the payments under the suspended grant will be made either by withholding the payments or by not allowing the grantee credit for disbursements which the grantee may make in liquidation of unauthorized obligations the grantee incurs during the period of suspension.

              (d) Suspension shall remain in effect until the grantee has taken corrective action to the satisfaction of the grants officer, or given assurances satisfactory to the grants officer that corrective action will be taken, or until the grants officer cancels the grant.

              § 23.53
              Cancellation.
              (a) The grants officer may cancel any grant, in whole or in part, at any time before the date of completion whenever it is determined that the grantee has:
              (1) Materially failed to comply with the terms and conditions of the grant;
              (2) Violated the rights as specified in § 23.49 or endangered the health, safety, or welfare of any person; or
              (3) Been grossly negligent in, or has mismanaged the handling or use of funds provided under the grant.
              (b) When it appears that cancellation of the grant will become necessary, the grants officer shall promptly notify the grantee in writing of this possibility. This written notice shall advise the grantee of the reason for the possible cancellation and the corrective action necessary to avoid cancellation. The grants officer shall also offer, and shall provide, if requested by the grantee, any technical assistance which may be required to effect the corrective action. The grantee shall have 60 days in which to effect this corrective action before the grants officer provides notice of intent to cancel the grant as provided for in paragraph (c) of this section.
              (c) Upon deciding to cancel for cause, the grants officer shall promptly notify the grantee in writing of that decision, the reason for the cancellation, and the effective date. The Regional Director or his/her designated official shall also provide a hearing for the grantee before cancellation. However, the grants officer may immediately cancel the grant, upon notice to the grantee, if the grants officer determines that continuance of the grant poses an immediate threat to safety. In this event, the Regional Director or his/her designated official shall provide a hearing for the grantee within 10 days of the cancellation.
              (d) The hearing referred to in paragraph (c) of this section shall be conducted as follows:
              (1) The grantee affected shall be notified, in writing, at least 10 days before the hearing. The notice should give the date, time, place, and purpose of the hearing.
              (2) A written record of the hearing shall be made. The record shall include written statements submitted at the hearing or within five days following the hearing.

            Subpart F—Appeals

              § 23.61
              Appeals from decision or action by Agency Superintendent, Regional Director or Grants Officer.
              A grantee or prospective applicant may appeal any decision made or action taken by the Agency Superintendent, Regional Director, or grants officer under subpart C or E of this part. Such an appeal shall be made to the Assistant Secretary who shall consider the appeal in accordance with 25 CFR 2.20 (c) through (e). Appeal procedures shall be as set out in part 2 of this chapter.

              § 23.62
              Appeals from decision or action by Regional Director under subpart D.
              A grantee or applicant may appeal any decision made or action taken by the Regional Director under subpart D that is alleged to be in violation of the U.S. Constitution, Federal statutes, or the regulations of this part. These appeals shall be filed with the Interior Board of Indian Appeals in accordance with 25 CFR 2.4 (e); 43 CFR 4.310 through 4.318 and 43 CFR 4.330 through 4.340. However, an applicant may not appeal a score assigned to its application or the amount of grant funds awarded.

              § 23.63
              Appeals from inaction of official.
              A person or persons whose interests are adversely affected, or whose ability to protect such interests is impeded by the failure of an official to act on a request to the official, may make the official's inaction the subject of an appeal under part 2 of this chapter.

            Subpart G—Administrative Provisions

              § 23.71
              Recordkeeping and information availability.
              (a) The Division of Human Services, Bureau of Indian Affairs (BIA), is authorized to receive all information and to maintain a central file on all State Indian adoptions. This file is confidential and only designated persons may have access to it.
              (b) Upon the request of an adopted Indian who has reached age 18, the adoptive or foster parents of an Indian child, or an Indian Tribe, BIA will disclose such information as may be necessary for purposes of Tribal enrollment or determining any rights or benefits associated with Tribal membership. Where the documents relating to such child contain an affidavit from the biological parent or parents requesting anonymity, BIA must certify to the Indian child's Tribe, where the information warrants, that the child's parentage and other circumstances entitle the child to enrollment under the criteria established by such Tribe.
              (c) BIA will ensure that the confidentiality of this information is maintained and that the information is not subject to the Freedom of Information Act, 5 U.S.C. 552, as amended.
              [81 FR 38867, June 14, 2016]

            Subpart H—Assistance to State Courts

              § 23.81
              Assistance in identifying witnesses.
              Upon the request of a party in an involuntary Indian child custody proceeding or of a court, the Secretary or his/her designee shall assist in identifying qualified expert witnesses. Such requests for assistance shall be sent to the Regional Director designated in § 23.11(c). The BIA is not obligated to pay for the services of such expert witnesses.

              § 23.82
              Assistance in identifying language interpreters.
              Upon the request of a party in an Indian child custody proceeding or of a court, the Secretary or his/her designee shall assist in identifying language interpreters. Such requests for assistance should be sent to the Regional Director designated in § 23.11(c). The BIA is not obligated to pay for the services of such language interpreters.

              § 23.83
              Assistance in locating biological parents of Indian child after termination of adoption.
              Upon the request of a child placement agency, the court or an Indian tribe, the Secretary or his/her designee shall assist in locating the biological parents or prior Indian custodians of an adopted Indian child whose adoption has been terminated pursuant to 25 U.S.C. 1914. Such requests for assistance should be sent to the Regional Director designated in § 23.11(c).

            Subpart I—Indian Child Welfare Act Proceedings

              Source:
              81 FR 38867, June 14, 2016, unless otherwise noted.

              General Provisions

                § 23.101
                What is the purpose of this subpart?
                The regulations in this subpart clarify the minimum Federal standards governing implementation of the Indian Child Welfare Act (ICWA) to ensure that ICWA is applied in all States consistent with the Act's express language, Congress's intent in enacting the statute, and to promote the stability and security of Indian tribes and families.

                § 23.102
                What terms do I need to know?
                The following terms and their definitions apply to this subpart. All other terms have the meanings assigned in § 23.2.

                  Agency means a nonprofit, for-profit, or governmental organization and its employees, agents, or officials that performs, or provides services to biological parents, foster parents, or adoptive parents to assist in the administrative and social work necessary for foster, preadoptive, or adoptive placements.

                  Indian organization means any group, association, partnership, corporation, or other legal entity owned or controlled by Indians or a Tribe, or a majority of whose members are Indians.

                § 23.103
                When does ICWA apply?
                (a) ICWA includes requirements that apply whenever an Indian child is the subject of:
                (1) A child-custody proceeding, including:
                (i) An involuntary proceeding;
                (ii) A voluntary proceeding that could prohibit the parent or Indian custodian from regaining custody of the child upon demand; and
                (iii) A proceeding involving status offenses if any part of the proceeding results in the need for out-of-home placement of the child, including a foster-care, preadoptive, or adoptive placement, or termination of parental rights.
                (2) An emergency proceeding.
                (b) ICWA does not apply to:
                (1) A Tribal court proceeding;
                (2) A proceeding regarding a criminal act that is not a status offense;
                (3) An award of custody of the Indian child to one of the parents including, but not limited to, an award in a divorce proceeding; or
                (4) A voluntary placement that either parent, both parents, or the Indian custodian has, of his or her or their free will, without a threat of removal by a State agency, chosen for the Indian child and that does not operate to prohibit the child's parent or Indian custodian from regaining custody of the child upon demand.
                (c) If a proceeding listed in paragraph (a) of this section concerns a child who meets the statutory definition of “Indian child,” then ICWA will apply to that proceeding. In determining whether ICWA applies to a proceeding, the State court may not consider factors such as the participation of the parents or the Indian child in Tribal cultural, social, religious, or political activities, the relationship between the Indian child and his or her parents, whether the parent ever had custody of the child, or the Indian child's blood quantum.
                (d) If ICWA applies at the commencement of a proceeding, it will not cease to apply simply because the child reaches age 18 during the pendency of the proceeding.

                § 23.104
                What provisions of this subpart apply to each type of child-custody proceeding?
                The following table lists what sections of this subpart apply to each type of child-custody proceeding identified in § 23.103(a):

                    Section
                    Type of proceeding

                    23.101-23.106 (General Provisions)
                    Emergency, Involuntary, Voluntary.

                      Pretrial Requirements:

                    23.107 (How should a State court determine if there is reason to know the child is an Indian child?)
                    Emergency, Involuntary, Voluntary.

                    23.108 (Who makes the determination as to whether a child is a member whether a child is eligible for membership, or whether a biological parent is a member of a Tribe?)
                    Emergency, Involuntary, Voluntary.

                    23.109 (How should a State court determine an Indian child's Tribe when the child may be a member or eligible for membership in more than one Tribe?)
                    Emergency, Involuntary, Voluntary.

                    23.110 (When must a State court dismiss an action?)
                    Involuntary, Voluntary.

                    23.111 (What are the notice requirements for a child-custody proceeding involving an Indian child?)
                    Involuntary (foster-care placement and termination of parental rights).

                    23.112 (What time limits and extensions apply?)
                    Involuntary (foster-care placement and termination of parental rights).

                    23.113 (What are the standards for emergency proceedings involving an Indian child?)
                    Emergency.

                    23.114 (What are the requirements for determining improper removal?)
                    Involuntary.

                      Petitions to Transfer to Tribal Court:

                    23.115 (How are petitions for transfer of a proceeding made?)
                    Involuntary, Voluntary (foster-care placement and termination of parental rights).

                    23.116 (What happens after a petition for transfer is made?)
                    Involuntary, Voluntary (foster-care placement and termination of parental rights).

                    23.117 (What are the criteria for ruling on transfer petitions?)
                    Involuntary, Voluntary (foster-care placement and termination of parental rights).

                    23.118 (How is a determination of “good cause” to deny transfer made?)
                    Involuntary, Voluntary (foster-care placement and termination of parental rights).

                    23.119 (What happens after a petition for transfer is granted?)
                    Involuntary, Voluntary (foster-care placement and termination of parental rights).

                      Adjudication of Involuntary Proceedings:

                    23.120 (How does the State court ensure that active efforts have been made?)
                    Involuntary (foster-care placement and termination of parental rights).

                    23.121 (What are the applicable standards of evidence?)
                    Involuntary (foster-care placement and termination of parental rights).

                    23.122 (Who may serve as a qualified expert witness?)
                    Involuntary (foster-care placement and termination of parental rights).

                    23.123 Reserved
                    N/A.

                      Voluntary Proceedings:

                    23.124 (What actions must a State court undertake in voluntary proceedings?)
                    Voluntary.

                    23.125 (How is consent obtained?)
                    Voluntary.

                    23.126 (What information must a consent document contain?)
                    Voluntary.

                    23.127 (How is withdrawal of consent to a foster-care placement achieved?)
                    Voluntary.

                    23.128 (How is withdrawal of consent to a termination of parental rights or adoption achieved?)
                    Voluntary.

                      Dispositions:

                    23.129 (When do the placement preferences apply?)
                    Involuntary, Voluntary.

                    23.130 (What placement preferences apply in adoptive placements?)
                    Involuntary, Voluntary.

                    23.131 (What placement preferences apply in foster-care or preadoptive placements?)
                    Involuntary, Voluntary.

                    23.132 (How is a determination of “good cause” to depart from the placement preferences made?)
                    Involuntary, Voluntary.

                      Access:

                    23.133 (Should courts allow participation by alternative methods?)
                    Emergency, Involuntary.

                    23.134 (Who has access to reports and records during a proceeding?)
                    Emergency, Involuntary.

                    23.135 Reserved.
                    N/A.

                      Post-Trial Rights & Responsibilities:

                    23.136 (What are the requirements for vacating an adoption based on consent having been obtained through fraud or duress?)
                    Involuntary (if consent given under threat of removal), voluntary.

                    23.137 (Who can petition to invalidate an action for certain ICWA violations?)
                    Emergency (to extent it involved a specified violation), involuntary, voluntary.

                    23.138 (What are the rights to information about adoptees' Tribal affiliations?)
                    Emergency, Involuntary, Voluntary.

                    23.139 (Must notice be given of a change in an adopted Indian child's status?)
                    Involuntary, Voluntary.

                      Recordkeeping:

                    23.140 (What information must States furnish to the Bureau of Indian Affairs?)
                    Involuntary, Voluntary.

                    23.141 (What records must the State maintain?)
                    Involuntary, Voluntary.

                    23.142 (How does the Paperwork Reduction Act affect this subpart?)
                    Emergency, Involuntary, Voluntary.

                      Effective Date:

                    23.143 (How does this subpart apply to pending proceedings?)
                    Emergency, Involuntary, Voluntary.

                      Severability:

                    23.144 (What happens if some portion of part is held to be invalid by a court of competent jurisdiction?)
                    Emergency, Involuntary, Voluntary.

                    Note: For purposes of this table, status-offense child-custody proceedings are included as a type of involuntary proceeding.

                § 23.105
                How do I contact a Tribe under the regulations in this subpart?
                To contact a Tribe to provide notice or obtain information or verification under the regulations in this subpart, you should direct the notice or inquiry as follows:

                (a) Many Tribes designate an agent for receipt of ICWA notices. The BIA publishes a list of Tribes' designated Tribal agents for service of ICWA notice in the Federal Register each year and makes the list available on its Web site at www.bia.gov.

                (b) For a Tribe without a designated Tribal agent for service of ICWA notice, contact the Tribe to be directed to the appropriate office or individual.

                (c) If you do not have accurate contact information for a Tribe, or the Tribe contacted fails to respond to written inquiries, you should seek assistance in contacting the Indian Tribe from the BIA local or regional office or the BIA's Central Office in Washington, DC (see www.bia.gov).

                § 23.106
                How does this subpart interact with State and Federal laws?
                (a) The regulations in this subpart provide minimum Federal standards to ensure compliance with ICWA.
                (b) Under section 1921 of ICWA, where applicable State or other Federal law provides a higher standard of protection to the rights of the parent or Indian custodian than the protection accorded under the Act, ICWA requires the State or Federal court to apply the higher State or Federal standard.

              Pretrial Requirements

                § 23.107
                How should a State court determine if there is reason to know the child is an Indian child?
                (a) State courts must ask each participant in an emergency or voluntary or involuntary child-custody proceeding whether the participant knows or has reason to know that the child is an Indian child. The inquiry is made at the commencement of the proceeding and all responses should be on the record. State courts must instruct the parties to inform the court if they subsequently receive information that provides reason to know the child is an Indian child.
                (b) If there is reason to know the child is an Indian child, but the court does not have sufficient evidence to determine that the child is or is not an “Indian child,” the court must:
                (1) Confirm, by way of a report, declaration, or testimony included in the record that the agency or other party used due diligence to identify and work with all of the Tribes of which there is reason to know the child may be a member (or eligible for membership), to verify whether the child is in fact a member (or a biological parent is a member and the child is eligible for membership); and
                (2) Treat the child as an Indian child, unless and until it is determined on the record that the child does not meet the definition of an “Indian child” in this part.
                (c) A court, upon conducting the inquiry required in paragraph (a) of this section, has reason to know that a child involved in an emergency or child-custody proceeding is an Indian child if:
                (1) Any participant in the proceeding, officer of the court involved in the proceeding, Indian Tribe, Indian organization, or agency informs the court that the child is an Indian child;
                (2) Any participant in the proceeding, officer of the court involved in the proceeding, Indian Tribe, Indian organization, or agency informs the court that it has discovered information indicating that the child is an Indian child;
                (3) The child who is the subject of the proceeding gives the court reason to know he or she is an Indian child;
                (4) The court is informed that the domicile or residence of the child, the child's parent, or the child's Indian custodian is on a reservation or in an Alaska Native village;
                (5) The court is informed that the child is or has been a ward of a Tribal court; or
                (6) The court is informed that either parent or the child possesses an identification card indicating membership in an Indian Tribe.
                (d) In seeking verification of the child's status in a voluntary proceeding where a consenting parent evidences, by written request or statement in the record, a desire for anonymity, the court must keep relevant documents pertaining to the inquiry required under this section confidential and under seal. A request for anonymity does not relieve the court, agency, or other party from any duty of compliance with ICWA, including the obligation to verify whether the child is an “Indian child.” A Tribe receiving information related to this inquiry must keep documents and information confidential.

                § 23.108
                Who makes the determination as to whether a child is a member, whether a child is eligible for membership, or whether a biological parent is a member of a Tribe?

                (a) The Indian Tribe of which it is believed the child is a member (or eligible for membership and of which the biological parent is a member) determines whether the child is a member of the Tribe, or whether the child is eligible for membership in the Tribe and a biological parent of the child is a member of the Tribe, except as otherwise provided by Federal or Tribal law.

                (b) The determination by a Tribe of whether a child is a member, whether a child is eligible for membership, or whether a biological parent is a member, is solely within the jurisdiction and authority of the Tribe, except as otherwise provided by Federal or Tribal law. The State court may not substitute its own determination regarding a child's membership in a Tribe, a child's eligibility for membership in a Tribe, or a parent's membership in a Tribe.
                (c) The State court may rely on facts or documentation indicating a Tribal determination of membership or eligibility for membership in making a judicial determination as to whether the child is an “Indian child.” An example of documentation indicating membership is a document issued by the Tribe, such as Tribal enrollment documentation.

                § 23.109
                How should a State court determine an Indian child's Tribe when the child may be a member or eligible for membership in more than one Tribe?
                (a) If the Indian child is a member or eligible for membership in only one Tribe, that Tribe must be designated as the Indian child's Tribe.
                (b) If the Indian child meets the definition of “Indian child” through more than one Tribe, deference should be given to the Tribe in which the Indian child is already a member, unless otherwise agreed to by the Tribes.
                (c) If an Indian child meets the definition of “Indian child” through more than one Tribe because the child is a member in more than one Tribe or the child is not a member of but is eligible for membership in more than one Tribe, the court must provide the opportunity in any involuntary child-custody proceeding for the Tribes to determine which should be designated as the Indian child's Tribe.
                (1) If the Tribes are able to reach an agreement, the agreed-upon Tribe should be designated as the Indian child's Tribe.
                (2) If the Tribes are unable to reach an agreement, the State court designates, for the purposes of ICWA, the Indian Tribe with which the Indian child has the more significant contacts as the Indian child's Tribe, taking into consideration:
                (i) Preference of the parents for membership of the child;
                (ii) Length of past domicile or residence on or near the reservation of each Tribe;
                (iii) Tribal membership of the child's custodial parent or Indian custodian; and
                (iv) Interest asserted by each Tribe in the child-custody proceeding;
                (v) Whether there has been a previous adjudication with respect to the child by a court of one of the Tribes; and
                (vi) Self-identification by the child, if the child is of sufficient age and capacity to meaningfully self-identify.
                (3) A determination of the Indian child's Tribe for purposes of ICWA and the regulations in this subpart do not constitute a determination for any other purpose.

                § 23.110
                When must a State court dismiss an action?
                Subject to 25 U.S.C. 1919 (Agreements between States and Indian Tribes) and § 23.113 (emergency proceedings), the following limitations on a State court's jurisdiction apply:
                (a) The court in any voluntary or involuntary child-custody proceeding involving an Indian child must determine the residence and domicile of the Indian child. If either the residence or domicile is on a reservation where the Tribe exercises exclusive jurisdiction over child-custody proceedings, the State court must expeditiously notify the Tribal court of the pending dismissal based on the Tribe's exclusive jurisdiction, dismiss the State-court child-custody proceeding, and ensure that the Tribal court is sent all information regarding the Indian child-custody proceeding, including, but not limited to, the pleadings and any court record.
                (b) If the child is a ward of a Tribal court, the State court must expeditiously notify the Tribal court of the pending dismissal, dismiss the State-court child-custody proceeding, and ensure that the Tribal court is sent all information regarding the Indian child-custody proceeding, including, but not limited to, the pleadings and any court record.

                § 23.111
                What are the notice requirements for a child-custody proceeding involving an Indian child?
                (a) When a court knows or has reason to know that the subject of an involuntary foster-care-placement or termination-of-parental-rights proceeding is an Indian child, the court must ensure that:
                (1) The party seeking placement promptly sends notice of each such child-custody proceeding (including, but not limited to, any foster-care placement or any termination of parental or custodial rights) in accordance with this section; and
                (2) An original or a copy of each notice sent under this section is filed with the court together with any return receipts or other proof of service.
                (b) Notice must be sent to:

                (1) Each Tribe where the child may be a member (or eligible for membership if a biological parent is a member) (see § 23.105 for information on how to contact a Tribe);
                (2) The child's parents; and
                (3) If applicable, the child's Indian custodian.
                (c) Notice must be sent by registered or certified mail with return receipt requested. Notice may also be sent via personal service or electronically, but such alternative methods do not replace the requirement for notice to be sent by registered or certified mail with return receipt requested.
                (d) Notice must be in clear and understandable language and include the following:
                (1) The child's name, birthdate, and birthplace;
                (2) All names known (including maiden, married, and former names or aliases) of the parents, the parents' birthdates and birthplaces, and Tribal enrollment numbers if known;
                (3) If known, the names, birthdates, birthplaces, and Tribal enrollment information of other direct lineal ancestors of the child, such as grandparents;
                (4) The name of each Indian Tribe in which the child is a member (or may be eligible for membership if a biological parent is a member);
                (5) A copy of the petition, complaint, or other document by which the child-custody proceeding was initiated and, if a hearing has been scheduled, information on the date, time, and location of the hearing;
                (6) Statements setting out:
                (i) The name of the petitioner and the name and address of petitioner's attorney;
                (ii) The right of any parent or Indian custodian of the child, if not already a party to the child-custody proceeding, to intervene in the proceedings.
                (iii) The Indian Tribe's right to intervene at any time in a State-court proceeding for the foster-care placement of or termination of parental rights to an Indian child.
                (iv) That, if the child's parent or Indian custodian is unable to afford counsel based on a determination of indigency by the court, the parent or Indian custodian has the right to court-appointed counsel.
                (v) The right to be granted, upon request, up to 20 additional days to prepare for the child-custody proceedings.
                (vi) The right of the parent or Indian custodian and the Indian child's Tribe to petition the court for transfer of the foster-care-placement or termination-of-parental-rights proceeding to Tribal court as provided by 25 U.S.C. 1911 and § 23.115.
                (vii) The mailing addresses and telephone numbers of the court and information related to all parties to the child-custody proceeding and individuals notified under this section.
                (viii) The potential legal consequences of the child-custody proceedings on the future parental and custodial rights of the parent or Indian custodian.
                (ix) That all parties notified must keep confidential the information contained in the notice and the notice should not be handled by anyone not needing the information to exercise rights under ICWA.

                (e) If the identity or location of the child's parents, the child's Indian custodian, or the Tribes in which the Indian child is a member or eligible for membership cannot be ascertained, but there is reason to know the child is an Indian child, notice of the child-custody proceeding must be sent to the appropriate Bureau of Indian Affairs Regional Director (see www.bia.gov). To establish Tribal identity, as much information as is known regarding the child's direct lineal ancestors should be provided. The Bureau of Indian Affairs will not make a determination of Tribal membership but may, in some instances, be able to identify Tribes to contact.
                (f) If there is a reason to know that a parent or Indian custodian possesses limited English proficiency and is therefore not likely to understand the contents of the notice, the court must provide language access services as required by Title VI of the Civil Rights Act and other Federal laws. To secure such translation or interpretation support, a court may contact or direct a party to contact the Indian child's Tribe or the local BIA office for assistance in locating and obtaining the name of a qualified translator or interpreter.
                (g) If a parent or Indian custodian of an Indian child appears in court without an attorney, the court must inform him or her of his or her rights, including any applicable right to appointed counsel, right to request that the child-custody proceeding be transferred to Tribal court, right to object to such transfer, right to request additional time to prepare for the child-custody proceeding as provided in § 23.112, and right (if the parent or Indian custodian is not already a party) to intervene in the child-custody proceedings.

                § 23.112
                What time limits and extensions apply?
                (a) No foster-care-placement or termination-of-parental-rights proceeding may be held until at least 10 days after receipt of the notice by the parent (or Indian custodian) and by the Tribe (or the Secretary). The parent, Indian custodian, and Tribe each have a right, upon request, to be granted up to 20 additional days from the date upon which notice was received to prepare for participation in the proceeding.
                (b) Except as provided in 25 U.S.C. 1922 and § 23.113, no child-custody proceeding for foster-care placement or termination of parental rights may be held until the waiting periods to which the parents or Indian custodians and to which the Indian child's Tribe are entitled have expired, as follows:
                (1) 10 days after each parent or Indian custodian (or Secretary where the parent or Indian custodian is unknown to the petitioner) has received notice of that particular child-custody proceeding in accordance with 25 U.S.C. 1912(a) and § 23.111;
                (2) 10 days after the Indian child's Tribe (or the Secretary if the Indian child's Tribe is unknown to the party seeking placement) has received notice of that particular child-custody proceeding in accordance with 25 U.S.C. 1912(a) and § 23.111;
                (3) Up to 30 days after the parent or Indian custodian has received notice of that particular child-custody proceeding in accordance with 25 U.S.C. 1912(a) and § 23.111, if the parent or Indian custodian has requested up to 20 additional days to prepare for the child-custody proceeding as provided in 25 U.S.C. 1912(a) and § 23.111; and
                (4) Up to 30 days after the Indian child's Tribe has received notice of that particular child-custody proceeding in accordance with 25 U.S.C. 1912(a) and § 23.111, if the Indian child's Tribe has requested up to 20 additional days to prepare for the child-custody proceeding.
                (c) Additional time beyond the minimum required by 25 U.S.C. 1912 and § 23.111 may also be available under State law or pursuant to extensions granted by the court.

                § 23.113
                What are the standards for emergency proceedings involving an Indian child?
                (a) Any emergency removal or placement of an Indian child under State law must terminate immediately when the removal or placement is no longer necessary to prevent imminent physical damage or harm to the child.
                (b) The State court must:
                (1) Make a finding on the record that the emergency removal or placement is necessary to prevent imminent physical damage or harm to the child;
                (2) Promptly hold a hearing on whether the emergency removal or placement continues to be necessary whenever new information indicates that the emergency situation has ended; and

                (3) At any court hearing during the emergency proceeding, determine whether the emergency removal or placement is no longer necessary to prevent imminent physical damage or harm to the child.
                (4) Immediately terminate (or ensure that the agency immediately terminates) the emergency proceeding once the court or agency possesses sufficient evidence to determine that the emergency removal or placement is no longer necessary to prevent imminent physical damage or harm to the child.
                (c) An emergency proceeding can be terminated by one or more of the following actions:
                (1) Initiation of a child-custody proceeding subject to the provisions of ICWA;
                (2) Transfer of the child to the jurisdiction of the appropriate Indian Tribe; or
                (3) Restoring the child to the parent or Indian custodian.
                (d) A petition for a court order authorizing the emergency removal or continued emergency placement, or its accompanying documents, should contain a statement of the risk of imminent physical damage or harm to the Indian child and any evidence that the emergency removal or placement continues to be necessary to prevent such imminent physical damage or harm to the child. The petition or its accompanying documents should also contain the following information:
                (1) The name, age, and last known address of the Indian child;
                (2) The name and address of the child's parents and Indian custodians, if any;
                (3) The steps taken to provide notice to the child's parents, custodians, and Tribe about the emergency proceeding;

                (4) If the child's parents and Indian custodians are unknown, a detailed explanation of what efforts have been made to locate and contact them, including contact with the appropriate BIA Regional Director (see www.bia.gov);
                (5) The residence and the domicile of the Indian child;
                (6) If either the residence or the domicile of the Indian child is believed to be on a reservation or in an Alaska Native village, the name of the Tribe affiliated with that reservation or village;
                (7) The Tribal affiliation of the child and of the parents or Indian custodians;
                (8) A specific and detailed account of the circumstances that led the agency responsible for the emergency removal of the child to take that action;
                (9) If the child is believed to reside or be domiciled on a reservation where the Tribe exercises exclusive jurisdiction over child-custody matters, a statement of efforts that have been made and are being made to contact the Tribe and transfer the child to the Tribe's jurisdiction; and
                (10) A statement of the efforts that have been taken to assist the parents or Indian custodians so the Indian child may safely be returned to their custody.
                (e) An emergency proceeding regarding an Indian child should not be continued for more than 30 days unless the court makes the following determinations:
                (1) Restoring the child to the parent or Indian custodian would subject the child to imminent physical damage or harm;
                (2) The court has been unable to transfer the proceeding to the jurisdiction of the appropriate Indian Tribe; and
                (3) It has not been possible to initiate a “child-custody proceeding” as defined in § 23.2.

                § 23.114
                What are the requirements for determining improper removal?
                (a) If, in the course of any child-custody proceeding, any party asserts or the court has reason to believe that the Indian child may have been improperly removed from the custody of his or her parent or Indian custodian, or that the Indian child has been improperly retained (such as after a visit or other temporary relinquishment of custody), the court must expeditiously determine whether there was improper removal or retention.

                (b) If the court finds that the Indian child was improperly removed or retained, the court must terminate the proceeding and the child must be returned immediately to his or her parent or Indian custodian, unless returning the child to his parent or Indian custodian would subject the child to substantial and immediate danger or threat of such danger.

              Petitions To Transfer to Tribal Court

                § 23.115
                How are petitions for transfer of a proceeding made?
                (a) Either parent, the Indian custodian, or the Indian child's Tribe may request, at any time, orally on the record or in writing, that the State court transfer a foster-care or termination-of-parental-rights proceeding to the jurisdiction of the child's Tribe.
                (b) The right to request a transfer is available at any stage in each foster-care or termination-of-parental-rights proceeding.

                § 23.116
                What happens after a petition for transfer is made?
                Upon receipt of a transfer petition, the State court must ensure that the Tribal court is promptly notified in writing of the transfer petition. This notification may request a timely response regarding whether the Tribal court wishes to decline the transfer.

                § 23.117
                What are the criteria for ruling on transfer petitions?
                Upon receipt of a transfer petition from an Indian child's parent, Indian custodian, or Tribe, the State court must transfer the child-custody proceeding unless the court determines that transfer is not appropriate because one or more of the following criteria are met:
                (a) Either parent objects to such transfer;
                (b) The Tribal court declines the transfer; or
                (c) Good cause exists for denying the transfer.

                § 23.118
                How is a determination of “good cause” to deny transfer made?
                (a) If the State court believes, or any party asserts, that good cause to deny transfer exists, the reasons for that belief or assertion must be stated orally on the record or provided in writing on the record and to the parties to the child-custody proceeding.
                (b) Any party to the child-custody proceeding must have the opportunity to provide the court with views regarding whether good cause to deny transfer exists.
                (c) In determining whether good cause exists, the court must not consider:
                (1) Whether the foster-care or termination-of-parental-rights proceeding is at an advanced stage if the Indian child's parent, Indian custodian, or Tribe did not receive notice of the child-custody proceeding until an advanced stage;
                (2) Whether there have been prior proceedings involving the child for which no petition to transfer was filed;
                (3) Whether transfer could affect the placement of the child;
                (4) The Indian child's cultural connections with the Tribe or its reservation; or
                (5) Socioeconomic conditions or any negative perception of Tribal or BIA social services or judicial systems.
                (d) The basis for any State-court decision to deny transfer should be stated orally on the record or in a written order.

                § 23.119
                What happens after a petition for transfer is granted?
                (a) If the Tribal court accepts the transfer, the State court should expeditiously provide the Tribal court with all records related to the proceeding, including, but not limited to, the pleadings and any court record.
                (b) The State court should work with the Tribal court to ensure that the transfer of the custody of the Indian child and of the proceeding is accomplished smoothly and in a way that minimizes the disruption of services to the family.

              Adjudication of Involuntary Proceedings

                § 23.120
                How does the State court ensure that active efforts have been made?
                (a) Prior to ordering an involuntary foster-care placement or termination of parental rights, the court must conclude that active efforts have been made to prevent the breakup of the Indian family and that those efforts have been unsuccessful.
                (b) Active efforts must be documented in detail in the record.

                § 23.121
                What are the applicable standards of evidence?
                (a) The court must not order a foster-care placement of an Indian child unless clear and convincing evidence is presented, including the testimony of one or more qualified expert witnesses, demonstrating that the child's continued custody by the child's parent or Indian custodian is likely to result in serious emotional or physical damage to the child.
                (b) The court must not order a termination of parental rights for an Indian child unless evidence beyond a reasonable doubt is presented, including the testimony of one or more qualified expert witnesses, demonstrating that the child's continued custody by the child's parent or Indian custodian is likely to result in serious emotional or physical damage to the child.
                (c) For a foster-care placement or termination of parental rights, the evidence must show a causal relationship between the particular conditions in the home and the likelihood that continued custody of the child will result in serious emotional or physical damage to the particular child who is the subject of the child-custody proceeding.
                (d) Without a causal relationship identified in paragraph (c) of this section, evidence that shows only the existence of community or family poverty, isolation, single parenthood, custodian age, crowded or inadequate housing, substance abuse, or nonconforming social behavior does not by itself constitute clear and convincing evidence or evidence beyond a reasonable doubt that continued custody is likely to result in serious emotional or physical damage to the child.

                § 23.122
                Who may serve as a qualified expert witness?
                (a) A qualified expert witness must be qualified to testify regarding whether the child's continued custody by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child and should be qualified to testify as to the prevailing social and cultural standards of the Indian child's Tribe. A person may be designated by the Indian child's Tribe as being qualified to testify to the prevailing social and cultural standards of the Indian child's Tribe.
                (b) The court or any party may request the assistance of the Indian child's Tribe or the BIA office serving the Indian child's Tribe in locating persons qualified to serve as expert witnesses.
                (c) The social worker regularly assigned to the Indian child may not serve as a qualified expert witness in child-custody proceedings concerning the child.

                § 23.123
                [Reserved]

              Voluntary Proceedings

                § 23.124
                What actions must a State court undertake in voluntary proceedings?
                (a) The State court must require the participants in a voluntary proceeding to state on the record whether the child is an Indian child, or whether there is reason to believe the child is an Indian child, as provided in § 23.107.
                (b) If there is reason to believe the child is an Indian child, the State court must ensure that the party seeking placement has taken all reasonable steps to verify the child's status. This may include contacting the Tribe of which it is believed the child is a member (or eligible for membership and of which the biological parent is a member) to verify the child's status. As described in § 23.107, where a consenting parent requests anonymity, a Tribe receiving such information must keep relevant documents and information confidential.
                (c) State courts must ensure that the placement for the Indian child complies with §§ 23.129-23.132.

                § 23.125
                How is consent obtained?
                (a) A parent's or Indian custodian's consent to a voluntary termination of parental rights or to a foster-care, preadoptive, or adoptive placement must be executed in writing and recorded before a court of competent jurisdiction.
                (b) Prior to accepting the consent, the court must explain to the parent or Indian custodian:

                (1) The terms and consequences of the consent in detail; and

                (2) The following limitations, applicable to the type of child-custody proceeding for which consent is given, on withdrawal of consent:
                (i) For consent to foster-care placement, the parent or Indian custodian may withdraw consent for any reason, at any time, and have the child returned; or
                (ii) For consent to termination of parental rights, the parent or Indian custodian may withdraw consent for any reason, at any time prior to the entry of the final decree of termination and have the child returned; or
                (iii) For consent to an adoptive placement, the parent or Indian custodian may withdraw consent for any reason, at any time prior to the entry of the final decree of adoption, and have the child returned.
                (c) The court must certify that the terms and consequences of the consent were explained on the record in detail in English (or the language of the parent or Indian custodian, if English is not the primary language) and were fully understood by the parent or Indian custodian.
                (d) Where confidentiality is requested or indicated, execution of consent need not be made in a session of court open to the public but still must be made before a court of competent jurisdiction in compliance with this section.
                (e) A consent given prior to, or within 10 days after, the birth of an Indian child is not valid.

                § 23.126
                What information must a consent document contain?
                (a) If there are any conditions to the consent, the written consent must clearly set out the conditions.
                (b) A written consent to foster-care placement should contain, in addition to the information specified in paragraph (a) of this section, the name and birthdate of the Indian child; the name of the Indian child's Tribe; the Tribal enrollment number for the parent and for the Indian child, where known, or some other indication of the child's membership in the Tribe; the name, address, and other identifying information of the consenting parent or Indian custodian; the name and address of the person or entity, if any, who arranged the placement; and the name and address of the prospective foster parents, if known at the time.

                § 23.127
                How is withdrawal of consent to a foster-care placement achieved?
                (a) The parent or Indian custodian may withdraw consent to voluntary foster-care placement at any time.
                (b) To withdraw consent, the parent or Indian custodian must file a written document with the court or otherwise testify before the court. Additional methods of withdrawing consent may be available under State law.
                (c) When a parent or Indian custodian withdraws consent to a voluntary foster-care placement, the court must ensure that the Indian child is returned to that parent or Indian custodian as soon as practicable.

                § 23.128
                How is withdrawal of consent to a termination of parental rights or adoption achieved?
                (a) A parent may withdraw consent to voluntary termination of parental rights at any time prior to the entry of a final decree of termination.
                (b) A parent or Indian custodian may withdraw consent to voluntary adoption at any time prior to the entry of a final decree of adoption.
                (c) To withdraw consent prior to the entry of a final decree of adoption, the parent or Indian custodian must file a written document with the court or otherwise testify before the court. Additional methods of withdrawing consent may be available under State law.
                (d) The court in which the withdrawal of consent is filed must promptly notify the person or entity who arranged any voluntary preadoptive or adoptive placement of such filing, and the Indian child must be returned to the parent or Indian custodian as soon as practicable.

              Dispositions

                § 23.129
                When do the placement preferences apply?

                (a) In any preadoptive, adoptive, or foster-care placement of an Indian child, the placement preferences specified in § 23.130 and § 23.131 apply.

                (b) Where a consenting parent requests anonymity in a voluntary proceeding, the court must give weight to the request in applying the preferences.
                (c) The placement preferences must be applied in any foster-care, preadoptive, or adoptive placement unless there is a determination on the record that good cause under § 23.132 exists to not apply those placement preferences.

                § 23.130
                What placement preferences apply in adoptive placements?
                (a) In any adoptive placement of an Indian child under State law, where the Indian child's Tribe has not established a different order of preference under paragraph (b) of this section, preference must be given in descending order, as listed below, to placement of the child with:
                (1) A member of the Indian child's extended family;
                (2) Other members of the Indian child's Tribe; or
                (3) Other Indian families.
                (b) If the Indian child's Tribe has established by resolution a different order of preference than that specified in ICWA, the Tribe's placement preferences apply.
                (c) The court must, where appropriate, also consider the placement preference of the Indian child or Indian child's parent.

                § 23.131
                What placement preferences apply in foster-care or preadoptive placements?
                (a) In any foster-care or preadoptive placement of an Indian child under State law, including changes in foster-care or preadoptive placements, the child must be placed in the least-restrictive setting that:
                (1) Most approximates a family, taking into consideration sibling attachment;
                (2) Allows the Indian child's special needs (if any) to be met; and
                (3) Is in reasonable proximity to the Indian child's home, extended family, or siblings.
                (b) In any foster-care or preadoptive placement of an Indian child under State law, where the Indian child's Tribe has not established a different order of preference under paragraph (c) of this section, preference must be given, in descending order as listed below, to placement of the child with:
                (1) A member of the Indian child's extended family;
                (2) A foster home that is licensed, approved, or specified by the Indian child's Tribe;
                (3) An Indian foster home licensed or approved by an authorized non-Indian licensing authority; or
                (4) An institution for children approved by an Indian Tribe or operated by an Indian organization which has a program suitable to meet the child's needs.
                (c) If the Indian child's Tribe has established by resolution a different order of preference than that specified in ICWA, the Tribe's placement preferences apply, so long as the placement is the least-restrictive setting appropriate to the particular needs of the Indian child, as provided in paragraph (a) of this section.
                (d) The court must, where appropriate, also consider the preference of the Indian child or the Indian child's parent.

                § 23.132
                How is a determination of “good cause” to depart from the placement preferences made?
                (a) If any party asserts that good cause not to follow the placement preferences exists, the reasons for that belief or assertion must be stated orally on the record or provided in writing to the parties to the child-custody proceeding and the court.
                (b) The party seeking departure from the placement preferences should bear the burden of proving by clear and convincing evidence that there is “good cause” to depart from the placement preferences.
                (c) A court's determination of good cause to depart from the placement preferences must be made on the record or in writing and should be based on one or more of the following considerations:
                (1) The request of one or both of the Indian child's parents, if they attest that they have reviewed the placement options, if any, that comply with the order of preference;

                (2) The request of the child, if the child is of sufficient age and capacity to understand the decision that is being made;
                (3) The presence of a sibling attachment that can be maintained only through a particular placement;
                (4) The extraordinary physical, mental, or emotional needs of the Indian child, such as specialized treatment services that may be unavailable in the community where families who meet the placement preferences live;
                (5) The unavailability of a suitable placement after a determination by the court that a diligent search was conducted to find suitable placements meeting the preference criteria, but none has been located. For purposes of this analysis, the standards for determining whether a placement is unavailable must conform to the prevailing social and cultural standards of the Indian community in which the Indian child's parent or extended family resides or with which the Indian child's parent or extended family members maintain social and cultural ties.
                (d) A placement may not depart from the preferences based on the socioeconomic status of any placement relative to another placement.
                (e) A placement may not depart from the preferences based solely on ordinary bonding or attachment that flowed from time spent in a non-preferred placement that was made in violation of ICWA.

              Access

                § 23.133
                Should courts allow participation by alternative methods?
                If it possesses the capability, the court should allow alternative methods of participation in State-court child-custody proceedings involving an Indian child, such as participation by telephone, videoconferencing, or other methods.

                § 23.134
                Who has access to reports and records during a proceeding?
                Each party to an emergency proceeding or a foster-care-placement or termination-of-parental-rights proceeding under State law involving an Indian child has a right to timely examine all reports and other documents filed or lodged with the court upon which any decision with respect to such action may be based.

                § 23.135
                [Reserved]

              Post-Trial Rights & Responsibilities

                § 23.136
                What are the requirements for vacating an adoption based on consent having been obtained through fraud or duress?
                (a) Within two years after a final decree of adoption of any Indian child by a State court, or within any longer period of time permitted by the law of the State, the State court may invalidate the voluntary adoption upon finding that the parent's consent was obtained by fraud or duress.
                (b) Upon the parent's filing of a petition to vacate the final decree of adoption of the parent's Indian child, the court must give notice to all parties to the adoption proceedings and the Indian child's Tribe and must hold a hearing on the petition.
                (c) Where the court finds that the parent's consent was obtained through fraud or duress, the court must vacate the final decree of adoption, order the consent revoked, and order that the child be returned to the parent.

                § 23.137
                Who can petition to invalidate an action for certain ICWA violations?
                (a) Any of the following may petition any court of competent jurisdiction to invalidate an action for foster-care placement or termination of parental rights under state law where it is alleged that 25 U.S.C. 1911, 1912, or 1913 has been violated:
                (1) An Indian child who is or was the subject of any action for foster-care placement or termination of parental rights;
                (2) A parent or Indian custodian from whose custody such child was removed; and
                (3) The Indian child's Tribe.
                (b) Upon a showing that an action for foster-care placement or termination of parental rights violated any provision of 25 U.S.C. 1911, 1912, or 1913, the court must determine whether it is appropriate to invalidate the action.

                (c) To petition for invalidation, there is no requirement that the petitioner's rights under ICWA were violated; rather, a petitioner may challenge the action based on any violations of 25 U.S.C. 1911, 1912, or 1913 during the course of the child-custody proceeding.

                § 23.138
                What are the rights to information about adoptees' Tribal affiliations?
                Upon application by an Indian who has reached age 18 who was the subject of an adoptive placement, the court that entered the final decree of adoption must inform such individual of the Tribal affiliations, if any, of the individual's biological parents and provide such other information necessary to protect any rights, which may include Tribal membership, resulting from the individual's Tribal relationship.

                § 23.139
                Must notice be given of a change in an adopted Indian child's status?
                (a) If an Indian child has been adopted, the court must notify, by registered or certified mail with return receipt requested, the child's biological parent or prior Indian custodian and the Indian child's Tribe whenever:
                (1) A final decree of adoption of the Indian child has been vacated or set aside; or
                (2) The adoptive parent has voluntarily consented to the termination of his or her parental rights to the child.
                (b) The notice must state the current name, and any former name, of the Indian child, inform the recipient of the right to petition for return of custody of the child, and provide sufficient information to allow the recipient to participate in any scheduled hearings.
                (c) A parent or Indian custodian may waive his or her right to such notice by executing a written waiver of notice and filing the waiver with the court.
                (1) Prior to accepting the waiver, the court must explain the consequences of the waiver and explain how the waiver may be revoked.
                (2) The court must certify that the terms and consequences of the waiver and how the waiver may be revoked were explained in detail in English (or the language of the parent or Indian custodian, if English is not the primary language), and were fully understood by the parent or Indian custodian.
                (3) Where confidentiality is requested or indicated, execution of the waiver need not be made in a session of court open to the public but still must be made before a court of competent jurisdiction in compliance with this section.
                (4) The biological parent or Indian custodian may revoke the waiver at any time by filing with the court a written notice of revocation.
                (5) A revocation of the right to receive notice does not affect any child-custody proceeding that was completed before the filing of the notice of revocation.

              Recordkeeping

                § 23.140
                What information must States furnish to the Bureau of Indian Affairs?
                (a) Any State court entering a final adoption decree or order in any voluntary or involuntary Indian-child adoptive placement must furnish a copy of the decree or order within 30 days to the Bureau of Indian Affairs, Chief, Division of Human Services, 1849 C Street NW, Mail Stop 3645 MIB, Washington, DC 20240, along with the following information, in an envelope marked “Confidential”:
                (1) Birth name and birthdate of the Indian child, and Tribal affiliation and name of the Indian child after adoption;
                (2) Names and addresses of the biological parents;
                (3) Names and addresses of the adoptive parents;
                (4) Name and contact information for any agency having files or information relating to the adoption;
                (5) Any affidavit signed by the biological parent or parents asking that their identity remain confidential; and
                (6) Any information relating to Tribal membership or eligibility for Tribal membership of the adopted child.
                (b) If a State agency has been designated as the repository for all State-court adoption information and is fulfilling the duties described in paragraph (a) of this section, the State courts in that State need not fulfill those same duties.
                [59 FR 2256, Jan. 13, 1994, as amended at 83 FR 55268, Nov. 5, 2018]

                § 23.141
                What records must the State maintain?
                (a) The State must maintain a record of every voluntary or involuntary foster-care, preadoptive, and adoptive placement of an Indian child and make the record available within 14 days of a request by an Indian child's Tribe or the Secretary.
                (b) The record must contain, at a minimum, the petition or complaint, all substantive orders entered in the child-custody proceeding, the complete record of the placement determination (including, but not limited to, the findings in the court record and the social worker's statement), and, if the placement departs from the placement preferences, detailed documentation of the efforts to comply with the placement preferences.
                (c) A State agency or agencies may be designated to be the repository for this information. The State court or agency should notify the BIA whether these records are maintained within the court system or by a State agency.

                § 23.142
                How does the Paperwork Reduction Act affect this subpart?

                The collections of information contained in this part have been approved by the Office of Management and Budget under 44 U.S.C. 3501 et seq. and assigned OMB Control Number 1076-0186. Response is required to obtain a benefit. A Federal agency may not conduct or sponsor, and you are not required to respond to, a collection of information unless the form or regulation requesting the information displays a currently valid OMB Control Number. Send comments regarding this collection of information, including suggestions for reducing the burden, to the Information Collection Clearance Officer—Indian Affairs, 1849 C Street NW., Washington, DC 20240.

              Effective Date

                § 23.143
                How does this subpart apply to pending proceedings?
                None of the provisions of this subpart affects a proceeding under State law for foster-care placement, termination of parental rights, preadoptive placement, or adoptive placement that was initiated prior to December 12, 2016, but the provisions of this subpart apply to any subsequent proceeding in the same matter or subsequent proceedings affecting the custody or placement of the same child.

              Severability

                § 23.144
                What happens if some portion of this part is held to be invalid by a court of competent jurisdiction?
                If any portion of this part is determined to be invalid by a court of competent jurisdiction, the other portions of the part remain in effect. For example, the Department has considered separately whether the provisions of this part apply to involuntary and voluntary proceedings; thus, if a particular provision is held to be invalid as to one type of proceeding, it is the Department's intent that it remains valid as to the other type of proceeding.

          Pt. 26
          PART 26—JOB PLACEMENT AND TRAINING PROGRAM

              Subpart A—General Applicability
              Sec.
              26.1
              What terms do I need to know?
              26.2
              Who authorizes this collection of information?
              26.3
              What is the purpose of the Job Placement and Training Program?
              26.4
              Who administers the Job Placement and Training Program?
              26.5
              Who may be eligible for Job Placement and Training?
              26.6
              Who is eligible to receive financial assistance?
              26.7
              How is financial need established?
              26.8
              Where do I go to apply for Job Placement and Training assistance?
              26.9
              How do I apply for assistance?
              26.10
              When will I find out if I have been selected for Job Placement and Training assistance?
              26.11
              What type of Job Placement and Training assistance may be approved?
              26.12
              Who provides the Job Placement and Training?
              26.13
              How long may I be in training and how long can I receive other assistance?
              26.14
              What or who is a service provider?
              26.15
              What makes an applicant eligible for Job Placement and Training services?
              26.16
              If I am awarded financial assistance, how much will I receive?
              26.17
              Can more than one family member be financially assisted at the same time?
              26.18

              What kinds of supportive services are available?

              26.19
              Will I be required to contribute financially to my employment and training goals?
              26.20
              Can I be required to return portions of my grant?
              26.21
              Can this program be combined with other similar programs for maximum benefit?
              26.22
              May a tribe integrate Job Placement and Training funds into its Public Law 102-477 Plan?
              26.23
              What is an Individual Self-Sufficiency Plan (ISP)?

              Subpart B—Job Placement Services
              26.24
              What is the scope of the Job Placement Program?
              26.25
              What constitutes a complete Job Placement Program application?
              26.26
              What job placement services may I receive?
              26.27
              What kind of job placement support services can I expect?
              26.28
              What follow-up services are available after I become employed?

              Subpart C—Training Services
              26.29
              What is the scope of the Job Training Program?
              26.30
              Does the Job Training Program provide part-time training or short-term training?
              26.31
              May I repeat my job training?
              26.32
              What constitutes a complete Job Training Program application?
              26.33
              How do I show that I need job training?
              26.34
              What type of job training assistance may be approved?
              26.35
              What kind of support services are available to me?
              26.36
              What follow-up service is available after I complete training?
              26.37
              Are there training standards that I must follow?

              Subpart D—Appeal by an Applicant
              26.38
              May I appeal a decision about my application?

            Authority:
            25 U.S.C. 13; Sec. 1, Public Law 84-959, 70 Stat. 966 as amended by Public Law 88-230, 77 Stat. 471 (25 U.S.C. 309)

            Source:
            74 FR 41331, Aug. 17, 2009, unless otherwise noted.

            Subpart A—General Applicability

              § 26.1
              What terms do I need to know?
              As used in this part:

                Bureau means the Bureau of Indian Affairs (BIA).

                Department means the Department of the Interior.

                Gainful Employment means work resulting in self-sufficiency.

                Indian means any person who is a member of a federally recognized tribe, including Alaska Natives.

                Individual Self-Sufficiency Plan (ISP) means a written plan designed to meet the goal of employment through specific actions that meet the needs of the individual. The plan is jointly developed and is signed by both the applicant and the servicing office. The ISP addresses the client's barriers to employment and a plan of action to address barriers.

                Must means a mandatory act or requirement.

                On or Near Reservation means those areas or communities adjacent or contiguous to reservations, or service areas where Job Training and Placement programs are provided upon approval of the Assistant Secretary-Indian Affairs or his designated representative. For purposes of this program and services, Alaska is included in this definition.

                On-the-Job-Training (OJT) means a written agreement for an employer to provide training to a participant who engages in productive work that provides knowledge or skills essential to the full and adequate performance of the job. The employer receives reimbursement from the Job Training Program for the wage rate of the participant. OJT may be used to meet the goal(s) in the participant's ISP, as long as it does not exceed 24 months.

                Permanent Employment means a year-round job or one that re-occurs seasonally, lasting at least 90 days per work season.

                Service Area means a location agreed to by the tribe with the Bureau to provide Job Training and Placement Services.

                Servicing Office means the Bureau office or the office of the tribal service provider that administers the Job Training and Placement Program.

                Tribal Governing Body means the recognized entity empowered to exercise governmental authority over a federally recognized tribe.

                Tribal Service Provider means a tribe or tribal organization that administers the Job Training and Placement Program pursuant to Public Law 93-638 or Public Law 102-477.

                Tribe means any tribal entity listed in the Federal Register notice that the Secretary of the Interior publishes under Public Law 103-454, 108 Stat. 4791.

                Underemployed means an individual who is working but whose income is insufficient to meet essential needs.

                Unemployed means an individual who is not currently working or employed.

                Unmet need means the difference between available resources and the cost associated with finding gainful employment.

                Vocational Training means technical training that leads to permanent and gainful employment.

                We, us, or our means the Secretary of the Interior, or an official in the Office of the Assistant Secretary—Indian Affairs, or an official in the Bureau of Indian Affairs to whom the Secretary has delegated authority.

              § 26.2
              Who authorizes this collection of information?
              The information collection requirements contained in this part have been approved by the Office of Management and Budget under the Paperwork Reduction Act of 1995, 44 U.S.C. 3507(d), and assigned OMB clearance number 1076-0062. Response is required to obtain a benefit. A Federal agency may not conduct or sponsor, and you are not required to respond to a collection of information unless the form or regulation requesting the information has a currently valid OMB Control Number.

              § 26.3
              What is the purpose of the Job Placement and Training Program?
              The purpose of the Job Placement and Training Program is to assist eligible applicants to obtain job skills and to find and retain a job leading to self-sufficiency.

              § 26.4
              Who administers the Job Placement and Training Program?
              The Job Placement and Training Program is administered by the Bureau of Indian Affairs or a tribal service provider. Tribes are encouraged to provide services directly to Indians by either entering into a Public Law 93-638 contract with the Bureau or a compact with the Office of Self—Governance. Tribes may also consolidate Job Placement and Training Program funds in accordance with the provisions of the Indian Employment, Training, and Related Services Demonstration Act of 1992, Public Law 102-477.

              § 26.5
              Who may be eligible for Job Placement and Training?
              You may apply for assistance for employment or training if all of the following criteria are met:
              (a) You meet the definition of Indian in § 26.1; and
              (b) You are residing on or near an Indian reservation or in a service area, or in the agreed contract service area; and
              (c) You are unemployed or underemployed or need and can benefit from employment assistance as determined by your servicing office; and
              (d) You complete an ISP.

              § 26.6
              Who is eligible to receive financial assistance?
              Financial assistance is only available to persons:
              (a) Approved for training that will lead to permanent, gainful and meaningful employment; or
              (b) Who have obtained a job and need financial assistance to retain the job, as determined by the servicing office.

              § 26.7
              How is financial need established?
              You must show that current income and other available resources are not sufficient to meet employment or training goals.

              § 26.8
              Where do I go to apply for Job Placement and Training assistance?
              You may apply for Job Placement and Training assistance at the servicing office nearest to your current residence.

              § 26.9
              How do I apply for assistance?
              (a) You should contact the BIA office or the tribal service provider which is nearest to your current residence to get an application form;
              (b) You must complete the application process as established by your servicing office; and

              (c) You must complete and sign a comprehensive ISP (or an individual development plan (IDP) or employment development plan (EDP), which are synonymous with an ISP).

              § 26.10
              When will I find out if I have been selected for Job Placement and Training assistance?
              (a) Your servicing office will notify you in writing within 30 calendar days once it receives a completed job training application request; or
              (b) Your servicing office will notify you within 5 business days once it has received a completed Job Placement application and written job offer.

              § 26.11
              What type of Job Placement and Training assistance may be approved?
              Services provided may include funding for employment, training or supplemental assistance that supports job placement or training activities (see subpart B of this part for Job Placement or subpart C of this part for Training Services).

              § 26.12
              Who provides the Job Placement and Training?
              The Bureau or a tribal service provider may enter into contracts or agreements to provide facilities and services required for vocational training programs with:
              (a) Indian tribal governing bodies or, when approved by the tribal service provider, other provider of meaningful training programs not currently operated by the tribe;
              (b) Appropriate Federal, State, or local government agencies;
              (c) Public or private schools with a recognized reputation in vocational education and successfully obtaining employment for graduates;
              (d) Education firms that operate residential training centers; and
              (e) Corporations and associations or small business establishments with apprenticeship or on-the-job training (OJT) programs leading to skilled employment.

              § 26.13
              How long may I be in training and how long can I receive other assistance?
              (a) Your training at any approved institution, apprenticeship, and/or OJT must not exceed 24 months of full-time actual training hours.
              (b) Registered nurse training must not exceed 36 months of full actual training hours.
              (c) You may receive other financial assistance under this program determined by your ISP that you have developed with your tribal service provider.

              § 26.14
              What or who is a service provider?
              A service provider is an administrative unit of a BIA Regional Office, a BIA Agency Office, a BIA Field Office, a Tribal contracted office, or Alaska Native federally recognized tribe, or a tribal organization, that provides grants to help offset the cost of vocational or technical training (at approved places), or immediate job placement services. To the extent resources will allow, other kinds of support service may also be available.

              § 26.15
              What makes an applicant eligible for Job Placement and Training services?
              You are eligible for services if:
              (a) You meet the definition of an American Indian or Alaska Native; and
              (b) Either:
              (1) You can demonstrate an unmet need and show a need for job training or placement services in order to become gainfully and meaningfully employed; or
              (2) You are skilled, but need financial assistance to get to a job, and you show an aptitude and potential to benefit from services.

              § 26.16
              If I am awarded financial assistance, how much will I receive?
              (a) The amount of financial assistance you receive depends on your unmet needs. If applicable, you should apply for:
              (1) A Pell Grant if your training institution offers this grant; and
              (2) Other education grants or loans for which you may qualify.
              (b) The Bureau or tribal service provider will award financial assistance up to the level of your unmet need to the extent resources are available. It is possible that the combination of available financial assistance will not equal your financial need.

              § 26.17
              Can more than one family member be financially assisted at the same time?
              Yes, more than one family member can be assisted, providing that each applicant is eligible.

              § 26.18
              What kinds of supportive services are available?
              The BIA or tribal service provider may provide, but is not limited to, the following supportive services:
              (a) Assistance in completing an application and the provision of supporting documents;
              (b) A description of the Job Placement and Training Program and related services;
              (c) An assessment of eligibility;
              (d) An assessment of need for employment services (or a combination of training and employment services);
              (e) The creation of an ISP (which may include training and other support services);
              (f) Counseling services that address cultural differences and strengthen probability of client success;
              (g) Referral to other appropriate services;
              (h) Youth work experience;
              (i) Tools for employment;
              (j) Initial union dues;
              (k) Transportation of household effects;
              (l) Security and safety deposits;
              (m) Items to improve personal appearance such as professional work clothing;
              (n) If required, kitchen and other household effects including bedding and appliances; and
              (o) Childcare.

              § 26.19
              Will I be required to contribute financially to my employment and training goals?
              Yes, the Job Placement and Training Program clients are required to seek other funding, including the use of personal resources as a condition of their ISP.

              § 26.20
              Can I be required to return portions of my grant?
              Yes, grants are awarded for a specific purpose as described in the applicant's ISP. If the funds cannot be spent according to the ISP, the unused portion must be returned to the service provider's job placement and training budget.

              § 26.21
              Can this program be combined with other similar programs for maximum benefit?
              Yes, combining this program with other programs is encouraged, to the extent that laws governing program services permit partnering with similar programs and resources.

              § 26.22
              May a tribe integrate Job Placement and Training funds into its Public Law 102-477 Plan?
              Yes, Indian tribes may integrate Job Placement and Training Program funds into their Public Law 102-477 Plan.

              § 26.23
              What is an Individual Self-Sufficiency Plan (ISP)?
              (a) An ISP is a document that:
              (1) Spells out the details necessary for a person to assume a meaningful job (usually within a reasonable period of time);
              (2) Supplements the application process and includes needed finances, special clothing, transportation, and support services necessary for employment;
              (3) Identifies all financial resources and defines the employment or training objective and activities planned to reach the objective; and
              (4) Outlines how the applicant will participate in job placement, where resources will allow.
              (b) The employer's job information and offer should be attached to the ISP, which becomes a part of the application (and supporting documents).
              (c) The ISP must indicate that the services received will meet the individual's and tribal goals.
              (d) Only one comprehensive ISP can be in effect for each applicant at one time. The comprehensive ISP should be coordinated and integrated with other programs offered by the servicing agency.

            Subpart B—Job Placement Services

              § 26.24
              What is the scope of the Job Placement Program?
              The Job Placement Program assists Indian people who have job skills to obtain and retain gainful employment leading to self-sufficiency.

              § 26.25
              What constitutes a complete Job Placement Program application?
              To be complete, a Job Placement Program application must contain all of the items required by this section.
              (a) An application signed by the applicant and servicing office representative.
              (b) An ISP, including a list of goods and services needed to get the applicant to the job, signed by the applicant and servicing representative.
              (c) An accepted official document that shows the formal relationship between the applicant and a federally recognized tribe or a document that shows an applicant's eligibility for services.
              (d) A statement by the service provider that the applicant has been declared eligible for services.
              (e) A financial statement that reflects the applicant's unmet need.
              (f) An employer certification that the applicant has been hired. The certification must include, at a minimum:
              (1) Job title;
              (2) Beginning date;
              (3) Beginning wage;
              (4) Date first full paycheck will be issued; and
              (5) Expected duration of the job.

              § 26.26
              What Job Placement services may I receive?
              As determined by the service provider, you may receive transportation to work for a limited period, funds to finalize your job resume, and job placement assistance.

              § 26.27
              What kind of Job Placement support services can I expect?
              Service office representatives will make the determination of what support services are necessary and to be funded. Examples of job placement support services include, but are not limited to resume preparation, interview techniques, job retention, and related living skills.

              § 26.28
              What follow-up services are available after I become employed?
              As determined by the service provider, the following type of services may be available: Temporary housing, transportation to work for a limited period of time, work clothing, and childcare.

            Subpart C—Training Services

              § 26.29
              What is the scope of the Job Training Program?
              A service provider may offer career counseling, assessment, recommend training institutions that properly prepare applicants for entry into their career field, and help prepare applicants for gainful employment to the extent program funding will allow and based on applicants' established need.

              § 26.30
              Does the Job Training Program provide part-time training or short-term training?
              Yes, part-time and short-term training are allowable provided the training assists individuals to develop skills necessary to acquire gainful employment, in accordance with the ISP, and depending upon availability of resources. Part-time means no less than six credit units per semester (based on a nine-month school year).

              § 26.31
              May I repeat my training?
              Eligibility for repeat training and other financial assistance will be determined by your tribal service provider.

              § 26.32
              What constitutes a complete Job Training Program application?
              A request for training includes:
              (a) Intake and application data;
              (b) Feasible, comprehensive ISP;
              (c) Tribal affiliation document;
              (d) Selective Service registration;
              (e) Selected place of training;
              (f) Statement of financial need;
              (g) Statement of eligibility; and
              (h) Applicant assessment or other documents as required by the servicing agency.

              § 26.33
              How do I show I need job training?
              The need for Job Placement and Training is shown by completing an application for training that demonstrates financial need.

              § 26.34
              What type of job training assistance may be approved?
              The following types of training that lead to gainful employment may be approved:
              (a) Nationally accredited vocational training;
              (b) Training and non-accredited vocational courses provided by a tribe;
              (c) Training programs not operated by the tribe but approved by the service provider;
              (d) Apprenticeship training supervised by a State apprenticeship agency or council or by the Federal Apprenticeship Training Service that is provided by a corporation or association that has been training bona fide apprentices for at least one year or any other apprenticeship program approved by the service provider; or
              (e) OJT offered by a public or private business.

              § 26.35
              What kind of support services are available to me?
              As determined by the service provider, training support services include, but are not limited to, stipends, transportation, and childcare.

              § 26.36
              What follow-up service is available after I complete training?
              Job Placement assistance may follow training.

              § 26.37
              Are there training standards that I must follow?
              Yes, students must maintain the minimum academic requirements and be in good standing as set forth by the training institute. If an applicant is separated from training for good cause, the applicant may be responsible for repaying any portion of misused funds.

            Subpart D—Appeal by an Applicant

              § 26.38
              May I appeal a decision about my application?
              If the servicing agency denies your application you may appeal under part 2 of this chapter by sending your appeal to your service provider. If your servicing agency is a tribal contractor, you should file your appeal with the tribal contractor under their established procedure. The letter informing you of the decision on your application will include information on how to appeal.

        SUBCHAPTER E—EDUCATION

          Pt. 30
          PART 30—ADEQUATE YEARLY PROGRESS (Eff. until 4-27-20)

            Sec.
            30.100
            What is the purpose of this part?
            30.101
            What definitions apply to terms in this part?

              Subpart A—Defining Adequate Yearly Progress
              30.102
              Does the Act require the Secretary of the Interior to develop a definition of AYP for Bureau-funded schools?
              30.103
              Did the Committee consider a separate Bureau definition of AYP?
              30.104
              What is the Secretary's definition of AYP?

                Alternative Definition of AYP
                30.105
                Can a tribal governing body or school board use another definition of AYP?
                30.106
                How does a tribal governing body or school board propose an alternative definition of AYP?
                30.107
                What must a tribal governing body or school board include in its alternative definition of AYP?
                30.108
                May an alternative definition of AYP use parts of the Secretary's definition?

                Technical Assistance
                30.109
                Will the Secretary provide assistance in developing an alternative AYP definition?
                30.110
                What is the process for requesting technical assistance to develop an alternative definition of AYP?
                30.111
                When should the tribal governing body or school board request technical assistance?

                Approval of Alternative Definition
                30.113
                How does the Secretary review and approve an alternative definition of AYP?

              Subpart B—Assessing Adequate Yearly Progress
              30.114
              Which students must be assessed?
              30.115
              Which students' performance data must be included for purposes of AYP?
              30.116
              If a school fails to achieve its annual measurable objectives, what other methods may it use to determine whether it made AYP?

              Subpart C—Failure To Make Adequate Yearly Progress
              30.117
              What happens if a Bureau-funded school fails to make AYP?
              30.118
              May a Bureau-funded school present evidence of errors in identification before it is identified for school improvement, corrective action, or restructuring?
              30.119
              Who is responsible for implementing required remedial actions at a Bureau-funded school identified for school improvement, corrective action or restructuring?
              30.120
              Are Bureau-funded schools exempt from school choice and supplemental services when identified for school improvement, corrective action, and restructuring?
              30.121
              What funds are available to assist schools identified for school improvement, corrective action, or restructuring?
              30.122
              Must the Bureau assist a school it identified for school improvement, corrective action, or restructuring?
              30.123
              What is the Bureau's role in assisting Bureau-funded schools to make AYP?
              30.124
              Will the Department of Education provide funds for schools that fail to meet AYP?
              30.125
              What happens if a State refuses to allow a school access to the State assessment?

              Subpart D—Responsibilities and Accountability
              30.126
              What is required for the Bureau to meet its reporting responsibilities?
              30.150
              Information Collection.

            Authority:
            Public Law 107-110, 115 Stat. 1425.

            Source:
            70 FR 22200, Apr. 28, 2005, unless otherwise noted.

            Effective Date Note:
            At 85 FR 17020, Mar. 26, 2020, part 30 was revised, effective Apr. 27, 2020. For the convenience of the user, the new part 30 follows the text of this part.

            § 30.100
            What is the purpose of this part?
            This part establishes for schools receiving Bureau funding a definition of “Adequate Yearly Progress (AYP).” Nothing in this part:

            (a) Diminishes the Secretary's trust responsibility for Indian education or any statutory rights in law;

            (b) Affects in any way the sovereign rights of tribes; or
            (c) Terminates or changes the trust responsibility of the United States to Indian tribes or individual Indians.

            § 30.101
            What definitions apply to terms in this part?

              Act means the No Child Left Behind Act, Public Law 107-110, enacted January 8, 2002. The No Child Left Behind Act reauthorizes and amends the Elementary and Secondary Education Act (ESEA) and amends the Education Amendments of 1978.

              Bureau means the Bureau of Indian Affairs in the Department of the Interior.

              Department means the Department of the Interior.

              OIEP means the Office of Indian Education Programs in the Bureau of Indian Affairs.

              School means a school funded by the Bureau of Indian Affairs.

              Secretary means the Secretary of the Interior or a designated representative.

              Secretaries means the Secretary of the Interior and the Secretary of Education.

            Subpart A—Defining Adequate Yearly Progress

              § 30.102
              Does the Act require the Secretary of the Interior to develop a definition of AYP for Bureau-funded schools?
              Yes, the Act requires the Secretary to develop a definition of AYP through negotiated rulemaking. In developing the Secretary's definition of AYP, the No Child Left Behind Negotiated Rulemaking Committee (Committee) considered a variety of options. In choosing the definition in § 30.104, the Committee in no way intended to diminish the Secretary's trust responsibility for Indian education or any statutory rights in law. Nothing in this part:
              (a) Affects in any way the sovereign rights of tribes; or
              (b) Terminates or changes the trust responsibility of the United States to Indian tribes or individual Indians.

              § 30.103
              Did the Committee consider a separate Bureau definition of AYP?
              Yes, the Committee considered having the Bureau of Indian Affairs develop a separate Bureau definition of AYP. For a variety of reasons, the Committee reached consensus on the definition in § 30.104. This definition is in no way intended to diminish the United States' trust responsibility for Indian education nor is it intended to give States authority over Bureau-funded schools.

              § 30.104
              What is the Secretary's definition of AYP?
              The Secretary defines AYP as follows. The definition meets the requirements in 20 U.S.C. 6311(b).
              (a) Effective in the 2005-2006 school year, the academic content and student achievement standards, assessments, and the definition of AYP are those of the State where the school is located, unless an alternative definition of AYP is proposed by the tribal governing body or school board and approved by the Secretary.
              (1) If the geographic boundaries of the school include more than one State, the tribal governing body or school board may choose the State definition it desires. Such decision shall be communicated to the Secretary in writing.
              (2) This section does not mean that the school is under the jurisdiction of the State for any purpose, rather a reference to the State is solely for the purpose of using the State's assessment, academic content and student achievement standards, and definition of AYP.
              (3) The use of the State's definition of AYP does not diminish or alter the Federal Government's trust responsibility for Indian education.
              (b) School boards or tribal governing bodies may seek a waiver that may include developing their own definition of AYP, or adopting or modifying an existing definition of AYP that has been accepted by the Department of Education. The Secretary is committed to providing technical assistance to a school, or a group of schools, to develop an alternative definition of AYP.

              Alternative Definition of AYP

                § 30.105
                May a tribal governing body or school board use another definition of AYP?
                Yes. A tribal governing body or school board may waive all or part of the Secretary's definition of academic content and achievement standards, assessments, and AYP. However, unless an alternative definition is approved under § 30.113, the school must use the Secretary's definition of academic content and achievement standards, assessments, and AYP.

                § 30.106
                How does a tribal governing body or school board propose an alternative definition of AYP?
                If a tribal governing body or school board decides that the definition of AYP in § 30.104 is inappropriate, it may decide to waive all or part of the definition. Within 60 days of the decision to waive, the tribal governing body or school board must submit to the Secretary a proposal for an alternative definition of AYP. The proposal must meet the requirements of 20 U.S.C. 6311(b) and 34 CFR 200.13-200.20, taking into account the unique circumstances and needs of the school or schools and the students served.

                § 30.107
                What must a tribal governing body or school board include in its alternative definition of AYP?
                (a) An alternative definition of AYP must meet the requirements of 20 U.S.C. 6311(b)(2) of the Act and 34 CFR 200.13-200.20, taking into account the unique circumstances and needs of the school or schools and the students served.
                (b) In accordance with 20 U.S.C. 6311(b) of the Act and 34 CFR 200.13-200.20, an alternative definition of AYP must:
                (1) Apply the same high standards of academic achievement to all students;
                (2) Be statistically valid and reliable;
                (3) Result in continuous and substantial academic improvement for all students;
                (4) Measure the progress of all students based on a high-quality assessment system that includes, at a minimum, academic assessments in mathematics and reading or language arts;
                (5) Measure progress separately for reading or language arts and for mathematics;
                (6) Unless disaggregation of data cannot yield statistically reliable information or reveals personally identifiable information, apply the same annual measurable objectives to each of the following:
                (i) The achievement of all students; and
                (ii) The achievement of economically disadvantaged students, students from major racial or ethnic groups, students with disabilities, and students with limited English proficiency;
                (7) Establish a starting point;
                (8) Create a timeline to ensure that all students are proficient by the 2013-2014 school year;
                (9) Establish annual measurable objectives;
                (10) Establish intermediate goals;
                (11) Include at least one other academic indicator which, for any school with a 12th grade, must be graduation rate; and
                (12) Ensure that at least 95 percent of the students enrolled in each group under § 30.107(b)(6) are assessed.
                (c) If a Bureau-funded school's alternative definition of AYP does not use a State's academic content and student achievement standards and academic assessments, the school must include with its alternative definition the academic standards and assessment it proposes to use. These standards and assessments must meet the requirements in 20 U.S.C. 6311(b) and 34 CFR 200.1-200.9.

                § 30.108
                May an alternative definition of AYP use parts of the Secretary's definition?
                Yes, a tribal governing body or school board may take part of the Secretary's definition and propose to waive the remainder. The proposed alternative definition of AYP must, however, include both the parts of the Secretary's AYP definition the tribal governing body or school board is adopting and those parts the tribal governing body or school board is proposing to change.

              Technical Assistance

                § 30.109
                Will the Secretary provide assistance in developing an alternative AYP definition?
                Yes, the Secretary through the Bureau, shall provide technical assistance either directly or through contract to the tribal governing body or the school board in developing an alternative AYP definition. A tribal governing body or school board needing assistance must submit a request to the Director of OIEP under § 30.110. In providing assistance, the Secretary may consult with the Secretary of Education and may use funds supplied by the Secretary of Education in accordance with 20 U.S.C. 7301.

                § 30.110
                What is the process for requesting technical assistance to develop an alternative definition of AYP?
                (a) The tribal governing body or school board requesting technical assistance to develop an alternative definition of AYP must submit a written request to the Director of OIEP, specifying the form of assistance it requires.
                (b) The Director of OIEP must acknowledge receipt of the request for technical assistance within 10 days of receiving the request.
                (c) No later than 30 days after receiving the original request, the Director of OIEP will identify a point of contact. This contact will immediately begin working with the tribal governing body or school board to jointly develop the specifics of the technical assistance, including identifying the form, substance, and timeline for the assistance.

                § 30.111
                When should the tribal governing body or school board request technical assistance?
                In order to maximize the time the tribal governing body or school board has to develop an alternative definition of AYP and to provide full opportunity for technical assistance, the tribal governing body or school board should request technical assistance before formally notifying the Secretary of its intention to waive the Secretary's definition of AYP.

              Approval of Alternative Definition

                § 30.113
                How does the Secretary review and approve an alternative definition of AYP?
                (a) The tribal governing body or school board submits a proposed alternative definition of AYP to the Director, OIEP within 60 days of its decision to waive the Secretary's definition.
                (b) Within 60 days of receiving a proposed alternative definition of AYP, OIEP will notify the tribal governing body or the school board of:
                (1) Whether the proposed alternative definition is complete; and
                (2) If the definition is complete, an estimated timetable for the final decision.
                (c) If the proposed alternative definition is incomplete, OIEP will provide the tribal governing body or school board with technical assistance to complete the proposed alternative definition of AYP, including identifying what additional items are necessary.
                (d) The Secretaries will review the proposed alternative definition of AYP to determine whether it is consistent with the requirements of 20 U.S.C. 6311(b). This review must take into account the unique circumstances and needs of the schools and students.
                (e) The Secretaries shall approve the alternative definition of AYP if it is consistent with the requirements of 20 U.S.C. 6311(b), taking into consideration the unique circumstances and needs of the school or schools and the students served.
                (f) If the Secretaries approve the alternative definition of AYP:
                (1) The Secretary shall promptly notify the tribal governing body or school board; and
                (2) The alternate definition of AYP will become effective at the start of the following school year.
                (g) The Secretaries will disapprove the alternative definition of AYP if it is not consistent with the requirements of 20 U.S.C. 6311(b). If the alternative definition is disapproved, the tribal governing body or school board will be notified of the following:
                (1) That the definition is disapproved; and

                (2) The reasons why the proposed alternative definition does not meet the requirements of 20 U.S.C. 6311(b).
                (h) If the Secretaries deny a proposed definition under paragraph (g) of this section, they shall provide technical assistance to overcome the basis for the denial.

            Subpart B—Assessing Adequate Yearly Progress

              § 30.114
              Which students must be assessed?
              All students in grades three through eight and at least once in grades ten through twelve who are enrolled in a Bureau-funded school must be assessed.

              § 30.115
              Which students' performance data must be included for purposes of AYP?
              The performance data of all students assessed pursuant to § 30.114 must be included for purposes of AYP if the student is enrolled in a Bureau-funded school for a full academic year as defined by the Secretary or by an approved alternative definition of AYP.

              § 30.116
              If a school fails to achieve its annual measurable objectives, what other methods may it use to determine whether it made AYP?
              A school makes AYP if each group of students identified in § 30.107(b)(6) meets or exceeds the annual measurable objectives and participation rate identified in §§ 30.107(b)(9) and 30.107(b)(12) respectively, and the school meets the other academic indicators identified in § 30.107(b)(11). If a school fails to achieve its annual measurable objectives for any group identified in § 30.107(b)(6), there are two other methods it may use to determine whether it made AYP:
              (a) Method A—“Safe Harbor.” Under “safe harbor,” the following requirements must be met for each group referenced under § 30.107(b)(6) that does not achieve the school's annual measurable objectives:
              (1) In each group that does not achieve the school's annual measurable objectives, the percentage of students who were below the “proficient” level of academic achievement decreased by at least 10 percent from the preceding school year; and
              (2) The students in that group made progress on one or more of the other academic indicators; and
              (3) Not less than 95 percent of the students in that group participated in the assessment.
              (b) Method B—Uniform Averaging Procedure. A school may use uniform averaging. Under this procedure, the school may average data from the school year with data from one or two school years immediately preceding that school year and determine if the resulting average makes AYP.

            Subpart C—Failure To Make Adequate Yearly Progress

              § 30.117
              What happens if a Bureau-funded school fails to make AYP?

                  Number of yrs of failing to make AYP in same academic subject
                  Status
                  Action required by entity operating school for the following school year

                  1st year of failing AYP
                  No status change
                  Analyze AYP data and consider consultation with outside experts.

                  2nd year of failing AYP
                  School improvement, year one
                  Develop a plan or revise an existing plan for school improvement in consultation with parents, school staff and outside experts.

                  3rd year of failing AYP
                  School Improvement, year two
                  Continue revising or modifying the plan for school improvement in consultation with parents, school staff and outside experts.

                  4th year of failing AYP
                  Corrective Action
                  Implement at least one of the six corrective actions steps found in 20 U.S.C. 6316(b)(7)(C)(iv).

                  5th year of failing AYP
                  Planning to Restructure
                  Prepare a restructuring plan and make arrangements to implement the plan.

                  6th year of failing AYP
                  Restructuring
                  Implement the restructuring plan no later than the beginning of the school year following the year in which it developed the plan.

                  7th year (and beyond) of failing AYP
                  Restructuring
                  Continue implementation of the restructuring plan until AYP is met for two consecutive years.

              § 30.118
              May a Bureau-funded school present evidence of errors in identification before it is identified for school improvement, corrective action, or restructuring?
              Yes. The Bureau must give such a school the opportunity to review the data on which the bureau would identify a school for improvement, and present evidence as set out in 20 U.S.C. 6316(b)(2).

              § 30.119
              Who is responsible for implementing required remedial actions at a Bureau-funded school identified for school improvement, corrective action or restructuring?
              (a) For a Bureau-operated school, implementation of remedial actions is the responsibility of the Bureau.
              (b) For a tribally operated contract school or grant school, implementation of remedial actions is the responsibility of the school board of the school.

              § 30.120
              Are Bureau-funded schools exempt from offering school choice and supplemental educational services when identified for school improvement, corrective action, and restructuring?
              Yes, Bureau-funded schools are exempt from offering public school choice and supplemental educational services when identified for school improvement, corrective action, and restructuring.

              § 30.121
              What funds are available to assist schools identified for school improvement, corrective action, or restructuring?
              From fiscal year 2004 to fiscal year 2007, the Bureau will reserve 4 percent of its title I allocation to assist Bureau-funded schools identified for school improvement, corrective action, and restructuring.
              (a) The Bureau will allocate at least 95 percent of funds under this section to Bureau-funded schools identified for school improvement, corrective action, and restructuring to carry out those schools' responsibilities under 20 U.S.C. 6316(b). With the approval of the school board the Bureau may directly provide for the remedial activities or arrange for their provision through other entities such as school support teams or educational service agencies.
              (b) In allocating funds under this section, the Bureau will give priority to schools that:
              (1) Are the lowest-achieving schools;
              (2) Demonstrate the greatest need for funds; and
              (3) Demonstrate the strongest commitment to ensuring that the funds enable the lowest-achieving schools to meet progress goals in the school improvement plans.
              (c) Funds reserved under this section must not decrease total funding under title I, part A of the Act, for any school below the level for the preceding year. To the extent that reserving funds under this section would reduce the title I, part A dollar amount of any school below the amount of title I, part A dollars the school received the previous year, the Secretary is authorized to reduce the title I, part A allocations of those schools receiving an increase in the title I, part A funds over the previous year to create the 4 percent reserve. This section does not authorize a school to receive title I, part A dollars it is not otherwise eligible to receive.
              (d) The Bureau will publish in the Federal Register a list of schools receiving funds under this section.

              § 30.122
              Must the Bureau assist a school it identified for school improvement, corrective action, or restructuring?
              Yes, if a Bureau-funded school is identified for school improvement, corrective action, or restructuring, the Bureau must provide technical or other assistance described in 20 U.S.C. 6316(b)(4) and 20 U.S.C. 6316(g)(3) .

              § 30.123
              What is the Bureau's role in assisting Bureau-funded schools to make AYP?
              The Bureau must provide support to all Bureau-funded schools to assist them in achieving AYP. This includes technical assistance and other forms of support.

              § 30.124
              Will the Bureau apply for funds that are available to help schools that fail to meet AYP?
              Yes, to the extent that Congress appropriates other funds to assist schools not meeting AYP, the Bureau will apply to the Department of Education for these funds.

              § 30.125
              What happens if a State refuses to allow a school access to the State assessment?
              (a) The Department will work directly with State officials to assist schools in obtaining access to the State's assessment. This can include direct communication with the Governor of the State. A Bureau-funded school may, if necessary, pay a State for access to its assessment tools and scoring services.
              (b) If a State does not provide access to the State's assessment, the Bureau-funded school must submit a waiver for an alternative definition of AYP.

            Subpart D—Responsibilities and Accountability

              § 30.126
              What is required for the Bureau to meet its reporting responsibilities?
              The Bureau has the following reporting responsibilities to the Department of Education, appropriate Committees of Congress, and the public.
              (a) In order to provide information about annual progress, the Bureau must obtain from all Bureau-funded schools the results of assessments administered for all tested students, special education students, students with limited English proficiency, and disseminate such results in an annual report.
              (b) The Bureau must identify each school that did not meet AYP in accordance with the school's AYP definition.
              (c) Within its annual report to Congress, the Secretary shall include all of the reporting requirements of 20 U.S.C. 6316(g)(5).

              § 30.150
              Information collection.

              Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)(PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This part involves collections of information subject to the PRA in §§ 30.104(a)(1), 30.104(b), 30.106, 30.107, 30.110, and 30.118. These collections have been approved by OMB under control number 1076-0163.
              Pt. 30, Nt.

                Effective Date Note:
                At 85 FR 17020, Mar. 26, 2020, part 30 was revised, effective Apr. 27, 2020. For the convenience of the user, the revised text is set forth as follows:

                    PART 30—STANDARDS, ASSESSMENTS, AND ACCOUNTABILITY SYSTEM (Eff. 4-27-20)

                      Sec.
                      30.100
                      What is the purpose of this part?
                      30.101
                      What definitions apply to terms in this part?

                        Subpart A—Standards, Assessments, and Accountability System Requirements
                        30.102
                        What does the Act require of the Secretary?
                        30.103
                        How will the Secretary implement Standards, Assessments and Accountability System requirements?
                        30.104
                        How will the Secretary implement requirements for standards?
                        30.105
                        How will the Secretary implement requirements for academic content assessments?
                        30.106
                        How will the Secretary provide for the inclusion of all students in assessments?
                        30.107
                        How will the Secretary include students with disabilities in assessments?
                        30.108
                        How will the Secretary provide for alternate assessments for students with the most significant cognitive disabilities?
                        30.109
                        How will the Secretary include English learners in academic content assessments?
                        30.110
                        How will the Secretary ensure BIE-funded schools will provide for annual assessments of English language proficiency for English learners?
                        30.111
                        How will the Secretary implement requirements for an accountability system?

                        Subpart B—Accountability, Waiver of Requirements, Technical Assistance, and Approval of Proposals for Alternative Requirements
                        30.112
                        May a tribal governing body or school board waive the Secretary's requirements for standards, assessments, and an accountability system?
                        30.113
                        How does a tribal governing body or school board waive the Secretary's requirements?
                        30.114

                        What should a tribal governing body or school board include in a proposal for alternative requirements?

                        30.115
                        May proposed alternative requirements use parts of the Secretary's requirements?
                        30.116
                        Will the Secretary provide technical assistance to tribal governing bodies or school boards seeking to develop alternative requirements?
                        30.117
                        What is the process for requesting technical assistance?
                        30.118
                        When should the tribal governing body or school board request technical assistance?
                        30.119
                        How does the Secretary review and approve alternative requirements?

                        Subpart C—Support and Improvement
                        30.120
                        How will the Secretary notify BIE-funded schools that they have been identified for school support and improvement activities?
                        30.121
                        How will the Secretary implement requirements for comprehensive support and improvement activities?
                        30.122
                        How will the Secretary implement requirements for targeted support and improvement activities?
                        30.123
                        How will the Secretary implement requirements to identify schools for additional targeted support?
                        30.124
                        How will the Secretary implement continued support for Bureau-funded schools and school improvement?

                        Subpart D—Responsibilities and Accountability
                        30.125
                        What is required for the Bureau to meet its reporting responsibilities?
                        30.126
                        What information collections have been approved?

                      Authority:

                      Pub. L. 114-94, 129 Stat. 1312, 20 U.S.C. 6311 et. seq.; 20 U.S.C. 7824(c).

                      § 30.100
                      What is the purpose of this part?
                      (a) This part establishes regulations regarding standards, assessments, and an accountability system at BIE-funded schools consistent with section 1111 of the Elementary and Secondary Education Act of 1965. The Act requires the Secretary to develop or implement requirements for standards, assessments, and an accountability system for BIE-funded schools.

                      (b) Nothing in this part may be construed to affect, modify, or diminish the sovereign rights of Indian Tribes; statutory rights under law, including the right to use Native American languages as a medium of instruction as described in the Native American Languages Act, Public Law 101-477; the Secretary's trust responsibility for Indian education; nor the trust responsibility of the United States to Indian Tribes or individual Indians. In carrying out the education mission of the Department, the BIE has an obligation to provide for a comprehensive multicultural and multilingual education program including the production and use of instructional materials, culturally appropriate methodologies and teaching and learning strategies that will reinforce, preserve, and maintain Indian and Alaska Native languages, cultures, and histories which school boards, Tribes and Alaska Native entities may utilize at their discretion.
                      (c) In carrying out activities under this part, the Secretary will be guided by the policies stated in 25 CFR part 32.

                      § 30.101
                      What definitions apply to terms in this part?

                        Act means the Elementary and Secondary Education Act of 1965, as amended by the Every Student Succeeds Act, Public Law 114-95, enacted December 10, 2015.

                        Agency Plan means a BIE document that will provide Indian Tribes, parents, and stakeholders with quality, transparent information about how standards, assessments, and an accountability system will be implemented at a BIE-funded school.

                        BIE-funded school(s) means a school funded by the Bureau of Indian Education and includes Bureau-operated schools and tribally controlled schools.

                        Bureau or BIE means the Bureau of Indian Education.

                        Bureau-operated school means a school operated by the Bureau of Indian Education.

                        Department means the Department of the Interior.

                        Director means the Director of the Bureau of Indian Education.

                        English learner means an individual:
                      (1) Who is aged three (3) through twenty-one (21);
                      (2) Who is enrolled or preparing to enroll in an elementary school or secondary school;
                      (3)(i) Who was not born in the United States or whose native language is a language other than English;
                      (ii)(A) Who is a Native American or Alaska Native, or a native resident of the outlying areas; and
                      (B) Who comes from an environment where a language other than English has had a significant impact on the individual's level of English language proficiency; or
                      (iii) Who is migratory, whose native language is a language other than English, and who comes from an environment where a language other than English is dominant; and
                      (4) Whose difficulties in speaking, reading, writing, or understanding the English language may be sufficient to deny the individual;
                      (i) The ability to meet the challenging academic standards;
                      (ii) The ability to successfully achieve in classrooms where the language of instruction is English; or

                      (iii) The opportunity to participate fully in society.

                      (5) This definition is not intended to affect the right to use Native American language as a medium of instruction.

                        Foster care means 24-hour substitute care for children placed away from their parents and for whom the agency under title IV-E of the Social Security Act has placement and care responsibility. This includes, but is not limited to, placements in foster family homes, foster homes of relatives, group homes, emergency shelters, residential facilities, child care institutions, and pre-adoptive homes. A child is in foster care in accordance with this definition regardless of whether the foster care facility is licensed and payments are made by the State, tribal, or local agency for the care of the child, whether adoption subsidy payments are being made prior to the finalization of an adoption, or whether there is Federal matching of any payments that are made.

                        Native American language means the historical, traditional languages spoken by members of federally recognized Indian Tribes, as defined in 25 U.S.C. 2021(20).

                        Peer review means, for purposes of this part, the process through which an entity demonstrates the technical soundness of an assessment system, including its validity and reliability for the purposes for which the assessments are intended.

                        Proposal for alternative requirements means a proposal submitted by a tribal governing body or school board for requirements, in whole or in part, alternative to the ones adopted by the Secretary for standards, assessments, or an accountability system at BIE-funded schools except that an alternative proposal for a Bureau-operated school does not include any actions that would affect BIE's authority over inherently Federal functions as defined in 25 U.S.C. 2021(12).

                        Secretary means the Secretary of the Interior or a designated representative.

                        School board means, with respect to waiver and submission of alternative proposals for a BIE-funded school, either an “agency school board' as defined in 25 U.S.C. 2021(1), or a “local school board” as defined in 25 U.S.C. 2021(14).

                        School year means the academic school year as described by a school in the BIE's student information system.

                        Subgroup of students means:
                      (1) Economically disadvantaged students;
                      (2) Students from major racial and ethnic groups;
                      (3) Children with disabilities; and
                      (4) English learners.

                        Technical assistance means with regard to:
                      (1) Comprehensive or targeted support and improvement or additional targeted support, subject to the availability of appropriations, assistance from the BIE to address issues impacting a school's or one or more subgroups within a school's ability to meet the BIE's academic goals and indicators developed or implemented in accordance with this part, including assistance to extend technical capabilities and training opportunities;
                      (2) Proposals for alternative requirements, technical assistance means, subject to the availability of appropriations, assistance from the BIE and the Department of Education in the development of alternative requirements for standards, assessments, and an accountability system in part or in whole, including assistance in understanding what options may be available to enhance the exercise of sovereignty in education and address the unique circumstances and needs of BIE-funded schools and the students served at such schools.
                      (3) English language proficiency assessments and alternate English language proficiency assessments, assistance including training teachers on how to administer such assessments.

                        Tribal consultation means consultation conducted in accordance with the tribal consultation policy of the Department of the Interior.

                        Tribal governing body means with respect to waiver and submission of alternative proposals for:
                      (1) Tribally controlled schools, the entity authorized under applicable tribal law to waive the Secretary's requirements and propose alternative requirements; and
                      (2) A BIE-operated school, the recognized governing body of the Indian Tribe involved that represents at least ninety (90) percent of the students served by such school.

                        Tribally controlled school means, for the purposes of this part, a school operated under a Public Law 93-638 contract or Public Law 100-297 grant that is:
                      (1) Operated by an Indian Tribe or a tribal organization, enrolling students in Kindergarten through grade twelve (12) of schools that may have varying structure, including a preschool;
                      (2) Not a local education agency as defined in 25 U.S.C. 2511(5); and
                      (3) Not directly administered by the Bureau of Indian Education.

                        Waiver means the exercise of authority by a tribal governing body or school board for a BIE-funded school to elect to implement requirements, in part or in whole, alternative to the ones adopted by the Secretary pursuant to this part at schools that are under the tribal governing body's or school board's jurisdiction following approval of the proposal for alternative requirements by the Secretary and the Secretary of Education pursuant to section 8204 of the Act, except that a tribal governing body's decision to exercise waiver authority under this part takes priority over a school board decision to exercise waiver authority under this part.

                      Subpart A—Standards, Assessments, and Accountability System Requirements

                        § 30.102
                        What does the Act require of the Secretary?
                        (a) The Act requires the Secretary to define standards, assessments, and accountability system, consistent with section 1111 of the Act, for schools on a national, regional, or tribal basis, as appropriate, taking into account the unique circumstances and needs of the schools and the students served, using regulations developed through a negotiated rulemaking process.
                        (b) If a tribal governing body or school board determines that the requirements described in paragraph (a) of this section are inappropriate, it may waive these requirements, in part or in whole, and propose alternative requirements for standards, assessments, and an accountability system that meets the requirements of section 1111 of the Act, taking into account the unique circumstances and needs of the school or schools and the students served by such schools.
                        (c) The Secretary and the Secretary of Education will provide technical assistance, upon request, either directly or through a contract, to a tribal governing body or school board that seeks a waiver and alternative requirements described in paragraph (b) of this section.

                        § 30.103
                        How will the Secretary implement Standards, Assessments, and Accountability System requirements?
                        (a) The Secretary, through the Director, must describe requirements for standards, assessments, and an accountability system for use at BIE-funded schools in accordance with this part. The Director must periodically review and revise these requirements, as necessary, but review will occur not less often than every four (4) years beginning with the school year for which the requirements become effective.
                        (b) The Director will develop an Agency Plan that will provide Indian Tribes, schools, parents, and other stakeholders with quality, transparent information about how the Act will be implemented at BIE-funded schools, including the requirements that have been established for standards, assessments, and an accountability system for BIE-funded schools.
                        (c) The Secretary will engage in meaningful consultation with Indian Tribes and Alaska Native Villages, schools, parents, and other stakeholders, when developing and revising requirements for standards, assessments, and an accountability system for BIE-funded schools.
                        (d) The Secretary may voluntarily partner with States, or another Federal agency, in the development of challenging academic standards and assessments.

                        § 30.104
                        How will the Secretary implement requirements for standards?
                        (a) The Secretary will implement requirements for academic standards for BIE-funded schools by adopting:
                        (1) Challenging academic content standards; and
                        (2) Aligned academic achievement standards consisting of at least three levels of achievement defined in the Agency Plan.
                        (b) Combined, both academic content standards and academic achievement standards are hereinafter collectively referred to as “challenging academic standards.”
                        (c) The academic content standards will apply to all BIE-funded schools and the students served at those schools. Such academic content standards will include:
                        (1) Mathematics;
                        (2) Reading or Language Arts;
                        (3) Science;
                        (4) Tribal civics, as appropriations become available; and
                        (5) Any other subject determined by the Secretary.
                        (d) The academic content standards must be aligned to entrance requirements for credit-bearing coursework in higher education and relevant career and technical education standards.
                        (e) The Secretary must, through a documented and validated standards-setting process, adopt alternate academic achievement standards for students with the most significant cognitive disabilities that:
                        (1) Are aligned with the challenging academic content standards under paragraphs (a) and (b) of this section;

                        (2) Promote access to the general education curriculum, consistent with the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. 1400 et seq.);
                        (3) Reflect professional judgment as to the highest possible standards achievable by the students;
                        (4) Are designated in the individualized education program developed under section 614(d)(3) of IDEA (20 U.S.C. 1414(d)(3)) for each such student as the academic achievement standards that will be used for the student; and
                        (5) Are aligned to ensure that a student who meets the alternate academic achievement standards is on track to pursue postsecondary education or competitive integrated employment, consistent with the purposes of the Rehabilitation Act of 1973, as amended by the Workforce Innovation and Opportunity Act, as in effect on July 22, 2014.
                        (f) The Secretary will adopt English language proficiency standards that:

                        (1) Are derived from the four (4) recognized domains of speaking, listening, reading, and writing;

                        (2) Address the different proficiency levels of English learners; and
                        (3) Are aligned with the challenging academic standards.

                        § 30.105
                        How will the Secretary implement requirements for academic content assessments?
                        (a) Academic assessments. The BIE will implement a set of high quality student academic assessments in mathematics, reading or language arts, and science. As appropriations become available, BIE will implement an assessment in tribal civics.
                        (b) Requirements for academic assessments. The academic assessments must:
                        (1) Except with respect to alternate assessments for students with the most significant cognitive disabilities, be:
                        (i) The same academic assessments used to measure the achievement of all BIE-funded school students; and
                        (ii) Administered to all BIE-funded school students, including the following highly-mobile student populations:
                        (A) Students with status as a migratory child;
                        (B) Students with status as a homeless child or youth;
                        (C) Students with status as a child in foster care;
                        (D) Students with status as a student with a parent who is a member of the armed forces on active duty or serves on full-time National Guard duty;
                        (2) Be aligned with the BIE's challenging academic standards, and provide coherent and timely information about student attainment of such standards and whether the student is performing at the student's grade level;
                        (3) Be used for purposes for which such assessments are valid and reliable, consistent with relevant, nationally recognized professional and technical testing standards; objectively measure academic achievement, knowledge, and skills; and use tests that do not evaluate or assess personal or family beliefs and attitudes, or publicly disclose personally identifiable information, except that this provision does not preclude the use of:
                        (i) Constructed-response, short answer, or essay questions; or
                        (ii) Items that require a student to analyze a passage of text or to express opinions;
                        (4) Be of adequate technical quality for each purpose required under the Act and consistent with the requirements of this section, the evidence of which will be made public, including on the BIE website;
                        (5) Be administered:
                        (i) In the case of mathematics and reading or language arts:
                        (A) In each of grades three (3) through eight (8); and
                        (B) At least once in grades nine (9) through twelve (12);
                        (ii) In the case of science, not less than one time during:
                        (A) Grades three (3) through five (5);
                        (B) Grades six (6) through nine (9); and
                        (C) Grades ten (10) through twelve (12); and
                        (iii) In the case of any other subject chosen by the BIE, at the discretion of the BIE;
                        (6) Involve multiple up-to-date measures of student academic achievement, including measures that assess higher-order thinking skills, such as critical thinking, reasoning, analysis, complex problem solving, effective communication, and understanding of challenging content, which may:
                        (i) Include valid and reliable measures of student academic growth at all achievement levels to help ensure that the assessment results could be used to improve student instruction; and
                        (ii) Be partially delivered in the form of portfolios, projects, or extended performance tasks;
                        (7) At the BIE's discretion, be administered through:
                        (i) A single summative assessment; or
                        (ii) Multiple Bureau-wide interim assessments during the course of the academic year that result in a single summative score that provides valid, reliable, and transparent information on student achievement or growth;
                        (8) Produce individual student interpretive, descriptive, and diagnostic reports, consistent with paragraph (b)(3) of this section, regarding achievement on such assessments that allow parents, teachers, principals, and other school leaders to understand and address the specific academic needs of students, and that are provided to parents, teachers, and school leaders, as soon as is practicable after the assessment is given, in an understandable and uniform format, and to the extent practicable, in a language that parents can understand;
                        (9) Enable results to be disaggregated:
                        (i) Within the Bureau and each BIE-funded school by:
                        (A) Each major racial and ethnic group;
                        (B) Economically disadvantaged students as compared to students who are not economically disadvantaged;
                        (C) Children with disabilities as defined in section 602(3) of the IDEA compared to children without disabilities;
                        (D) English proficiency status;
                        (E) Gender;
                        (F) Migrant status;
                        (G) Status as a homeless child or youth as defined in section 725(2) of title VII, subtitle B of the McKinney-Vento Homeless Assistance Act, as amended;
                        (H) Status as a child in foster care; and

                        (I) Status as a student with a parent who is a member of the armed forces on active duty or serves on full-time National Guard duty.

                        (ii) Disaggregation is not required in the cases in which the number of students in a subgroup is insufficient to yield statistically reliable information or the results would reveal personally identifiable information about an individual student;
                        (10) Enable itemized score analyses to be produced and reported, consistent with paragraph (b)(3) of this section, to BIE-funded schools, so that parents, teachers, principals, other school leaders, and administrators can interpret and address the specific academic needs of students as indicated by the students' achievement on assessment items; and
                        (11) Be designed and developed:
                        (i) To be valid and accessible for use by all students, including students with disabilities and English learners; and
                        (ii) To the extent practicable, using the principles of universal design for learning. For the purposes of this section, “universal design for learning” means a scientifically valid framework for guiding educational practice that:
                        (A) Provides flexibility in the ways information is presented, in the ways students respond or demonstrate knowledge and skills, and in the ways students are engaged; and
                        (B) Reduces barriers in instruction, provides appropriate accommodations, supports, and challenges, and maintains high achievement expectations for all students, including students with disabilities and English learners.
                        (c) Exception for advanced mathematics in middle school. The BIE will determine the use of this exemption in the Agency Plan.
                        (d) Computer adaptive assessments. (1) BIE retains the right to develop and administer computer adaptive assessments as the assessments described in this section, provided the computer adaptive assessments meet the requirements of this section, except that:
                        (i) The requirement that the same academic assessments must be used to measure the achievement of all BIE-funded school students and that the assessments must be administered to all BIE-funded school students may not be interpreted to require that all students taking the computer adaptive assessment be administered the same assessment items; and
                        (ii) Such assessment:
                        (A) Must measure, at a minimum, each student's academic proficiency based on the challenging academic standards for the student's grade level and growth toward such standards; and
                        (B) May measure the student's level of academic proficiency and growth using items above or below the student's grade level, including for use as part of the accountability system.
                        (2) In developing and administering computer adaptive assessments for students with the most significant cognitive disabilities and English learners:
                        (i) The BIE will ensure that the computer adaptive assessments for students with the most significant cognitive disabilities:
                        (A) Assess a student's academic achievement based on the challenging academic content standards for the grade in which the student is enrolled;
                        (B) Meet the requirements of this section and §§ 30.106 through 30.110, including § 30.108, except the assessments are not required to meet the requirements of paragraph (d)(1)(ii) of this section; and
                        (C) Assess the student's academic achievement to measure, in the subject being assessed, whether the student is performing at the student's grade level; and
                        (ii) The BIE may provide for the use of computer adaptive assessments that:
                        (A) Meet the requirements §§ 30.106 through 30.110 except the assessments are not required to meet the requirements of paragraph (d)(1)(ii) of this section; and
                        (B) Assess the student's English language proficiency, which may include growth towards such proficiency, in order to measure the student's acquisition of English.
                        (e) Peer review and future guidance on academic assessments. (1) The BIE assessments required by these regulations must undergo peer review with the exception of tribal civics and non-content Native American language academic assessments.
                        (2) BIE will develop guidance on the use of academic assessments in a Native American language for purposes of compliance with these regulatory requirements, including evidence of technical validity and reliability, in consultation with the Department of Education, Tribes, and other stakeholders.
                        (f) Rule of construction on parental rights. Nothing in this section may be construed as preempting tribal law at a tribally controlled school regarding the decision of a parent to not have the parent's child participate in the academic assessments under this paragraph (f).
                        (g) Limitation on assessment time. The Secretary may set a target limit on the aggregate amount of time devoted to the administration of assessments for each grade, expressed as a percentage of annual instructional hours.
                        (h) Students in Native American language schools or programs. The BIE is not required to assess, using an assessment written in English, student achievement in meeting the BIE's challenging State academic standards in reading/language arts, mathematics, or science for a student who is enrolled in a school or program that provides instruction primarily in a Native American language if:
                        (1) The program or school provides an assessment in the Native American language to all students in the program or school and:

                        (i) Submits evidence to the BIE according to BIE guidelines developed under paragraph (e)(2) of this section regarding such assessment's technical validity and reliability for the purposes for which it is intended; and
                        (ii) BIE submits this evidence to Department of Education for approval; and
                        (2) For an English learner the BIE continues to assess the English language proficiency of such English learner, using the annual English language proficiency assessment required under § 30.110, and provides appropriate services to enable him or her to attain proficiency in English.

                        § 30.106
                        How will the Secretary provide for the inclusion of all students in assessments?
                        The Secretary will provide assessment instruments that allow for:
                        (a) The participation of all students, generally;
                        (b) The participation of students with disabilities, as detailed in §§ 30.107 and 30.108; and
                        (c) The participation of English learners, as detailed in § 30.109.

                        § 30.107
                        How will the Secretary include students with disabilities in assessments?
                        (a) The BIE and BIE-funded schools must ensure that students with disabilities have the appropriate accommodations, such as interoperability with, and ability to use, assistive technology, for students with disabilities, including students with the most significant cognitive disabilities, necessary to measure the academic achievement of such children relative to the BIE's challenging academic standards or alternate academic achievement standards described in § 30.104(d) and (e).
                        (b) The Secretary must include students with disabilities in all assessments, with appropriate accommodations. For purposes of this section, students with disabilities, collectively, are:
                        (1) All children with disabilities as defined under section 602(3) of the IDEA;
                        (2) Students with the most significant cognitive disabilities who are identified from among the students in paragraph (a) of this section; and
                        (3) Students with disabilities covered under other acts, including:
                        (i) Section 504 of the Rehabilitation Act of 1973, as amended; and
                        (ii) Title II of the Americans with Disabilities Act (ADA), as amended.
                        (c) Appropriate accommodations for those students described in paragraph (b) of this section will be determined by:
                        (1) For each student under paragraphs (b)(1) and (2) of this section, the student's IEP team;
                        (2) For each student under paragraph (b)(3)(i) of this section, the student's placement team; or
                        (3) For each student under paragraph (b)(3)(ii) of this section, the individual or team designated by the school to make these decisions.
                        (d)(1) Except as provided in paragraph (d)(2) of this section, a student with a disability must be assessed with an assessment aligned with the BIE's challenging academic standards for the grade in which the student is enrolled.
                        (2) A student with the most significant cognitive disabilities may be assessed with:
                        (i) The general assessment under § 30.106(b); or
                        (ii) The alternate assessment under § 30.108 aligned with the BIE's challenging academic content standards for the grade in which the student is enrolled and the BIE's alternate academic achievement standards.
                        (e) The BIE and school must ensure that general and special education teachers, paraprofessionals, teachers of English learners, specialized instructional support personnel, and other appropriate staff receive necessary training to administer assessments and know how to administer assessments, including, as necessary, alternate assessments, and know how to make use of appropriate accommodations during assessment for all students with disabilities, consistent with section 1111(b)(2)(B)(vii)(III) of the Act.
                        (f) The BIE and school must ensure that the use of appropriate accommodations under paragraph (c) of this section does not deny a student with a disability:
                        (1) The opportunity to participate in the assessment; and
                        (2) Any of the benefits from participation in the assessment that are afforded to students without disabilities.

                        § 30.108
                        How will the Secretary provide for alternate assessments for students with the most significant cognitive disabilities?
                        (a) Alternate assessments aligned with alternate academic achievement standards. The BIE will provide for alternate assessments aligned with the challenging academic content standards for the grade in which the student is enrolled and alternate academic achievement standards described in § 30.104(d) and (e) for students with the most significant cognitive disabilities. The BIE must:
                        (1) Consistent with paragraph (b) of this section, ensure that, for each subject, the total number of students assessed in the subject using the alternate assessments does not exceed one (1) percent of the total number of all students in all BIE-funded schools who are assessed in the subject;

                        (2) With regard to the percentage of students assessed under this paragraph (a):

                        (i) Not prohibit a BIE-funded school from assessing more than one (1) percent of its assessed students in any subject for which assessments are administered with an alternate assessment aligned with alternate academic achievement standards;
                        (ii) Require that the BIE-funded school submit by October 1 information into the BIE's student information system regarding what assessment the student is to take and which must be consistent with the individualized education program (IEP);
                        (iii) Provide appropriate oversight of a BIE-funded school that is required to submit information to the BIE; and
                        (iv) Make the information submitted by a BIE-funded school under paragraph (a)(2)(ii) of this section publicly available, provided that such information does not reveal personally identifiable information about an individual student;
                        (3) With regard to IEP teams:
                        (i) Establish clear and appropriate guidelines, consistent with section 612(a)(16)(C) of the IDEA, and provide technical assistance as requested in writing, and monitor implementation of clear and appropriate guidelines for IEP teams to apply in determining, on a case-by-case basis, which students with the most significant cognitive disabilities will be assessed based on alternate academic achievement standards. Such guidelines must include a BIE definition of “students with the most significant cognitive disabilities” that addresses factors related to cognitive functioning and adaptive behavior, such that:
                        (A) The identification of a student as having a particular disability as defined in the IDEA or as an English learner does not determine whether a student is a student with the most significant cognitive disabilities;
                        (B) A student with the most significant cognitive disabilities is not identified solely on the basis of the student's previous low academic achievement, or the student's previous need for accommodations to participate in general BIE assessments; and
                        (C) A student is identified as having the most significant cognitive disabilities because the student requires extensive, direct individualized instruction and substantial supports to achieve measurable gains on the BIE's challenging academic content standards for the grade in which the student is enrolled; and
                        (ii) Provide to IEP teams a clear explanation of the differences between assessments based on grade-level academic achievement standards and those based on alternate academic achievement standards, including any effects of BIE and BIE-funded school policies on a student's education resulting from taking an alternate assessment aligned with alternate academic achievement standards, such as how participation in such assessments may delay or otherwise affect the student from completing the requirements for a regular high school diploma;
                        (4) Ensure that the parents of such students are clearly informed, as part of the process for developing the individualized education program (as defined in section 614(d)(1)(A) of the Individuals with Disabilities Education Act (20 U.S.C. 1414(d)(1)(A))):
                        (i) That their child's academic achievement will be measured based on the alternate academic achievement standards; and
                        (ii) How participation in the assessments may delay or otherwise affect the student from completing the requirements for a regular high school diploma;

                        (5) Promote, consistent with the IDEA (20 U.S.C. 1400 et seq.), the involvement and progress of students with the most significant cognitive disabilities in the general education curriculum;
                        (6) Describe the steps the Bureau has taken to incorporate universal design for learning, to the extent feasible, in alternate assessments;
                        (7) Describe that general and special education teachers, and other appropriate staff:
                        (i) Know how to administer the alternate assessments; and
                        (ii) Make appropriate use of accommodations for students with disabilities on all assessments required under this paragraph (a);
                        (8) Develop, disseminate information on, and promote the use of appropriate accommodations to increase the number of students with significant cognitive disabilities:
                        (i) Participating in academic instruction and assessments for the grade level in which the student is enrolled; and
                        (ii) Who are tested based on the BIE's challenging academic standards for the grade level in which the student is enrolled; and
                        (9) Not preclude a student with the most significant cognitive disabilities who takes an alternate assessment based on alternate academic achievement standards from attempting to complete the requirements for a regular high school diploma.
                        (b) Responsibility under IDEA. Subject to the authority and requirements for the IEP team for a child with a disability under section 614(d)(1)(A)(i)(VI)(bb) of the Individuals with Disabilities Education Act (20 U.S.C. 1414(d)(1)(A)(i)(VI)(bb)), such team, consistent with the guidelines established by the BIE and required under section 612(a)(16)(C) of such Act (20 U.S.C. 1412(a)(16)(C)) and paragraph (a)(1) of this section, will determine when a child with a significant cognitive disability may participate in an alternate assessment aligned with the alternate academic achievement standards.

                        § 30.109
                        How will the Secretary include English learners in academic content assessments?
                        (a) English learners. English learners must be:
                        (1) Assessed in a valid and reliable manner; and
                        (2) Provided appropriate accommodations on assessments administered including, to the extent practicable, assessments in the language and form most likely to yield accurate data on what the students know and can do in academic content areas, until the students have achieved English language proficiency, consistent with standardized BIE-determined exit procedures.
                        (b) Language or form of assessment. Notwithstanding paragraph (a)(2) of this section, BIE-funded schools must provide for assessments (using tests in English) of reading or language arts of any student who has attended school in the United States for three (3) or more consecutive school years, except that if the BIE-funded school determines, on a case-by-case individual basis, that academic assessments in another language or form would likely yield more accurate and reliable information on what the student knows and can do, the BIE-funded school may make a determination to assess the student in the appropriate language other than English for a period that does not exceed two (2) additional consecutive years, provided that the student has not yet reached a level of English language proficiency sufficient to yield valid and reliable information on what the student knows and can do on tests (written in English) of reading or language arts. This requirement does not permit either the BIE or BIE-funded schools to exempt English learners from participating in the BIE's assessment system.
                        (c) BIE responsibilities. The BIE must:
                        (1) Disseminate information and resources regarding English learners to, at a minimum, BIE-funded schools, and parents;
                        (2) Promote the use of accommodations for English learners to ensure that all English learners are able to participate in academic instruction and assessments; and
                        (3) Provide technical assistance when requested in writing.
                        (d) Exception for recently arrived English learners. With respect to recently arrived English learners who have been enrolled in a school in one of the 50 States in the United States or the District of Columbia for less than twelve (12) months, the BIE may choose to:
                        (1) Exclude:
                        (i) The English learner from one administration of the reading or language arts assessment required under § 30.105; and
                        (ii) The English learner's results on any of the assessments required under § 30.105(b)(5)(i) or § 30.110 for the first year of the English learner's enrollment in the school for the purposes of the BIE-determined accountability system under § 30.111; or
                        (2) Assess, and report the performance of:
                        (i) The English learner on the reading or language arts and mathematics assessments required under § 30.105(b)(5)(i) in each year of the student's enrollment in such a school; and
                        (ii) For the purposes of the BIE-determined accountability system:
                        (A) For the first year of the student's enrollment in the school, exclude the results on the assessments described in paragraphs (d)(1)(i) and (ii) of this section;
                        (B) Include a measure of student growth on the assessments described in paragraphs (d)(1)(i) and (ii) of this section in the second year of the student's enrollment in the school; and
                        (C) Include proficiency on the assessments in reading or language arts and mathematics described in this paragraph (d) in the third year of the student's enrollment in such a school, and each succeeding year of enrollment.
                        (e) English learner subgroup. With respect to a student previously identified as an English learner and for not more than four (4) years after the student ceases to be identified as an English learner, the BIE may include the results of the student's academic content assessments within the English learner subgroup of the subgroups of students as defined in § 30.101 for the purposes of the BIE-determined accountability system.

                        § 30.110
                        How will the Secretary ensure BIE-funded schools will provide for annual assessments of English language proficiency for English learners?
                        (a) The BIE will ensure that BIE-funded schools will administer a valid and reliable annual assessment of English proficiency to all English learners in the schools served by the BIE.
                        (b) The BIE will require BIE-funded schools to use the assessment to assess annually the English language proficiency, including reading, writing, speaking, and listening skills, of all English learners in kindergarten through grade twelve (12).
                        (c) The English language proficiency assessment must be aligned with the BIE's English language proficiency standards described in § 30.104(f).
                        (d) The assessment will be implemented, developed, and used consistent with the requirements of this section.
                        (e) The assessment will provide coherent and timely information about each student's attainment of the BIE's English language proficiency standards to parents.

                        (f) If an English learner has a disability that precludes assessment of the student in one or more domains of the English language proficiency assessment such that there are no appropriate accommodations for the affected domain(s) (e.g., a non-verbal English learner who because of an identified disability cannot take the speaking portion of the assessment), as determined, on an individualized basis, by the student's IEP team, 504 team, or by the individual or team designated by the BIE-funded school to make these decisions under title II of the ADA, then the BIE must assess the student's English language proficiency based on the remaining domains in which it is possible to assess the student.
                        (g) The BIE must provide for an alternate English language proficiency assessment for English learners with the most significant cognitive disabilities who cannot participate in the assessment under this paragraph (g) even with appropriate accommodations.
                        (h) BIE will provide technical assistance, including training teachers on how to administer assessments, in regard to English language proficiency assessments and alternate English language proficiency assessments to BIE-funded schools as requested in writing.

                        § 30.111
                        How will the Secretary implement requirements for an accountability system?
                        (a) The Secretary will define accountability system for BIE-funded schools consistent with this section and subpart C of this part, including provisions for a single Bureau-wide accountability system and system of support and improvement activities, taking into account the unique circumstances and needs of BIE-funded schools and the students served by BIE-funded schools.
                        (b) To improve student academic achievement and school success among all elementary and secondary schools within the BIE-funded school system, the Secretary will develop and implement a single, Bureau-wide accountability system that:
                        (1) Is based on the Bureau's challenging academic standards and academic assessments;
                        (2) Is informed by ambitious long-term goals and measurements of interim progress;
                        (3) Includes all the accountability indicators described paragraph (e) of this section;
                        (4) Takes into account the achievement of all elementary and secondary school students within the BIE-funded school system;
                        (5) Is the same accountability system used to annually, meaningfully differentiate all schools within the BIE-funded school system and the same accountability system used to identify schools for comprehensive and targeted support and improvement; and
                        (6) Includes the process that the Bureau will use to ensure effective development and implementation of school support and improvement plans, including evidence-based interventions, to hold all schools within the BIE-funded school system accountable for student academic achievement and school success.
                        (c) The inclusion of science and tribal civics will be phased into the Secretary's requirements for accountability system starting as a school quality or student success indicator and their continued use in such manner will be revisited as the accountability system is implemented.
                        (d) For all students and separately for each subgroup of students within the BIE-funded school system, the BIE will establish long-term goals and measurements of interim progress that will include, at a minimum, improved academic achievement, as measured by proficiency on the Bureau's annual assessments in mathematics and reading or language arts under § 30.105(b)(5)(i), and high school graduation rates, including the four (4)-year adjusted cohort graduation rate, or at BIE's discretion one or more extended year graduation cohorts, and that will:
                        (1) Use the same multi-year length of time for all students and for each subgroup of students within the BIE-funded school system to meet the goals; and
                        (2) Take into account, for subgroups of students who are behind on the measurements of academic achievement and high school graduations rates, the improvement necessary to make significant progress in closing Bureau-wide proficiency and graduation rate gaps.
                        (e) For all students and separately for each subgroup of students within the BIE-funded school system, the BIE will include a long-term goal and measurements of interim progress for increases in the percentage of English learner students making progress in achieving English language proficiency as defined by the Secretary and measured by the assessments under § 30.110 within a timeline determined by the Bureau.
                        (f) For all students and separately for each subgroup of students the Bureau will establish and annually measure the following accountability indicators:
                        (1) For all schools, based upon the long-term goals established under paragraphs (b)(2) and (d) of this section, academic achievement:
                        (i) As measured by proficiency on the annual assessments of mathematics and reading or language arts described in § 30.105(b)(5)(i); and
                        (ii) At the BIE's discretion, for each high school, growth, as measured by such annual assessments.
                        (2) For elementary and secondary schools that are not high schools:
                        (i) A measure of student growth, if determined to be appropriate by the BIE; or

                        (ii) Another valid and reliable Bureau-wide academic indicator that allows for meaningful differentiation in school performance.

                        (3) For high schools, based upon the long-term goals established under paragraphs (b)(2) and (d) of this section:
                        (i) The four (4)-year adjusted cohort graduation rate; and
                        (ii) At the BIE's discretion, the extended-year adjusted graduation cohort rate, as defined in paragraph (j) of this section.
                        (4) For all schools, progress in achieving English language proficiency, as defined by the BIE and measured by the assessments of English language proficiency described in § 30.110, within a BIE-determined timeline for all English learners:
                        (i) In each of grades three (3) through eight (8); and
                        (ii) In the high school grade for which such English learners are otherwise assessed in mathematics and reading or language arts.
                        (5) For all schools, not less than one indicator of school quality or student success that:
                        (i) Allows for meaningful differentiation in school performance;
                        (ii) Is valid, reliable, comparable, and Bureau-wide (with the same indicator or indicators used for each grade span, as such term is determined by the BIE); and
                        (iii) May include one or more of the following measures:
                        (A) Student or Educator engagement;
                        (B) Chronic absenteeism;
                        (C) Student access to and completion of advanced coursework;
                        (D) Postsecondary readiness;
                        (E) School climate and safety; and
                        (F) Any other indicator the BIE chooses that meets the requirements of this section.
                        (g) The BIE will establish a system for meaningfully differentiating, annually, all schools that will:
                        (1) Be based on all indicators described paragraph (f) of this section for all students and for each subgroup of students; and
                        (2) With respect to paragraphs (f)(1) through (4) of this section, afford:
                        (i) Substantial weight to each such indicator;
                        (ii) In the aggregate, much greater weight than is afforded to the indicator or indicators utilized by the BIE and described in paragraph (f)(5) of this section, in the aggregate; and
                        (iii) Include differentiation of any such school in which any subgroup of students is consistently underperforming, as determined by the BIE, based on all indicators described in paragraph (f) of this section.
                        (h) Based on the system of meaningful differentiation described in paragraph (g) of this section, the BIE will establish a methodology to identify:
                        (1) Beginning with the first full school year following April 27, 2020, and at least once every three (3) years thereafter, one (1) BIE-wide category of schools for comprehensive support and improvement, which will include:
                        (i) Not less than the lowest-performing five (5) percent of all schools receiving Title I funding;
                        (ii) All high schools failing to graduate one third (1/3) or more of their students; and
                        (iii) All schools identified for additional targeted support and improvement that receive ESEA Title I funding and do not meet exit criteria as provided in § 30.124(a)(2).
                        (2) The BIE will provide technical assistance to all schools identified for comprehensive support and improvement, targeted support and improvement, or additional targeted support.
                        (i) The Bureau's accountability system will annually measure the achievement of at least ninety-five (95) percent of all students, and ninety-five (95) percent of each subgroup of students, who are enrolled in a school within the BIE-funded school system on the Bureau's assessments. The denominator for the purpose of measuring, calculating, and reporting on the academic achievement indicator will be the greater of:
                        (1) Ninety-five (95) percent of all students, or ninety-five (95) percent of each subgroup of students; or
                        (2) The number of students participating in the assessments.
                        (j) The performance of students that have not attended the same BIE-funded school for at least half (1/2) of a school year will not be included in the academic achievement, other academic, progress in achieving English language proficiency, or school quality or student success indicators for that school year, but will be used for the purpose of reporting on the Bureau and school report cards for that school year.
                        (k) Extended-year adjusted cohort graduation rate means the fraction—
                        (1) The denominator of which consists of the number of students who form the original cohort of entering first-time students in grade nine (9) enrolled in the high school, adjusted by—
                        (i) Adding the students who joined that cohort, after the date of the determination of the original cohort; and
                        (ii) Subtracting only those students who left that cohort, after the date of the determination of the original cohort, as described in paragraph (l) of this section; and
                        (2) The numerator of which—
                        (i) Consists of the sum of—
                        (A) The number of students in the cohort, as adjusted under paragraph (k)(1) of this section, who earned a regular high school diploma before, during, or at the conclusion of—
                        (1) One or more additional years beyond the fourth year of high school; or
                        (2) A summer session immediately following the additional year of high school; and

                        (B) All students with the most significant cognitive disabilities in the cohort, as adjusted under paragraph (k)(1) of this section, assessed using the alternate assessment aligned to alternate academic achievement standards under § 30.108 and awarded an alternate diploma that is—
                        (1) Standards-based;
                        (2) Aligned with the requirements for the regular high school diploma; and
                        (3) Obtained within the time period for which the BIE ensures the availability of a free appropriate public education under 20 U.S.C. 1412(a)(1); and
                        (ii) Does not include any student awarded a recognized equivalent of a diploma, such as a general equivalency diploma, certificate of completion, certificate of attendance, or similar lesser credential.
                        (l) To remove a student from a cohort, a school or local educational agency must require documentation, or obtain documentation from the BIE, to confirm that the student has transferred out, immigrated to another country, transferred to a prison or juvenile facility, or is deceased.
                        (m) For purposes of this paragraph (m), the term “transferred out” has the meaning given the term in ESEA section 8101(25)(C).
                        (n) For those high schools that start after grade nine (9), the original cohort will be calculated for the earliest high school grade students attend no later than the date by which student membership data is collected annually by the BIE.

                      Subpart B—Accountability, Waiver of Requirements, Technical Assistance, and Approval of Proposals for Alternative Requirements

                        § 30.112
                        May a tribal governing body or school board waive the Secretary's requirements for standards, assessments, and an accountability system?
                        Yes. A tribal governing body or school board may waive the Secretary's requirements for standards, assessments, and an accountability system in part or in whole, and the tribal governing body or school board's alternative requirements will apply if they meet the requirements of section 1111, taking into account the unique circumstances and needs of the applicable school or schools and the students served by such school or schools, and are approved by the Secretary and the Secretary of Education. If the Secretary and the Secretary of Education do not approve the tribal governing body or school board's proposal for alternative requirements, the Secretary's requirements under this part continue to apply. Depending on the nature and content of such proposals for alternative requirements, and subject to the availability of appropriations, alternative requirements will generally be effective in the school year following the school year they are approved. Where a tribal governing body or school board proposes to use existing State requirements, approval of the use of such requirements is dependent upon the agreement of the applicable State.

                        § 30.113
                        How does a tribal governing body or school board waive the Secretary's requirements?
                        (a) A tribal governing body or school board may waive the Secretary's requirements for standards, assessments, and an accountability system, in part or in whole.
                        (b) The tribal governing body or school board must notify the Secretary and the Secretary of Education in writing of the decision to waive the Secretary's requirements in part or in whole.
                        (c) Within sixty (60) days of the decision to waive the Secretary's requirements in part or in whole, the tribal governing body or school board must submit to the Secretary for review and, in coordination with the Secretary of Education, approval, a proposal for alternative requirements that are consistent with section 1111 of the Act, taking into account the unique circumstances and needs of the school or schools and the students served. The Secretary encourages a tribal governing body or school board to request and receive technical assistance well in advance of submission of a plan to the Secretary for review. The tribal governing body or school board must continue to follow the Secretary's requirements for standards, assessments, and an accountability system until a proposal for alternative requirements has been approved and until alternative requirements become effective.
                        (d) A tribal governing body or school board may request in writing an extension of the sixty (60) day deadline for the provision of technical assistance.
                        (e) A tribal governing body or school board must use this process anytime a tribal governing body or school board proposes alternative requirements for standards, assessments, and an accountability system, or proposes changes to approved alternative requirements.
                        (f) The Secretary will work with the Secretary of Education to develop and make available templates for proposals for alternative requirements that tribal governing bodies and school boards may use to assist in the development of such proposals for alternative requirements.

                        § 30.114
                        What should a tribal governing body or school board include in a proposal for alternative requirements?

                        Proposals for alternative requirements must include an explanation of how the alternative proposal meets the requirements of section 1111 of the Act, taking into consideration the unique circumstances and needs of BIE-funded schools and the students served at such schools.

                        § 30.115
                        May proposed alternative requirements use parts of the Secretary's requirements?
                        Yes, a tribal governing body or school board may use the Secretary's requirements in part or in whole. Alternative proposals must clearly identify any retained portions of the Secretary's requirements.

                        § 30.116
                        Will the Secretary provide technical assistance to tribal governing bodies or school boards seeking to develop alternative requirements?
                        The Secretary and the Secretary of Education are required by statute to provide technical assistance, upon request, either directly or through contract, to a tribal governing body or a school board that seeks to develop alternative requirements. A tribal governing body or school board seeking such assistance must submit a request in writing to the Director. The Secretary will provide such technical assistance on an ongoing and timely basis.

                        § 30.117
                        What is the process for requesting technical assistance?
                        (a) Requests for technical assistance must be in writing from a tribal governing body or school board to the Director of BIE and the Department of Education's Assistant Secretary of the Office of Elementary and Secondary Education.
                        (b) The Director, or designee, will acknowledge receipt of a request for technical assistance.
                        (c) No later than thirty (30) days after receiving the original request, the Director will identify a point-of-contact and begin the process of providing technical assistance. The Director and requesting tribal governing body or school board will work together to identify the form, substance, and timeline for the assistance.

                        § 30.118
                        When should the tribal governing body or school board request technical assistance?
                        A tribal governing body or school board may request technical assistance in writing at any time. A tribal governing body or school board is welcomed and encouraged to request technical assistance before formally notifying the Secretary of its intention to waive the requirements established by the Secretary in order to maximize the time available for technical assistance.

                        § 30.119
                        How does the Secretary review and approve alternative requirements?
                        (a) The Secretary and the Secretary of Education will jointly approve plans for alternative requirements for standards, assessments, and an accountability system or determine that the proposed alternative requirements do not meet the requirements of section 1111 of the Act.
                        (1) The Secretary will consult with the Secretary of Education through the review of a proposal for alternative requirements.
                        (2) Upon receipt of a proposal for alternative requirements for standards, assessments, and an accountability system, in part or in whole, the Secretary will begin coordination with the Secretary of Education on review and approval of the proposal.
                        (3) The Secretary will provide a status update regarding the processing of the proposal within 120 days of receipt of the proposal and every thirty (30) days thereafter to discuss the stage of the review process.
                        (b) If the Secretary and the Secretary of Education approve a proposal for alternative requirements, the Secretary will:
                        (1) Promptly notify the tribal governing body or school board; and
                        (2) Indicate the date for which the alternative proposal will be effective.
                        (c) If a proposal for alternative requirements is not approved, the tribal governing body or school board will be notified that:
                        (1) The proposal has not been approved; and
                        (2) The reasons why the alternative proposal was not approved.
                        (d) If a proposal for alternative requirements is not approved, the Secretary will provide technical assistance to the tribal governing body or school board to help to overcome the reasons why the alternative proposal was not approved.
                        (e) If a proposal for alternative requirements is not approved, or is not moving forward, then Tribes may individually request formal consultation with the Secretary and Secretary of Education.

                      Subpart C—Support and Improvement

                        § 30.120
                        How will the Secretary notify BIE-funded schools that they have been identified for school support and improvement activities?
                        The Secretary will notify each BIE-funded school that has been identified for comprehensive support and improvement as described in § 30.111(h).

                        § 30.121
                        How will the Secretary implement requirements for comprehensive support and improvement activities?
                        (a) Once notified that it has been identified for comprehensive support and improvement, each BIE-funded school is required to develop and implement, in partnership with stakeholders (including principals and other school leaders, teachers, and parents), a comprehensive support and improvement plan to improve student outcomes that:

                        (1) Is informed by all indicators described in § 30.111(f), including student performance against BIE-determined long-term goals described in § 30.111(d);

                        (2) Includes evidence-based interventions;
                        (3) Is based on a school-level needs assessment;
                        (4) Identifies resource inequities, which may include a review of school-level budgeting, to be addressed through implementation of such comprehensive support and improvement plan;
                        (5) Is approved by the school and the BIE; and
                        (6) Upon approval and implementation, is monitored and periodically reviewed by the BIE.
                        (b) In regard to high schools that have been identified as having failed to graduate one-third or more of their students, the BIE may:
                        (1) Permit differentiated improvement activities that use evidence-based interventions in the case of a school that predominantly serves students:
                        (i) Returning to education after having exited secondary school without a regular high school diploma; or
                        (ii) Who, based on their grade or age, are significantly off track to accumulate sufficient academic credits to meet high school graduation requirements; and
                        (2) In the case of a school that has a total enrollment of fewer than 100 students, permit the BIE-funded school to forego implementation of improvement activities.

                        § 30.122
                        How will the Secretary implement requirements for targeted support and improvement activities?
                        (a) Using the system of annual meaningful differentiation of schools described in § 30.111(b)(5) and (f), the BIE will notify each BIE-funded school in which any subgroup of students is consistently underperforming in accordance with § 30.111(g)(2)(iii).
                        (b) Each school that has been notified must develop and implement, in partnership with stakeholders (including principals and other school leaders, teachers, and parents), a school-level targeted support and improvement plan to improve student outcomes based on the BIE's indicators for each subgroup of students that was the subject of such notification that:
                        (1) Is informed by all indicators described in § 30.111(f), including performance against long-term goals described in § 30.111(d);
                        (2) Includes evidence-based interventions;
                        (3) Is approved by the BIE prior to implementation of such plan;
                        (4) Is monitored by the BIE, upon submission and implementation; and
                        (5) Results in additional action following unsuccessful implementation of such plan after a number of years determined by the BIE.

                        § 30.123
                        How will the Secretary implement requirements to identify schools for additional targeted support?
                        (a) The BIE will identify for additional support and improvement each school with one (1) or more subgroups that is performing as poorly as the lowest-performing five (5) percent of all Title I schools identified for comprehensive support and improvement in the BIE system using the BIE's system of annual meaningful differentiation of schools described in § 30.111(g).
                        (b) Each school identified for additional targeted support and improvement must develop and implement a school-level targeted support and improvement plan and identify resource inequities (which may include a review of BIE-funded school level budgeting), to be addressed through implementation of the plan.

                        § 30.124
                        How will the Secretary implement continued support for Bureau-funded schools and school improvement?
                        (a) The Secretary will establish exit criteria for:
                        (1) Schools identified for comprehensive support and improvement, which, if not satisfied within a BIE-determined number of years (not to exceed four (4) years), will result in more rigorous BIE-determined action, such as implementation of interventions (which may include addressing school-level operations); and
                        (2) Schools identified for additional targeted support, which, if not satisfied within a BIE-determined number of years, will, in the case of schools receiving Title I funds, result in identification of the school by the BIE for comprehensive support and improvement.
                        (b) The Secretary will also periodically review resource allocation to support school improvement.

                      Subpart D—Responsibilities and Accountability

                        § 30.125
                        What is required for the Bureau to meet its reporting responsibilities?
                        The Bureau is required to prepare and disseminate widely to the public an annual report card for the BIE-funded school system as a whole, and also report cards for individual BIE-funded schools, consistent with the requirements of section 1111(h) of the Act. The BIE's annual report card will be made available on the internet along with all BIE-funded school report cards.

                        § 30.126
                        What information collections have been approved?

                        The collections of information in this part have been approved by the Office of Management and Budget under 44 U.S.C. 3501 et seq. and assigned OMB Control Number 1076-0191. Response is required to obtain a benefit. A Federal agency may not conduct or sponsor, and you are not required to respond to, a collection of information unless it displays a currently valid OMB Control Number.

                    Pt. 31
                    PART 31—FEDERAL SCHOOLS FOR INDIANS

                      Sec.
                      31.0
                      Definitions.
                      31.2
                      Use of Federal school facilities.
                      31.3
                      Non-Indian pupils in Indian schools.
                      31.4
                      Compulsory attendance.
                      31.6
                      Coercion prohibited.
                      31.7
                      Handling of student funds in Federal school facilities.

                      Authority:
                      Sec. 1, 41 Stat. 410; 25 U.S.C. 282, unless otherwise noted.

                      Source:
                      22 FR 10533, Dec. 24, 1957, unless otherwise noted.

                      § 31.0
                      Definitions.
                      As used in this part:
                      (a) School district means the local unit of school administration as defined by the laws of the State in which it is located.
                      (b) Cooperative school means a school operated under a cooperative agreement between a school district and the Bureau of Indian Affairs in conformance with State and Federal school laws and regulations.
                      (35 Stat. 72, 25 U.S.C. 295)
                      [33 FR 6472, Apr. 27, 1968]

                      § 31.2
                      Use of Federal school facilities.
                      Federal Indian school facilities may be used for community activities and for adult education activities upon approval by the superintendent or officer in charge.

                      § 31.3
                      Non-Indian pupils in Indian schools.
                      Indian and non-Indian children who are not eligible for enrollment in Bureau-operated schools under § 31.1 may be enrolled in such schools under the following conditions:
                      (a) In boarding schools upon payment of tuition fees, which shall not exceed the per capita cost of maintenance in the school attended, when their presence will not exclude Indian pupils eligible under § 31.1.
                      (b) In day schools in areas where there are no other adequate free school facilities available, tuition fees may be charged for such enrollment at the discretion of the superintendent or other officer in charge provided such fees shall not exceed the tuition fees allowed or charged by the State or county in which such school is located for the children admitted in the public schools of such State or county.
                      (34 Stat. 1018, 35 Stat. 783, 40 Stat. 564; 25 U.S.C. 288, 289, 297)
                      [29 FR 5828, May 2, 1964]

                      § 31.4
                      Compulsory attendance.
                      Compulsory school attendance of Indian children is provided for by law.
                      (60 Stat. 962; 25 U.S.C. 231)

                        Cross Reference:
                        For penalties for the failure of Indians to send children to school and for contributing to the delinquency of minors, see § 11.424 of this chapter.

                      § 31.6
                      Coercion prohibited.
                      There shall be no coercion of children in the matter of transfers from one school to another, but voluntary enrollment should be effected through maintenance of Federal Indian schools or programs which suit the needs and interests of the areas in which they are located.
                      (Sec. 1, 29 Stat. 348; 25 U.S.C. 287)

                      § 31.7
                      Handling of student funds in Federal school facilities.
                      The Secretary or his authorized representative may authorize officials and employees of the Bureau of Indian Affairs to accept and to disburse deposits of funds of students and student activity associations in schools operated by the Bureau in accordance with the purposes of such deposits. The following steps shall be taken to safeguard these funds:

                      (a) A written plan of operation shall be developed by the membership of each student activity group. The plan of operation subject to the approval of authorized officials shall outline procedures and provide for a system of accounting for the student funds commensurate with the age and grade level of the students yet adequate for financial control purposes and shall stipulate the maximum operating capital of activity.

                      (b) Appropriate safekeeping facilities shall be provided for all student personal and group funds and for the accounting or bookkeeping records.
                      (c) Employees handling student funds in cumulative amounts in excess of $100 shall be covered by a comprehensive fidelity bond the penal sum of which shall be appropriately related to fund amounts handled.
                      (d) Student funds accumulated in excess of the amount authorized for operating purposes by the plan of operation shall be deposited in federally insured depositories.
                      (e) Periodic administrative inspections and financial audit of student fund operations shall be conducted by authorized Bureau personnel.
                      [26 FR 10637, Nov. 14, 1961]

                    Pt. 32
                    PART 32—INDIAN EDUCATION POLICIES

                      Sec.
                      32.1
                      Purpose and scope.
                      32.2
                      Definitions.
                      32.3
                      Mission statement.
                      32.4
                      Policies.
                      32.5
                      Evaluation of implementation of Pub. L. 95-561.

                      Authority:
                      Secs. 1130 and 1133 of Title XI of the Education Amendments of 1978 (92 Stat. 2143, 2321 and 2325, Pub. L. 95-561; 25 U.S.C. 2010 and 2013).

                      Source:
                      44 FR 58098, Oct. 9, 1979, unless otherwise noted. Redesignated at 47 FR 13327, Mar. 30, 1982.

                      § 32.1
                      Purpose and scope.
                      The purpose of this part is to state the policies to be followed by all schools and education programs under the jurisdiction of the Bureau of Indian Affairs. Contract schools operated by Indian Tribes or Alaska Native entities may develop their independent policies, consistent with contractual obligations, or adhere to these. The adherence to the appropriate policies shall reflect the best interests of the student, the Federal government, the Tribes and Alaska Native entities, and shall be based on educationally sound judgment.

                      § 32.2
                      Definitions.
                      As used in this part, the term:
                      (a) Agency School Board means a body, the members of which are appointed by the school boards of the schools located within such agency, and the number of such members shall be determined by the Director in consultation with the affected Tribes or Alaska Native entities except that, in agencies serving a single school, the school board of such school shall fulfill these duties.
                      (b) Alaska Native means an Indian, Eskimo, or Aleut who is a member of an Alaska Native entity.
                      (c) Alaska Native Entity means any Alaska Native village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688; 43 U.S.C. 1601 et seq.).
                      (d) Alaska Native Village means any Native village as defined in section 3(c) of the Alaska Native Claims Settlement Act (85 Stat. 689; 43 U.S.C. 1602 (c)).
                      (e) Boarding school, hereinafter referred to as residential school, means a Bureau school offering residential care and support services as well as an academic program.
                      (f) Bureau means the Bureau of Indian Affairs of the Department of the Interior.
                      (g) Consultation means a conferring process with Tribes, Alaska Native entities, and Tribal organizations on a periodic and systematic basis in which the Bureau and Department officials listen to and give effect, to the extent they can, to the views of these entities.
                      (h) Contract school means a school (other than a public school) which is Tribally operated and aided by a financial assistance contract with the Bureau.
                      (i) Day school means a Bureau school offering an academic program and certain support services such as counseling, food, transportation, etc., but excluding residential care.
                      (j) Director means the Director, Office of Indian Education Programs, Bureau of Indian Affairs.
                      (k) Early childhood education means comprehensive education activities with continuity of educational approach for children ages 0-8 years and their families, appropriate for their age, development, language and culture which supplement and support usual family responsibilities for child growth and development. They are coordinated with, but do not supplant, existing educational, health, nutritional, social and other necessary services.
                      (l) Exceptional Education Programs mean the provision of services to those children who are identified as handicapped and have been found to meet the criteria of handicapped as defined in Pub. L. 94-142, and programs for gifted and talented students.
                      (m) Indian means a member of an Indian Tribe.
                      (n) Indian Organization means any group, association, partnership, corporation, or other legal entity owned or controlled by a federally recognized Indian Tribe or Tribes, or a majority of whose members are members of federally recognized Indian Tribes.
                      (o) Indian Tribe or Tribe means any Indian tribe, band, nation, rancheria, pueblo, colony, or community which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.
                      (p) Local school board, when used with respect to a Bureau school, means a body chosen in accordance with the laws of the Tribe or Alaska Native entity to be served or, in the absence of such laws, elected by the parents of the Indian children attending the school, except that in schools serving a substantial number of students from different Tribes or Alaska Native entities the members shall be appointed by the governing bodies of the Tribes and entities affected; and, the number of such members shall be determined by the Director in consultation with the affected Tribes and entities.
                      (q) Post-secondary education means any education program beyond the age of compulsory education, including higher education, career, vocational, and technical.
                      (r) Tribal Organization means an organization composed of or duly representing Tribal governments which may be national or regional in scope and function.

                      § 32.3
                      Mission statement.
                      Recognizing the special rights of Indian Tribes and Alaska Native entities and the unique government-to-government relationship of Indian Tribes and Alaska Native villages with the Federal Government as affirmed by the United States Constitution, U.S. Supreme Court decisions, treaties, Federal statutes, and Executive Orders, and as set out in the Congressional declaration in sections 2 and 3 of the Indian Self-Determination and Education Assistance Act (Pub. L. 93-638; 88 Stat. 2203; 25 U.S.C. 450 and 450a), it is the responsibility and goal of the Federal government to provide comprehensive education programs and services for Indians and Alaska Natives. As acknowledged in section 5 of the Indian Child Welfare Act of 1978 (Pub. L. 95-608; 92 Stat. 3069; 25 U.S.C. 1901), in the Federal Government's protection and preservation of Indian Tribes and Alaska Native villages and their resources, there is no resource more vital to such Tribes and villages than their young people and the Federal Government has a direct interest, as trustee, in protecting Indian and Alaska Native children, including their education. The mission of the Bureau of Indian Affairs, Office of Indian Education Programs, is to provide quality education opportunities from early childhood through life in accordance with the Tribes' needs for cultural and economic well-being in keeping with the wide diversity of Indian Tribes and Alaska Native villages as distinct cultural and governmental entities. The Bureau shall manifest consideration of the whole person, taking into account the spiritual, mental, physical and cultural aspects of the person within family and Tribal or Alaska Native village contexts.

                      § 32.4
                      Policies.
                      In carrying out its Education mission, the Assistant Secretary for Indian Affairs through the Director shall:
                      (a) Policy making. (1) Assure that no new policy shall be established nor any existing policy changed or modified without consultation with affected Tribes and Alaska Native Government entities.

                      (2) Be guided in policy formulation and funding priorities, including the proposing and awarding of contracts and grants, by periodic and systematic consultation with governing bodies of Tribes and Alaska Native entities.
                      (3) Ensure that Indian Tribes and Alaska Native entities fully exercise self-determination and control in planning, priority-setting, development, management, operation, staffing and evaluation in all aspects of the education process.
                      (4) Ensure that each agency or local school board shall be authorized and empowered to function as the policy making body for the school, consistent with the authority granted by the tribes or Alaska Native entity(ies) served by the school(s).
                      (b) Student rights. Ensure the constitutional, statutory, civil and human rights of all Indian and Alaska Native students, and respect the role of Tribal judicial systems where appropriate including, for example, ensuring that students have the right to be free from cruel and unusual punishment and that all disciplinary procedures shall be consistent with appropriate customs and practices of the appropriate Indian Tribe or Alaska Native village.
                      (c) Equity funding. Assure that resources for all education programs are equitably distributed for the benefit of all Indian and Alaska Native students, taking into account special educational needs where they exist, as further described in part 39 of this subchapter.
                      (d) Direction of programs. Ensure that the education function be structured in such a manner that all matters relating to the operation of education programs be administered by or be under the direction of education personnel.
                      (e) Respect for family. Promote, respect and defend the cohesiveness and integrity of the family, and Tribal and Alaska Native community, as they relate to the educational and social prerogatives of the Tribes and Alaska Native entities.
                      (f) Religious freedom. Promote and respect the right to cultural practices and religious freedom for all students, consistent with Tribal and Alaska Native entities' wishes and with the provisions of the American Indian Religious Freedom Act (92 Stat. 469; Pub. L. 95-341; 42 U.S.C. 1996).
                      (g) Tribal rights regarding governing bodies and planning. (1) Develop in consultation with Tribes and Alaska Native entities a plan to include their direct involvement in short and long-range planning of Bureau operated post-secondary schools through the formation of policy making governing boards.
                      (2) Encourage and defend the right of the Tribes and Alaska Native entities to govern their own internal affairs in all matters relating to education, and their right to determine the equitable and appropriate composition of governing boards at Bureau off-reservation and post-secondary schools.
                      (h) Multilingual education. Provide for a comprehensive multicultural and multilingual educational program including the production and use of instructional materials, culturally appropriate methodologies and teaching and learning strategies that will reinforce, preserve and maintain Indian and Alaska Native languages, cultures, and histories which school boards, Tribes and Alaska Native entities may utilize at their discretion.
                      (i) Choice of school. Afford Indian and Alaska Native students the opportunity to attend local day schools and other schools of choice and the option to attend boarding schools when the student and parent or guardian determine it is in the student's best interest and consistent with the provisions of the Indian Child Welfare Act of 1978 (Pub. L. 95-608) except that, residential schools shall not be used as substitutes for providing adequate local family social services. Each school shall establish its attendance area in cooperation with neighboring schools.
                      (j) Tribal education plans. Assist Tribes and Alaska Native entities at their request in the development of Departments of Education, education codes, and comprehensive education plans.
                      (k) Advocacy and coordination. (1) Serve as an advocate for Indian Tribes and Alaska Native entities in education matters before the Federal, State and local governments.

                      (2) Assume an assertive role in coordinating comprehensive support for Indian and Alaska Native students internally and from other agencies in education, mental and physical health, juvenile justice, job training, including apprenticeship programs and other related Federal, State and local programs and services.
                      (3) Serve as an advocate and carry out responsibilities for Indian and Alaska Native students in public and other non-Bureau operated schools consistent with the wishes of the appropriate Indian Tribes and Alaska Native entities, particularly in regard to Impact Aid (Pub. L. 81-874), Johnson-O'Malley, and all Elementary and Secondary Education Act programs.
                      (l) Student assessment. Establish and maintain a program of research and development to provide accurate and culturally specific assessment instruments to measure student performance in cooperation with Tribes and Alaska Native entities.
                      (m) Recruitment of Indians. Adopt procedures to insure that qualified Indian and Alaska Native educators are recruited for positions appropriate to their cultural background and qualifications.
                      (n) Priorities in contracts and grants. Provide financial support through contracts, grants or other funding mechanisms with first priority given to the Tribes and Alaska Native entities, Tribal organizations, Tribally controlled community colleges, and Indian or Alaska Native professional or technical assistance organizations which have the sanction of the benefitting Tribes and Alaska Native entities.
                      (o) Community school concept. Promote the community school concept by encouraging year around multi-use of educational facilities, equipment and services for Tribal, Alaska Native village, and community development.
                      (p) Education close to home. Provide day and residential educational services as close to an Indian or Alaska Native student's home as possible, except when a student elects to attend a school elsewhere for specialized curricular offerings or services.
                      (q) Tribal notification and involvement and program flexibility. (1) Notify Indian Tribes and Alaska Native entities of proposed, pending or final Federal legislation, appropriations, Solicitor's and Attorney General's opinions and court decisions affecting Indian and Alaska Native education for the purposes of information and consultation, providing them ready access at the local level to all evaluations, data records, reports and other relevant information, consistent with the provisions of the Privacy and Freedom of Information Acts.
                      (2) Implement rules, regulations, procedures, practices, and standards to insure flexibility in the exercise of local Tribal or Alaska Native village options, and provide for input in periodic reviews, evaluations, and revisions to meet changing needs and circumstances.
                      (r) Career and higher education. (1) Ensure to the extent possible that all students who choose to pursue career and post-secondary education, including but not limited to, undergraduate and graduate programs, or preparation for skilled trades, receive adequate academic or other preparation, at the schools of their choice, assuring that students are provided adequate support services to enable them to meet their educational goals.
                      (2) Extend to Tribes and Alaska Native entities the prerogative of determining those critical professions and fields of study in post-secondary education which are of the highest priority to meet their economic and cultural goals.
                      (s) Planning, maintenance and use of facilities. (1) Ensure that the needs of the students and Tribal or Alaska Native community will receive first priority in the planning, design, construction, operation and maintenance of Bureau schools and residential facilities, rather than other considerations, such as ease of maintenance, and that these facilities assure a supportive environment for learning, living and recreation.
                      (2) Maintain all school and residential facilities to meet appropriate Tribal, State or Federal safety, health and child care standards. If a conflict exists in these standards, the Federal standard shall be followed; in the absence of a Federal standard, the Tribal standard shall be followed. In case of conflict, any such Tribal health or safety standards shall be no greater than any otherwise applicable State standard.
                      (t) Alternative, innovative and exemplary programs. Vigorously encourage and support alternative, innovative and exemplary programs reflecting Tribal or Alaska Native village specific learning styles, including but not limited to, parent-based early childhood education programs, adult and vocational technical education, library and media services, special education including programs for handicapped, gifted and talented students, summer programs, and career development.
                      (u) Training. Provide support and technical assistance at all levels for the training of duly sanctioned Tribal and Alaska Native education representatives involved in educational decisionmaking, including pre-service and in-service training for educators.
                      (v) Tribally controlled community colleges. Assist Tribes and Alaska Natives in their planning, designing, construction, operation and maintenance of Tribally controlled community colleges, consistent with all appropriate legislation. (See part 41 of this subchapter.)
                      (w) Equal opportunity. Establish and enforce policies and practices to guarantee equal opportunity and open access to all Indian and Alaska Native students in all matters relating to their education programs consistent with the provisions of the Privacy and Freedom of Information Acts.
                      (x) Accountability, evaluation of MIS. (1) Enforce a strict standard of fiscal, programmatic and contract accountability to the Tribes and Alaska Native entities and assist them in the development of their own standards of accountability and carry out annual evaluations of all Bureau-operated or funded education programs.
                      (2) Provide and make available a computerized management information system which will provide statistical information such as, but not limited to, student enrollment, curriculum, staff, facilities, student assessments and related educational information.
                      (y) Accreditation. (1) Encourage and assist all Bureau and contract schools to attain appropriate State, regional, Tribal or national accreditation.
                      (2) Assist and promote the establishment of Indian regional and/or national accrediting associations for all levels of Indian Education.
                      (z) Eligibility for services. Serve Indian and Alaska Native students who are recognized by the Secretary of the Interior as eligible for Federal services, because of their status as Indians or Alaska Natives, whose Indian blood quantum is 1/4 degree or more. In the absence of other available facilities, children of non-Indian Bureau personnel or other non-eligibles may be served subject to the provisions of 25 U.S.C. 288 and 289.
                      (aa) Appropriations. Aggressively seek sufficient appropriations to carry out all policies herein established subject to the president's budget and the Department's budgetary process.

                      § 32.5
                      Evaluation of implementation of Pub. L. 95-561.
                      The Director, Office Indian Education Programs will develop guidelines for evaluating all functional and programmatic responsibilities associated with title XI of the Education Amendments of 1978 (Pub. L. 95-561), and in the January 1, 1981 annual report, as provided in section 1136, of Pub. L. 95-561 include a statement of the specific program toward implementing these policies.

                    Pt. 33
                    PART 33—TRANSFER OF INDIAN EDUCATION FUNCTIONS

                      Sec.
                      33.1
                      Definitions.
                      33.2
                      Policy.
                      33.3
                      Delegation of authority.
                      33.4
                      Redelegation of authority.
                      33.5
                      Area education functions.
                      33.6
                      Agency education functions.
                      33.7
                      Implementing procedures.
                      33.8
                      Realignment of area and agency offices.
                      33.9
                      Development of procedures.
                      33.10
                      Issuance of procedures.

                      Authority:
                      Sec. 1126, Pub. L. 95-561, Education Amendments of 1978 (92 Stat. 2143, 2391; 25 U.S.C. 2006).

                      Source:
                      44 FR 58103, Oct. 9, 1979, unless otherwise noted. Redesignated at 47 FR 13327, Mar. 30, 1982.

                      § 33.1
                      Definitions.
                      (a) Agency means that organizational unit of the Bureau which provides direct services to the governing body or bodies and members of one or more specified Indian Tribes.

                      (b) Early childhood means education activities serving the 0 to 8 year old child, including pre-natal, child care, kindergarten, homebase, homebound, and special education programs.
                      (c) Elementary and secondary education means those programs serving the child from grade one through grade twelve.
                      (d) Operating level means the organizational level at which direct educational services are performed.
                      (e) Personnel directly and substantially involved means those persons who provide services which affect the operation of Indian education programs, including (but not limited to) school or institution custodial or maintenance personnel, and whose services for Indian education programs require the expenditure of at least 51 percent of the employee's working time.
                      (f) Post-secondary means education programs that are provided for persons past the age for compulsory education to include continuing education, higher education, undergraduate and graduate, career and adult education. As used in this Act, the term Post-Secondary shall include those Bureau of Indian Affairs programs operated at Southwestern Indian Polytechnic Institute, the Institute of American Indian Arts, and Haskell Indian Junior College, and those operated at Tribally controlled community colleges under Pub. L. 95-471.

                      § 33.2
                      Policy.
                      It is the policy of the Department of the Interior that:
                      (a) Indian control of Indian affairs in all matters relating to education shall be facilitated.
                      (b) Authority to perform education functions shall be delegated directly from the Assistant Secretary-Indian Affairs to the Director, Office of Indian Education Programs.
                      (c) Administrative authority shall be compatible with program authorities; and, both shall be delegated to the operating level to assure efficient and effective delivery of education services to Indian children, youth, and adults.
                      (d) The Director, Office of Indian Education Programs shall supervise the operation of Indian education program personnel at the Arena, Agency, and the three Bureau of Indian Affairs post-secondary institutions.
                      (e) Indian Education program functions to be performed at the Area office level shall include those dealing with higher education, Johnson-O'Malley aid to non-Bureau schools, off-reservation boarding schools, those education program operations serving tribes from more than one Agency except those at the three post-secondary institutions, on-reservation education functions located at an Agency where no educational personnel are assigned, education contract operations, and adult education.

                      § 33.3
                      Delegation of authority.
                      The administrative and programmatic authorities of the Assistant Secretary—Indian Affairs pertaining to Indian education functions shall not be delegated to other than the Director, Office of Indian Education Programs. The Assistant Secretary shall publish delegations of authorities to the Director in the Bureau of Indian Affairs Manual after the effective date of these regulations.

                      § 33.4
                      Redelegation of authority.
                      The authorities of the Assistant Secretary—Indian Affairs as delegated to the Director, Office of Indian Education Programs may be redelegated by the Director to a Bureau of Indian Affairs Agency Superintendent for Education, to a Bureau Area Education Programs Director, or to a President of a Bureau of Indian Affairs post-secondary education institution.

                      § 33.5
                      Area education functions.
                      A Bureau Area Education Programs Director shall perform those Bureau of Indian Affairs education functions related to Johnson-O'Malley aid to non-Bureau schools, higher education, Bureau peripheral dormitories, adult education, off-reservation residential schools, on-reservation functions located at an Agency where no education personnel are assigned, education contract operations, and those education program operations serving Tribes from more than one Agency, except those of the Bureau's post-secondary institutions.

                      § 33.6
                      Agency education functions.
                      A Bureau Agency Superintendent for Education shall perform those education functions related to elementary and secondary education, early childhood education, peripheral dormitories which have been supervised prior to Pub. L. 95-561, and exceptional education programs as defined in 25 CFR part 32. This section shall not be construed to remove higher education, adult education and/or Johnson-O'Malley programs currently administered at the Agency level. Further, the Director under the authority of § 33.4 will periodically review Area programs such as higher education, adult education, and Johnson-O'Malley for consideration to assign to Agency level administration.

                      § 33.7
                      Implementing procedures.
                      (a) The Assistant Secretary—Indian Affairs shall:
                      (1) Implement the transfer for Indian education functions from the jurisdiction of Agency Superintendents and Area Office Directors to the Director, Office of Indian Education Programs.
                      (2) Modify existing descriptions of positions for Area Office Directors, Agency Superintendents, and all other personnel directly and substantially involved with the provisions of education services by the Bureau of Indian Affairs.
                      (b) The Director, Office of Indian Education Programs shall:
                      (1) For Area, Agency, and Bureau of Indian Affairs postsecondary institutional personnel:
                      (i) Properly list the duties of each employee required to perform functions redelegated by the Director;
                      (ii) Define the responsibilities for monitoring and evaluating education programs; and
                      (iii) Exercise supervision of these employees.
                      (2) Define responsibilities for employees providing technical and coordinating assistance for support services to the Director, Office of Indian Education Programs and his/her subordinates, including procurement, contracting, personnel, and other administrative support areas.
                      [44 FR 58103, Oct. 9, 1979. Redesignated at 47 FR 13327, Mar. 30, 1982, as amended at 49 FR 12702, Mar. 30, 1984]

                      § 33.8
                      Realignment of area and agency offices.
                      The Assistant Secretary—Indian Affairs shall implement Bureau of Indian Affairs Area Office and Agency Office reorganizations required to structure these offices consistent with education program activities to be undertaken at those levels.

                      § 33.9
                      Development of procedures.
                      The Director, Office of Indian Education Programs shall prepare and promulgate procedures to govern the provision of support services by the Bureau of Indian Affairs for the education function. These procedures shall be consistent with existing laws, regulations, Executive Orders, and Departmental policies governing administrative support services. These provisions shall be prepared in consultation with those personnel within the Bureau of Indian Affairs who are responsible to the Commissioner of Indian Affairs for providing support services.

                      § 33.10
                      Issuance of procedures.
                      The Assistant Secretary—Indian Affairs, directly or through the Commissioner of Indian Affairs, shall issue procedures in the Bureau of Indian Affairs Manual governing the provision of support services to the Bureau's Education Office function.

                    Pt. 36
                    PART 36—MINIMUM ACADEMIC STANDARDS FOR THE BASIC EDUCATION OF INDIAN CHILDREN AND NATIONAL CRITERIA FOR DORMITORY SITUATIONS

                        Subpart A—General Provisions
                        Sec.
                        36.1
                        Purpose, scope, and information collection requirements.
                        36.2
                        Applicability.
                        36.3
                        Definitions.

                        Subpart B—Educational Management
                        36.10

                        Standard I—Philosophy and goals.

                        36.11
                        Standard II—Administrative requirements.
                        36.12
                        Standard III—Program needs assessment.
                        36.13
                        Standard IV—Curriculum development.

                        Subpart C—Minimum Program of Instruction
                        36.20
                        Standard V—Minimum academic programs/school calendar.
                        36.21
                        Standard VI—Kindergarten instructional program.
                        36.22
                        Standard VII—Elementary instructional program.
                        36.23
                        Standard VIII—Junior high/middle school instructional program.
                        36.24
                        Standard IX—Secondary instructional program.

                        Subpart D—Student Instructional Evaluation
                        36.30
                        Standard X—Grading requirements.
                        36.31
                        Standard XI—Student promotion requirements.
                        36.32
                        Standard XII—Graduation requirements for a high school diploma.

                        Subpart E—Instructional Support
                        36.40
                        Standard XIII—Library/media program.
                        36.41
                        Standard XIV—Textbooks.
                        36.42
                        Standard XV—Counseling services.
                        36.43
                        Standard XVI—Student activities.

                        Subpart F—Evaluation of Educational Standards
                        36.50
                        Standard XVII—School program evaluation and needs assessment.
                        36.51
                        Standard XVIII—Office of Indian Education Programs and Agency monitoring and evaluation responsibilities.

                        Subpart G—Homeliving Programs
                        36.70
                        What terms do I need to know?
                        36.71
                        What is the purpose of this part?

                          Staffing
                          36.75
                          What qualifications must homeliving staff possess?
                          36.76
                          Who is in charge of all homeliving operations?
                          36.77
                          What are the homeliving staffing requirements?
                          36.78
                          What are the staffing requirements for homeliving programs offering less than 5 nights service?
                          36.79
                          What are the homeliving behavioral staff/student ratio requirements?
                          36.80
                          If a school or dormitory has separated boys' and girls' homeliving programs, may the same behavioral staff be used for each program?
                          36.81
                          May a homeliving program use support staff or teachers to meet behavioral health staffing requirements?
                          36.82
                          May behavioral health professional(s) provide services during the academic school day?
                          36.83
                          How many hours can a student be taken out of the academic setting to receive behavioral health services?
                          36.84
                          Can a program hire or contract or acquire by other means behavioral health professionals to meet staffing requirements?
                          36.85
                          Is a nurse required to be available in the evenings?
                          36.86
                          Are there staff training requirements?

                          Program Requirements
                          36.90
                          What recreation, academic tutoring, student safety, and health care services must homeliving programs provide?
                          36.91
                          What are the program requirements for behavioral health services?
                          36.92
                          Are there any activities that must be offered by a homeliving program?
                          36.93
                          Is a homeliving handbook required?
                          36.94
                          What must a homeliving handbook contain?
                          36.95
                          What sanitary standards must homeliving programs meet?
                          36.96
                          May students be required to assist with daily or weekly cleaning?
                          36.97
                          What basic requirements must a program's health services meet?
                          36.98
                          Must the homeliving program have an isolation room for ill children?
                          36.99
                          Are immunizations required for residential program students?
                          36.100
                          Are there minimum requirements for student attendance checks?
                          36.101
                          How often must students who have been separated for emergency health or behavioral reasons be supervised?
                          36.102
                          What student resources must be provided by a homeliving program?
                          36.103
                          What are the requirements for multipurpose spaces in homeliving programs?
                          36.104
                          What are the requirements for heating, ventilation, cooling and lighting at dormitories?

                          Privacy
                          36.110
                          Must programs provide space for storing personal effects?

                          Waivers and Accountability
                          36.111
                          Can a tribe, tribal governing body, or local school board waive the homeliving standards?
                          36.112
                          Can a homeliving program be closed, transferred, consolidated, or substantially curtailed for failure to meet these standards?
                          36.120
                          What type of reporting is required to ensure accountability?

                      Authority:
                      Section 502, 25 U.S.C. 2001; section 5101, 25 U.S.C. 2001; Section 1101, 25 U.S.C. 2002; 5 U.S.C. 301; 25 U.S.C. 2 and 9; 25 U.S.C. 2901, Title I of P.L. 101-477.

                      Source:
                      50 FR 36816, Sept. 9, 1985, unless otherwise noted.

                      Subpart A—General Provisions

                        § 36.1
                        Purpose, scope, and information collection requirements.
                        (a) The purpose of this rule is to establish minimum academic standards for the basic education of Indian children for Bureau-operated schools and for those Indian-controlled contract schools which adopt these standards and to establish national criteria for dormitory situations for schools operated by the Bureau of Indian Affairs and for Indian-controlled contract schools operating dormitories.
                        (b) The information collection requirement contained in § 36.61(a) has been approved by the Office of Management and Budget under 44 U.S.C. 3507 and assigned clearance number 1076-0092. The information is being collected to evaluate waiver request(s) from tribal government(s) and school board(s). The information will be used to ascertain the approval of academic waiver request. The obligation to respond is mandatory under 25 U.S.C. 2001. The information collection requirements contained in §§ 36.71(g), 36.74(f), and 36.76(b) of this rule are not required to be approved by the Office of Management and Budget since less than ten persons or tribes are affected by the information collection requirement of this rule. However, when ten or more persons or tribes become affected by this requirement, the Bureau will submit an approval request.
                        [50 FR 36816, Sept. 9, 1985, as amended at 70 FR 21951, Apr. 28, 2005]

                        § 36.2
                        Applicability.
                        The national criteria for dormitory situations established under subpart G serve as a minimum requirement and are mandatory for all Bureau-operated and Indian-controlled contract schools.
                        [77 FR 30891, May 24, 2012]

                        § 36.3
                        Definitions.
                        For purposes of this part, the following definitions apply:

                          Accreditation means a school has received an official decision by the State(s) department(s) of education, or another recognized agency having official authority, that, in its judgment, the school has met the established standards of quality.

                          Agency means the current organizational unit of the Bureau which provides direct services to the governing body or bodies and members of one or more specified Indian tribes.

                          Agency school board as defined in sec. 1139(1), Pub. L. 95-561, means a body, the members of which are appointed by the school boards of the schools located within such Agency. The number of such members shall be determined by the Director in consultation with the affected tribes. In Agencies serving a single school, the school board of that school shall function as the Agency school board.

                          Agency Superintendent for Education means the Bureau official in charge of education functions at an Agency and to whom the school supervisor(s) and other educators under the Agency's jurisdiction report.

                          Area Education Programs Administrator means the Bureau official in charge of Bureau education programs and functions in a Bureau Area Office and is responsible for off-reservation residential schools, and, in some cases, peripheral dormitories and on-reservation day schools not receiving services from the Agency Superintendent for Education.

                          Assistant Secretary means the Assistant Secretary for Indian Affairs of the Department of the Interior.

                          Authentic assessment means the testing of higher order thinking skills by monitoring performance of tasks requiring analysis, creativity, and application skills in real life situations.

                          Average daily membership (ADM) means the aggregate days membership of a given school during a given reporting period divided by the number of days school is in session during this period. Only days on which the students are under the guidance and direction of teachers shall be considered as days in session. The reporting period is generally a given regular school term.

                          Basic academic skills means the abilities acquired by observation, study, or experience in mental and/or physical performance (e.g., proficiency in planning and investigating, operational techniques, comprehension, organization, execution, remembrance and application of knowledge to acquire a desired result) basic to the mastery of school work or other activity.

                          Basic education means those components of education emphasizing literacy in language arts, mathematics, natural and physical sciences, history, and related social sciences.

                          Bureau means the Bureau of Indian Affairs of the Department of the Interior.

                          Certification means the general process by which the State or Agency authorized by the State adjudges and stipulates that an individual meets the established standards which are prerequisite to employment for a teacher or administrator in education.

                          Competency means having the requisite abilities, skills, or a specified level of mastery.

                          Computer literacy used here means the general range of skills and understanding needed to function effectively in a society increasingly dependent on computer and information technology.

                          Content area means the usual school subjects of instruction, such as: Language arts, mathematics, science, social studies, fine arts, practical arts, health, and physical education.

                          Counselor means a staff member, including those in both academic and dormitory situations, who helps the students to understand educational, personal, and occupational strengths and limitations; to relate abilities, emotions, and aptitudes to educational and career opportunities; to utilize abilities in formulating realistic plans; and to achieve satisfying personal and social development.

                          Course of study means a written guide prepared by administrators, supervisors, consultants, and teachers of a school system or school, as an aid to teaching a given course or an aspect of subject-matter content to a given category of pupil.

                          Criterion-referenced test means an achievement test designed to measure specific skills within a subject area. Test results indicate which skills a student has or has not learned.

                          Days means calendar days.

                          Director means the Director of the Office of Indian Education Programs in the Bureau.

                          Dormitory means a facility which provides students boarding and lodging on a temporary residential basis for the purpose of attending a Bureau-operated or Indian-controlled contract or public school.

                          Dormitory manager means a staff member who manages the day-to-day, 24-hour operation of one or more dormitories.

                          Elementary school is defined as any combination of grades K-8 except when any of these grades are included in the junior high or middle school level.

                          Exceptional child program means a program for students who are eligible to receive education and related services as defined by 25 CFR 39.11(i).

                          Feeder school means a school whose exiting students are absorbed by a school offering instruction on the next higher grade level.

                          Formative evaluation is an evaluation of progress during the implementation of a program. Its purpose is to provide immediate feedback on results to enable modifying the processes used in order to enhance success and prevent failure.

                          Goals means a statement of what the school system is attempting to do to meet the comprehensive educational needs and interests of its pupils, in accordance with its statement of philosophy.

                          Grade means the portion of a school program which represents the work of one regular school year; identified by a designation such as kindergarten, grade 1 or grade 10.

                          Grade level is a designation applied to that portion of the curriculum which represents the work of one regular school year.

                          High school is defined as grades nine through twelve, except when grade nine is included in the junior high or middle school organizational unit.

                          Higher order thinking skills (or advanced skills) means skills such as reading comprehension, written composition, and mathematical reasoning. They differ from basic or discrete skills such as phonetic decoding and arithmetic operations.

                          Indian-controlled contract school means a school that is operated by a tribal organization and funded under a contract with the Bureau.

                          Indian student means a student who is a member of an Indian tribe and is one-quarter (1/4) or more degree of Indian blood quantum.

                          Indian tribe or tribe means any Indian tribe, band, nation, rancheria, pueblo, colony or community, including any Alaska Native village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688), which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.

                          Intense residential guidance means the program for residential students who need special residential services due to one or more of the problems as stated in 25 CFR 39.11(h).

                          Junior high or middle school is defined as grades seven and eight, but may include grade six when it is not included in the elementary school level and/or grade nine when it is not included in the high school level.

                          Kindergarten means a group of students or a class that is organized to provide educational experiences for children for the year immediately preceding the first grade.

                          Librarian means a certificated school employee whose principal responsibilities include selection, acquisition, preparation, cataloging, and circulation of books and other printed materials; planning the use of the library by teachers and students; and instructing students in the use of library books and materials, whether the library is maintained separately or as a part of an instructional materials center.

                          Local school board when used with respect to a Bureau-operated school means a body chosen in accordance with the laws of the tribe to be served or, in the absence of such laws, the body elected by the parents of the Indian children attending a Bureau-operated school. In schools serving a substantial number of students from different tribes, the members shall be appointed by the governing bodies of the tribes affected and the number of such members shall be determined by the Director in consultation with the affected tribes.

                          Objectives means a statement of the general, long-range aims and the specific, short-range aims which indicate what the school is attempting to do to meet the needs of the students in accordance with the philosophy, goals, and policies of the school system.

                          Paraprofessional means a staff member who works with and is under the supervision of a professional staff member but who does not have full professional status, e.g., teacher aide. The term denotes a level of knowledge and skills possessed by an individual or required of an individual to perform an assignment. The level of skills is usually at a predetermined minimum level.

                          Parent means a natural parent or guardian or a person legally acting as parent.

                          Peripheral dormitory is a facility which provides students boarding and lodging during the school year for the purpose of attending a public school.

                          Regular program student means all students including those determined to be eligible for services as defined under the Exceptional Child Program, 25 CFR 39.11(i).

                          Residential school means an educational institution in which students are boarded and lodged as well as taught.

                          Residential Services under Exceptional Child Program means a program providing specialized residential care as determined by 25 CFR 39.11(i).

                          School means an educational institution, including elementary, junior high or middle, high school, peripheral, cooperative, and contract schools serving students in grades Kindergarten through 12 and as further defined under 25 CFR 39.2(q).

                          School board means an Agency or local school board.

                          School day, instructional day, or teaching day is a day on which the school is open and students are under the guidance and direction of teachers in instructional activities where the minimum number of instructional hours are met.

                          School Supervisor means the official in charge of a school and/or peripheral dormitory who reports to an Agency School Superintendent or an Area Education Programs Administrator, as appropriate.

                          Secretary means the Secretary of the Interior.

                          Self-contained class means a class having the same teacher or team of teachers for all or most of the daily session.

                          Standard means the established criterion and/or specified requirement which must be met and maintained.

                          Summative evaluation means a systematic analysis of the results or products of a program after it is completed. Its purpose is to determine the extent to which the objectives of the program have or have not been achieved. One form of summative evaluation compares results with those of another “control” program using different procedures. Other forms compare results with past results or predetermined target outcomes.

                          Teacher means a certified staff member performing assigned professional activities in guiding and directing the learning experiences of pupils in an instructional situation.

                          Unit/Unit of instruction means a major subdivision of instruction generally composed of several topics including content and learning experiences developed around a central focus such as a limited scope of subject matter, a central program, one or more related concepts, one or more related skills, or a combination of these. One unit equals one full year of instruction in a subdivision thereof. Unit and credit shall be used interchangeably.
                        [50 FR 36816, Sept. 9, 1985, as amended at 59 FR 61765, Dec. 1, 1994]

                      Subpart B—Educational Management

                        § 36.10
                        Standard I—Philosophy and goals.
                        (a) Each school shall develop a written mission statement and philosophy of education that addresses the accumulation of knowledge and development of skills, interests, appreciations, ideals, and attitudes within the school's total educational program. A statement of expected outcomes shall outline what the school is attempting to do to meet the needs and interests of its students and community in accordance with the school's mission statement and philosophy.
                        (b) The statement of philosophy and goals shall be developed with the involvement of students, parents, lay citizens, school staff, and tribe(s) and shall be formally adopted by the local school board.
                        (c) The philosophy and goals shall be reviewed annually and revised as necessary by each school.
                        (d) A copy of the philosophy and goals shall be submitted to the Agency Superintendent for Education or Area Education Programs Administrator, as appropriate.
                        (e) Informational provisions shall be developed in the form of a manual, handbook, brochure, or other written document(s) of the minimum academic standards of the school's programs and the basic rules and procedures of the school. The staff, students, and parents shall receive the written document or documents and have same explained to all who request explanation. The topics covered in the document(s) shall include but not be limited to the following:
                        (1) Statement of philosophy and goals;
                        (2) Description of how policies are developed and administered;
                        (3) A brief explanation of curricular offerings;
                        (4) A copy of student rights handbook;
                        (5) Basic practices related to:
                        (i) Grading system;
                        (ii) Graduation requirements, if applicable;
                        (iii) Attendance policies;
                        (iv) Special programs at the school; and
                        (v) Student activities available for students.
                        [50 FR 36816, Sept. 9, 1985, as amended at 59 FR 61765, Dec. 1, 1994]

                        § 36.11
                        Standard II—Administrative requirements.
                        (a) Staffing. Each school shall, at a minimum, meet the following requirements:

                        (1) The overall school ratio of regular program students to regular program teachers in self-contained classrooms shall not exceed the following except under the conditions set forth in paragraphs (a)(4) (i) and (ii) of this section. Average daily membership (ADM) shall be used in meeting the following ratios.

                            Level
                            Ratio

                            Kindergarten
                            20:1

                            1st grade—3rd grade
                            22:1

                            4th grade—high school
                            25:1

                        (2) Multi-grade classrooms that cross grade-level boundaries (e.g., K-1, 3-4, etc.) shall use the maximum of the lower grade. In grades K-8, grades shall be consolidated to meet the teacher ratios listed above.
                        (3) The daily teaching load per teacher in departmentalized classes shall not exceed 150 students (ADM) except in activity type classes such as music and physical education.
                        (4) Schools exceeding these specific staffing ratios for over 30 consecutive days during one school year shall submit a justification for a request for a waiver to the Director, through the Agency Superintendent for Education or Area Education Programs Administrator, as appropriate, which may be approved for a period not to exceed one school year and for the following reasons:
                        (i) Additional classroom space is not available for establishing another class; or
                        (ii) The school, Agency, Area and Office of Indian Education Programs Applicant Supply File has been exhausted and the required teacher position cannot be filled. However, efforts to fill the vacancy shall be continued.
                        (5) Each school shall provide, in the absence of a regular teacher, a certified substitute teacher who meets the State substitute teacher qualifications. In the event that such a substitute is not available, coverage will be provided by a school employee designated by the school supervisor. A class cannot have as a teacher an employee without teaching credentials for more than 20 school days during any one school year.
                        (b) Written school enrollment and attendance policies. Each school shall have written school enrollment and attendance policies in compliance with and/or consistent with 25 CFR 31, Federal Schools for Indians, the statutes of the State, and tribal education ordinances.
                        (c) Immunization. School children shall be immunized in accordance with the regulations and requirements of the state in which they attend school or standards of the Indian Health Service.
                        [50 FR 36816, Sept. 9, 1985, as amended at 59 FR 61765, Dec. 1, 1994; 70 FR 21951, Apr. 28, 2005]

                        § 36.12
                        Standard III—Program needs assessment.
                        The policy and procedures of each school and its curricula shall be developed and revised based on an assessment of educational needs. This needs assessment shall be conducted at least every seven (7) years at the same frequency as required in § 36.50, School Program Evaluation. This assessment shall include at least the following:
                        (a) A clear statement of student educational goals and objectives. A student educational goal is defined as a statement of the knowledge, skills, attitudes, or concepts students are expected to exhibit upon completion of a grade level. Student educational objectives are defined as statements of more specific knowledge, skills, attitudes, or concepts students must exhibit in order to achieve the goal.
                        (b) The collection of appropriate data from which valid determinations, judgments, and decisions can be made with respect to the status of the educational program, e.g.,
                        (1) Perceptions of the parents, tribes, educators, and the students with regard to the relevance and importance of the goals.
                        (2) The extent to which educational goals and objectives have been achieved.
                        (3) The data developed as a result of the evaluation outlined in § 36.50 School Program Evaluation.
                        (c) A statement of educational needs which identifies the difference between the current status of students and the desired goals for the students.
                        (d) A plan of action to remediate assessed needs.

                        § 36.13
                        Standard IV—Curriculum development.
                        (a) Each school shall implement an organized program of curriculum development involving certified and non-certified staff and shall provide the opportunity for involvement by members of the local community.
                        (b) Curriculum development program activities shall be based on an analysis of school programs and shall be related to needs assessment and evaluation.
                        (c) Each school shall involve staff and provide the opportunity for involvement by the tribal community in planning programs, objectives, and activities which meet student/teacher needs.

                      Subpart C—Minimum Program of Instruction

                        § 36.20
                        Standard V—Minimum academic programs/school calendar.
                        (a) If an emergency arises from an uncontrollable circumstance during the school day which results in the dismissal of students by the school administration, the day may be counted as a school day provided that three-fourths of the instructional hours are met.
                        (b) The educational program shall include multi-culture and multi-ethnic dimensions designed to enable students to function effectively in a pluralistic society.
                        (1) The school's language arts program shall assess the English and native language abilities of its students and provide instruction that teaches and/or maintains both the English and the primary native language of the school population. Programs shall meet local tribal approval.
                        (2) The school program shall include aspects of the native culture in all curriculum areas. Content shall meet local tribal approval.
                        (3) The school program shall assess the learning styles of its students and provide instruction based upon that assessment. The method for assessing learning styles shall be determined at the local level.
                        (4) The school program shall provide for at least one field trip per child per year to broaden social and academic experiences.
                        (c) All intraschool programs (e.g., library, instructional labs, physical education, music, etc.) which are directly related to or affect student instruction shall provide services from the beginning of the school term through the final class period at the close of the school term.
                        [50 FR 36816, Sept. 9, 1985, as amended at 59 FR 61765, Dec. 1, 1994; 70 FR 21951, Apr. 28, 2005]

                        § 36.21
                        Standard VI—Kindergarten instructional program.
                        (a) The curriculum for kindergarten shall provide children with experiences which emphasize language development, native language where necessary as determined by 25 CFR 39.11(g), and performance of the requirements in paragraph (b) of this section. Such programs shall assist children in developing positive feelings toward themselves and others.
                        (b) A kindergarten instructional program shall include but not be limited to:
                        (1) Language (observing, listening, speaking).
                        (2) Exploration of the environment (number, space and time relationships, natural science).
                        (3) Psychomotor and socialization development.
                        (4) Development of imaginative and creative tendencies.
                        (5) Health education inclusive of the requirements contained in the Act of May 20, 1886, 24 Stat. 69.

                        § 36.22
                        Standard VII—Elementary instructional program.
                        (a) The elementary instruction programs, grades one through six, shall include but need not be limited to:
                        (1) Language arts.
                        (2) Mathematics.
                        (3) Social studies.
                        (4) Sciences.
                        (5) Fine arts.
                        (6) Physical education.
                        (b) Each school shall integrate the following content areas into its curriculum:
                        (1) Career awareness,
                        (2) Environmental and safety education,

                        (3) Health education (includes requirements contained in 24 Stat. 69),

                        (4) Metric education, and
                        (5) Computer literacy.

                        § 36.23
                        Standard VIII—Junior high/middle school instructional program.
                        (a) The instructional program shall reflect the school's philosophy and the needs of the students and the community. It shall be part of a progressive development that begins in the elementary program which precedes it and continues to the secondary program which follows.
                        (b) The curriculum shall include the following required instructional content areas at each grade level but need not be limited to:
                        (1) Language arts. One unit shall be required of each student every year.
                        (2) Social studies. One unit shall be required of each student every year.
                        (3) Mathematics. One unit shall be required of each student every year.
                        (4) Science. One unit shall be required of each student every year.
                        (5) Fine arts and practical arts. One unit each shall be required of each student in the junior high/middle school instructional program.
                        (6) Computer literacy. One unit shall be required of each student in the junior high/middle school instructional program.
                        (7) Physical education. One unit shall be required of each student in the junior high/middle school instructional program.
                        (c) The following content areas shall be integrated into the curriculum.
                        (1) Career exploration and orientation.
                        (2) Environmental and safety education.
                        (3) Metric education.
                        (4) Consumer economics (including personal finances).
                        (5) Health education (includes meeting the requirements contained in 24 Stat. 69).
                        (d) Languages other than English are encouraged to be offered as a content area beginning at junior high/middle school level.
                        (e) Student enrollment in any laboratory or vocational exploration class shall be consistent with applicable health and safety standards.

                        § 36.24
                        Standard IX—Secondary instructional program.
                        (a) The secondary instructional program shall reflect the philosophy of the student, tribe, community, and school, and an awareness of the changing world.
                        (b) The secondary instructional curriculum shall include the following content areas:
                        (1) Language arts (communication skills).
                        (2) Sciences.
                        (3) Mathematics.
                        (4) Social studies.
                        (5) Fine arts and practical arts.
                        (6) Physical education.
                        (7) Languages other than English.
                        (8) Driver education. (See guidelines available from the applicable State Department of Education.)
                        (9) Vocational education. Curriculum shall be designed and directly related to actual occupational trends (national, regional, and local) and to introduce and familiarize students with various occupations in technology, industry and business, as well as required special skills and the training requisites. Programs shall be directed toward assisting students in making career choices and developing consumer skills and may include the following:
                        (i) Vocational exploration,
                        (ii) Vocational skill development, and
                        (iii) School/on-the-job cooperative education programs.
                        (c) The following shall be integrated into the curriculum:
                        (1) Consumer economics (including personal finances),
                        (2) Metric education,
                        (3) Safety education, and
                        (4) Health education. (In addition, the program shall meet the requirements contained in 24 Stat. 69.)
                        (d) The high school program shall provide program coordination with feeder schools, career direction, and preparation for the student entering independent living through employment, post-secondary education, and/or marriage.

                        (e) Yearly class schedules shall take into account the graduation requirements of each student.

                        (f) Student enrollment in any laboratory or vocational class shall be consistent with applicable health and safety standards.
                        (g) Schools are encouraged to provide alternative programs that lead to high school completion for secondary students who do not function successfully in the regular academic setting.
                        [50 FR 36816, Sept. 9, 1985, as amended at 59 FR 61765, Dec. 1, 1994]

                      Subpart D—Student Instructional Evaluation

                        § 36.30
                        Standard X—Grading requirements.
                        (a) Each school shall implement a uniform grading system which assesses a student's mastery of the prescribed objectives of the courses of study undertaken. The mastery of prescribed course objectives shall be the primary measure of academic attainment for reporting student grades on report cards.
                        (b) The information derived from student instructional evaluations shall be shared with the student and with the parents and shall be used to give teachers and students direction for subsequent learning activities.
                        (c) Parent/teacher and parent/teacher/student conferences focused on the student's instructional progress and development shall be held, where feasible and practical, to provide an additional means of communication between home and school. Residential schools may meet this standard by documenting the communication of student grades on report cards to parents.
                        (d) Each school shall issue a report card to parents of students who are under the age of eighteen (18) and to students eighteen (18) years of age and older on a regular basis, but not less than four (4) times yearly. The report card shall include, but not be limited to, the following sections:
                        (1) Recommendations and probable promotion status;
                        (2) Appropriate signatures and request for return of report cards; and
                        (3) Student attendance record.
                        (e) A summary of each year's final card shall become part of the student's permanent school record.

                        § 36.31
                        Standard XI—Student promotion requirements.
                        Each school shall establish and implement a promotion policy which shall be submitted to and approved by the local school board and Agency Superintendent for Education or Area Education Programs Administrator, as appropriate. The requirements shall include, but not be limited to, the following:
                        (a) Each grade level or equivalent shall have a minimum criteria for student promotion based primarily on measurable mastery of the instructional objectives.
                        (b) Criterion-referenced tests that evaluate student skills shall be utilized for measuring the mastery of instructional objectives. The evaluation results shall form the basis for the promotion of each student.
                        (c) A student who has not participated, either directly or through approved alternative instructional methods or programs, in a minimum of 160 instructional days per academic term or 80 instructional days per semester without a written excused absence shall not be promoted. A school board or a school committee may review a promotion decision and, if warranted due to compelling and/or extenuating circumstances, rescind in writing such action on a case-by-case basis. Alternative instructional methods shall be submitted in writing for approval by the Agency Superintendent for Education or Area Education Programs Administrator, as appropriate.

                        § 36.32
                        Standard XII—Graduation requirements for a high school diploma.
                        Graduation requirements contained under this section shall be applied beginning with the graduating class of the 1987-88 school year.
                        (a) Satisfactory completion of a minimum number of units shall be the measure for the issuance of a high school diploma.

                        (b) To graduate, a student shall earn 20 units in a four year high school program unless the state in which the school is located exceeds these requirements, in which case the state's requirements shall apply; fifteen (15) units shall be required as follows:

                        (1) Language arts—four (4) units.
                        (2) Mathematics—three (3) units.
                        (3) Social studies—three (3) units.
                        (i) One (1) unit in United States history;
                        (ii) One-half (1/2) unit in civics/government;
                        (iii) One-half (1/2) unit in tribal history/government;
                        (iv) One-half (1/2) unit in Indian studies; and
                        (v) One-half (1/2) unit in any other social studies;
                        (4) Science—two (2) units.
                        (i) One (1) unit in the general science area.
                        (ii) One (1) unit in laboratory science areas, i.e., chemistry, physics, biology, zoology, laboratory anatomy.
                        (5) Physical education—one (1) unit.
                        (6) Practical arts—one (1) unit. Credit in any vocational course may also be used to satisfy this required unit.
                        (7) Fine arts—one (1) unit. Music, art, dance, drama, theatre, and other fine arts courses may be used to satisfy this required unit. These are minimum requirements; local schools may establish academic or vocational requirements beyond those prescribed by these standards.
                        (c) A school with an average enrollment of fewer than 75 students may offer subjects in alternate years. If schools use this pattern, alternating pairs of subjects shall be listed and approved by the Agency Superintendent for Education or Area Education Programs Administrator, as appropriate.
                        (d) Credits earned through approved correspondence or extension study may be accepted if such credits are from schools approved or accredited by the state in which they are located or by a college or university which is regionally accredited for such purposes.
                        (e) Students who successfully complete the requirements of the High School Proficiency Examination in the State in which the school is located shall receive an endorsement so stating on their diplomas.

                      Subpart E—Instructional Support

                        § 36.40
                        Standard XIII—Library/media program.
                        (a) Each school shall provide a library/media program which shall, as a minimum, meet the applicable state and/or regional standards, but shall not be limited to these, and shall include the following:
                        (1) A written set of instructional and service objectives shall be established that is integrated and consistent with the school's educational goals and philosophy. The librarian or educational media specialist, with students and staff, shall set objectives based on assessed academic and residential needs. The program and services will be evaluated yearly by the principal and the librarian or educational media specialist to determine the degree to which all objectives have been met.
                        (2) A written policy for the selection of materials and equipment shall be developed by a library committee in collaboration with the librarian and be approved by the school board. The collection of materials shall include as a minimum the following:
                        (i) A collection of books suitable for the range of student abilities and interests being served in the following ADM ratios.
                        (A) Elementary K-6, 15 books per student
                        (B) Middle 7-8, 12 books per student
                        (C) Secondary 9-12, 10 books per student
                        It is required that materials pertaining to Indian Tribes and/or Alaskan Natives be integrated within this basic collection.
                        (ii) Eight (8) to 12 percent of the basic collection must be composed of reference books, currently relevant and in a state of good physical condition, for practical use. Single copies of the principal textbooks used to complement instruction shall be in the collection, but textbooks cannot be counted toward this standard.
                        (iii) A periodical collection, suitable for the range of student abilities and interests being served, consisting of one (1) periodical for every ten (10) students, shall be maintained. Schools of over 200 will have a base collection of 20 periodicals.

                        (iv) A professional collection for the school staff shall be developed and maintained by the librarian in cooperation with a faculty committee.

                        (v) A variety of audio-visual materials, suitable for the range of instruction being provided, of at least 750 items or five (5) items for each student, whichever is larger, and inclusive of materials located in the classrooms shall be maintained. This category includes some of each of the following: Tactile objects, globes, models, maps, films, film-strips, microforms, slides, audio and video tapes, recordings, transparencies and graphics, and the equipment to use all of these. Multiple items within a specific set of materials will be counted as separate items.
                        (3) There shall be a library media center serviced by a librarian. Schools with fewer than 200 students are encouraged, wherever feasible, to cooperate in sharing librarian resources. Schools within an Agency and/or Area may cooperatively share the costs and services of a librarian who shall facilitate sharing of the combined available resources among the cooperating schools in accordance with the following ratios:

                          School Enrollment (ADM)
                          Up to 100—1/5 time librarian
                          101-200—1/5 time librarian and 1/2 time library aide or 20 hours of library activity
                          201-400—1 full-time librarian or 2/5 time librarian provided the school has a full-time library aide
                          401 + —1 full-time librarian and a full-time library aide

                        (4) All libraries must conduct an annual inventory of available books, materials, and equipment in accordance with the acquisitions and selection policies.

                        § 36.41
                        Standard XIV—Textbooks.
                        (a) Each school shall establish a textbook review committee composed of teachers, parents, and students, and school board members. Appointment to the textbook review committee shall be subject to school board approval.
                        (b) The textbook review committee shall establish a procedure and criteria for the annual review of textbooks and other materials used to complement instruction. The criteria shall include, but not be limited to, the following:
                        (1) The textbook content shall meet the course objectives which are within the adopted school curriculum.
                        (2) The textbooks shall, as much as possible, reflect cultures accurately.
                        (3) The textbooks shall be current, in good physical condition, and varied in reading levels.
                        (c) Each school shall equitably distribute instructional materials to all classrooms. Each school shall inventory all property and equipment annually prior to requisitioning additional materials. Copies of the inventory shall be kept on file by the school staff.

                        § 36.42
                        Standard XV—Counseling services.
                        Each school shall offer student counseling services concerned with physical, social, emotional, intellectual, and vocational growth for each individual. Counseling services shall be included in a school-wide assessment program.
                        (a) Each Agency and Area, as appropriate, shall institute and supervise an assessment program for its schools in order to provide for the objective assessment of student academic performance. Required formal tests shall be administered annually to all regular program students in grades 4, 8, and 12. (The testing of special education and gifted/talented students shall be in accordance with respective regulations.) If required by state certification standards, schools may use the state mandated academic achievement tests and accompanying requirements. These formal tests and their subtest contents, as well as the test-related procedures, shall include, but not be limited to, the following:
                        (1) Each Spring, schools shall conduct testing for grades 4, 8, and 12 using a current version of a standardized academic achievement test based upon the national assessment standards designed to assess higher order thinking skills. All schools shall keep a current record, with the Office of Indian Education Programs, of the test the school administers each Spring and the testing dates.
                        (2) Schools shall use some form of performance-based or authentic assessment in addition to standardized achievement testing.

                        (3) Each school shall report the summative results of its assessment program to its respective Agency or Area, as appropriate, and its school board.
                        (4) Parents/guardians shall be informed of their children's assessment results and provided with an explanation and interpretation to ensure adequate understanding of the results.
                        (5) Each school's instructional program shall establish an ongoing student academic assessment program to ensure that defined assessment procedures are in place. The program shall include regular training in basic assessment procedures and routines for all teachers and other staff involved in student assessment.
                        (6) Each Agency and Area, as appropriate, shall report the results of each school's formal Spring tests to the Office of Indian Education Programs by August 1 of each year. Summative information from performance-based and authentic assessments shall be reported at the same time.
                        (b) Each counseling program shall provide the following:
                        (1) Each school having a minimum school ADM of 200 students shall make provisions for the full-time professional services of a counselor, and each school enrolling fewer than 200 students shall make provisions for a part-time professional counselor.
                        (2) The counselors shall be familiar with the unique tribal, social, and economic characteristics of students.
                        (3) The counseling program shall contain the following:
                        (i) A written referral procedure;
                        (ii) Counseling techniques and documentation procedures to provide for the career, academic, social, and personal needs of the students which are based on the cultural beliefs and values of the students being served;
                        (iii) Preventative and crisis counseling on both individual and group bases;
                        (iv) Confidentiality and security of counseling records for each student; and
                        (v) Design and implementation of orientation programs to facilitate the pupil's transition from elementary to junior high/middle school and from junior high/middle school to high school.
                        (vi) Each junior or middle school and high school student shall receive academic counseling a minimum of twice yearly during which time the counselor shall assist the student in developing a written academic and career plan based on ability, aptitude, and interests. Additionally, counselors will assist high school students in selecting courses which satisfy the school's and the state's graduation requirements and the student's academic and career plan. Further, seniors will be given aid in completing registration and/or financial assistance applications for either vocational or academic post-secondary institutions.
                        (vii) Each high school counseling program shall be required to have on file for each student a planned academic program of studies which is available from the regular course offerings of the school to meet the student's career objectives and which will show that the student has received counseling.
                        [50 FR 36816, Sept. 9, 1985, as amended at 59 FR 61766, Dec. 1, 1994]

                        § 36.43
                        Standard XVI—Student activities.
                        All schools shall provide and maintain a well-balanced student activities program based on assessment of both student and program needs. Each activity program shall help develop leadership abilities and provide opportunities for student participation but not be limited to activities that include special interest clubs, physical activities, student government, and cultural affairs. The activity program shall be an integral part of the overall educational program.
                        (a) All student activities shall be required to have qualified sponsors and be approved by the school supervisor, and the school board shall approve the overall activity plan. A qualified sponsor is a professional staff member of the school that is given responsibility to provide guidance or supervision for student activities.
                        (b) A plan of student activity operations shall be submitted, by each activity at the beginning of each school year, to the school supervisor. The plan will include the purpose, structure, coordination, and planned types of fund-raising activities.

                        (c) School may participate in interscholastic sports and activities on an informal or formal basis. On an informal basis, the Bureau-operated schools will coordinate with other schools in setting up a schedule of sports and games. Schools that participate in state-recognized leagues will abide by those state rules regulating inter-school competition.
                        (d) Until comparable competitive opportunities are provided to all students, regardless of sex, no student shall be barred from participation in interscholastic competition in noncontact sports except on the basis of individual merit.
                        (e) Residential schools shall plan and provide an intramural program for all students. The program shall include a variety of scholastic and sport activities.
                        (f) Students shall be involved only in activities which are sanctioned by the school.
                        (g) All student activities involved only in fund raising are required to establish a school/student activity bank account following school/student banking procedures outlined under 25 CFR 31.7. All student activity accounts shall be audited annually.
                        (h) The school shall provide for the safety and welfare of students participating in school-sponsored activities.
                        (i) Each sponsor of a student activity will be given orientation and training covering the responsibilities of a sponsor by the school supervisor.

                      Subpart F—Evaluation of Educational Standards

                        § 36.50
                        Standard XVII—School program evaluation and needs assessment.
                        Each school shall complete a formal, formative evaluation at least once every seven (7) years beginning no later than the second complete school year following the effective date of this part. Schools shall follow state and/or regional accreditation, or accreditation requirements equal to the state in which a school is located. Each school shall follow the prescribed evaluation cycle. The primary purpose of this evaluation will be to determine the effects and quality of school programs and to improve the operations and services of the school programs.
                        (a) Each school's evaluation design or model will provide objective and quantitative analysis of each area to be evaluated. The analysis shall include product and process evaluation methods. The areas to be reviewed will include, but not be limited to, the following:
                        (1) School philosophy and objectives.
                        (2) Administrative and organizational requirements.
                        (3) Program planning and implementation.
                        (4) Curriculum development and instruction.
                        (5) Primary education.
                        (6) Program of studies for elementary, junior high/middle, and high schools.
                        (7) Grading requirements.
                        (8) Promotion requirements.
                        (9) High school graduation requirements.
                        (10) Library/media.
                        (11) Textbooks and other instructional materials.
                        (12) Counseling services.
                        (13) Medical and health services.
                        (14) Student activities.
                        (15) Transportation services.
                        (16) Staff certification and performance.
                        (17) Facilities (school plant).
                        (18) Parent and community concerns.
                        (19) School procedures and policies.
                        (20) School board operations.
                        (b) The Director, within six (6) months from the effective date of this part, shall distribute to each school, Agency or Area, as appropriate, a standardized needs assessment and evaluation instrument with guidelines for developing and applying a locally appropriate evaluation model for carrying out the requirements of this standard.

                        § 36.51
                        Standard XVIII—Office of Indian Education Programs and Agency monitoring and evaluation responsibilities.

                        (a) The Office of Indian Education Programs shall monitor and evaluate the conformance of each Agency or Area, as appropriate, and its schools with the requirements of this part. In addition, it shall annually conduct onsite monitoring at one-third of the Agencies and Areas, thereby monitoring onsite each Agency and/or Area at least once every three (3) years. Within 45 days of the onsite visit, the Director shall issue to each Agency Superintendent for Education or Area Education Programs Administrator, as appropriate, a written report summarizing the monitoring findings and ordering, as necessary, required actions to correct noted deficiencies.
                        (b) Each Agency or Area, as appropriate, in conjunction with its school board shall monitor and evaluate the conformance of its school with the requirements of this part through an annual onsite evaluation involving one-third of the schools annually, thereby monitoring onsite each school at least once every three (3) years. Within 30 days of the onsite visit, the Agency Superintendent for Education or Area Education Programs Administrator, as appropriate, shall issue to the local school supervisor and local school board a written report summarizing the findings and ordering, as necessary, required actions to correct noted deficiencies.
                        (c) Schools, Agencies, and Areas shall keep such records and submit to the responsible official or designee accurate reports at such times, in such form, and containing such information as determined by that official to be necessary to ascertain conformance with the requirements of this part.
                        (d) Schools, Agencies, and Areas shall permit access for examination purposes by the responsible official, or any duly authorized designee, to any school records and other sources of information which are related or pertinent to the requirements of this part.
                        (e) The Office of Indian Education Programs, Agency Superintendent for Education, or Area Education Programs Administrator, as appropriate, shall annually conduct a summative evaluation to assess the degree to which each Bureau educational policy and administrative procedure assists or hinders schools in complying with the requirements of this part. This will include, but not be limited to, the following actions:
                        (1) Evaluate current policies and practices not related to this part and the effects thereof on the amount of time and resources required which otherwise would be available for these standards;
                        (2) Modify any policies and practices which interfere with or compromise a school's capability to achieve and maintain these standards;
                        (3) Invite non-Federal agencies to evaluate the effects current policies and procedures have had on complying with the requirements of this part; and
                        (4) Submit annually to the Director a copy of the summative evaluation.

                      Subpart G—Homeliving Programs

                        Authority:
                        25 U.S.C. 13; 25 U.S.C. 2008; Pub. L. 107-110 (115 Stat. 1425).

                        Source:
                        72 FR 68498, Dec. 5, 2007, unless otherwise noted.

                        § 36.70
                        What terms do I need to know?
                        The following definitions apply to this subpart:

                          Behavioral health professional means a State licensed or State certified Social Worker, School Counselor, Drug and Alcohol Counselor, School Psychologist, or School Psychometrist responsible for coordinating a broad range of needs including:
                        (1) Support groups;
                        (2) Individual counseling;
                        (3) Crisis intervention;
                        (4) Preventive activities; and
                        (5) Coordination of referrals and outside services with appropriate providers.

                          Behavioral Health Program means a homeliving based service designed to decrease barriers to learning or increase positive, personal well-being by:
                        (1) Providing early intervention services, coordinating crisis intervention and prevention services;
                        (2) Promoting a positive social and emotional environment;
                        (3) Reducing the incidence of problems; and
                        (4) Referring students with behavioral needs that require professional medical care to an appropriate residential care facility.

                          Behavioral health services means the services provided by a school behavioral health program as defined in this section.

                          Homeliving Manager means the employee responsible for direct supervision of the homeliving program staff and students.

                          Homeliving Program means a program that provides room and board in a boarding school or dormitory to residents who are either:
                        (1) Enrolled in and are current members of a public school in the community in which they reside; or
                        (2) Members of the instructional program in the same boarding school in which they are counted as residents and:
                        (i) Are officially enrolled in the residential program of a Bureau-operated or funded school; and
                        (ii) Are actually receiving a homeliving program provided to all students who are provided room and board in a boarding school or dormitory.

                          Homeliving Program Staff means the employee(s) responsible for direct supervision of students in the homeliving area.

                          Homeliving Supervisor means the employee with overall administrative responsibility for supervising students, programs, and personnel in the homeliving area.

                        § 36.71
                        What is the purpose of this part?
                        The purpose of this part is to establish standards for homeliving programs.

                        Staffing

                          § 36.75
                          What qualifications must homeliving staff possess?
                          (a) Homeliving staff must possess the qualifications shown in the following table:

                              Position
                              Required training

                              (1) Homeliving Supervisor
                              Must be qualified based on size and complexity of the school, but at minimum possess a bachelor's degree.

                              (2) Homeliving Manager
                              Must be qualified based on the size and complexity of the student body but must at a minimum have an associate's degree no later than 2008.

                              (3) Homeliving Program Staff
                              Must have at least 32 post-secondary semester hours (or 48 quarter hours) in an applicable academic discipline, including fields related to working with children, such as, child development, education, behavioral sciences and cultural studies.

                          (b) A person employed as a homeliving program staff:
                          (1) Should meet the requirements of paragraph (a) of this section by the 2009-2010 school year; and
                          (2) May, upon showing good cause, petition the school supervisor (or the homeliving supervisor for peripheral dorms) for a waiver from the new qualifications.

                          § 36.76
                          Who is in charge of all homeliving operations?
                          One staff member who has the authority to ensure the successful functioning of all phases of the homeliving program should be designated as in charge of all homeliving operations. All staff should be advised of the lines of authority through an organizational chart approved by the local board responsible for operations of the homeliving program.

                          § 36.77
                          What are the homeliving staffing requirements?
                          Homeliving programs must meet the staffing requirements of this section.
                          (a) Effective with the 2009-2010 school year, each homeliving program must maintain the following student minimum supervisory requirements on weekdays:

                              Grade level
                              Time of day
                              Ratio

                              Elementary (Grade 1-6)
                              Morning
                              1:20.

                              During school
                              As school needs.

                              Evening
                              1:20.

                              Night
                              1:40.

                              High School (Gr. 7-12)
                              Morning
                              1:20.

                              During school
                              As school needs.

                              Evening
                              1:30.

                              Night
                              1:50.

                          (b) The following staffing ratios apply on weekends:

                              Grade level
                              Time of day
                              Ratio

                              Elementary (Grade 1-6)
                              Morning/day
                              1:20.

                              Evening
                              1:20.

                              Night
                              1:40.

                              High School (Gr. 7-12)
                              Morning/day
                              1:40.

                              Evening
                              1:40.

                              Night
                              1:50.

                          § 36.78
                          What are the staffing requirements for homeliving programs offering less than 5 nights service?

                          For homeliving programs providing less than 5 nights service, the staffing levels from 36.77 apply. To fill this requirement, the program must use only employees who work a minimum of 20 hours per week.

                          § 36.79
                          What are the homeliving behavioral professional staff/student ratio requirements?
                          Behavioral health professional(s) is necessary in homeliving programs to address issues, such as abuse, neglect, trauma, cultural conflict, and lack of school success. Each homeliving program must provide a minimum of one half-time behavioral health professional for every 50 students.
                          (a) The program may fill the staffing requirements of this section by using contract services, other agencies (including the Indian Health Service) or private/nonprofit volunteer service organizations.
                          (b) Off-reservation homeliving programs should consider providing one full-time behavioral health professional for every 50 students.
                          (c) For purposes of this section, a one half-time behavioral health professional is one that works for the homeliving program a minimum of 20 hours per week.
                          (d) For purposes of this section, in instances where the behavioral health services are obtained through other programs, the behavioral health professional must be available at the request of the homeliving program.

                          § 36.80
                          If a school or dormitory has separated boys' and girls' homeliving programs, may the same behavioral professional be used for each program?
                          Yes, a program may use the same behavioral professional for both boys' and girls' programs. However, behavioral health staffing requirements are based on the combined enrollment during the homeliving count period.

                          § 36.81
                          May a homeliving program use support staff or teachers to meet behavioral health staffing requirements?
                          No, a homeliving program must not use support staff or teachers to meet behavioral health staffing requirements. The only exception is if the individual support staff employee or teacher has the appropriate behavioral health license or certification.

                          § 36.82
                          May behavioral health professional(s) provide services during the academic school day?
                          Behavioral health professional(s) must average at least 75 percent of their work hours with students in their dormitories. These work hours must occur outside of the academic school day, except in emergency situations as deemed by the administrative head of the homeliving program or designee. The purpose of this requirement is to maximize contact time with students in their homeliving setting.

                          § 36.83
                          How many hours can a student be taken out of the academic setting to receive behavioral health services?
                          A student may spend no more than 5 hours per week out of the academic setting to receive behavioral health services from the homeliving behavioral health professional(s), except for emergency situations.

                          § 36.84
                          Can a program hire or contract or acquire by other means behavioral health professionals to meet staffing requirements?
                          A program may hire or contract behavioral health professionals to meet staffing requirements or acquire such services by other means such as through a Memorandum of Understanding with other programs.
                          (a) At least one individual must be a licensed or certified school counselor or a social worker who is licensed/certified to practice at the location where the services are provided.
                          (b) For additional staffing, other individuals with appropriate certifications or licenses are acceptable to meet staffing requirements.

                          § 36.85
                          Is a nurse required to be available in the evenings?
                          No, a program is not required to make a nurse (LPN or RN) available in the evenings. However, this is encouraged for homeliving programs with an enrollment greater than 300 or for programs that are more than 50 miles from available services.

                          § 36.86
                          Are there staff training requirements?
                          (a) All homeliving program staff as well as all employees that supervise students participating in homeliving services and activities must have the appropriate certification or licensing requirements up to date and on file. Programs must provide annual and continuous professional training and development appropriate to the certification and licensing requirements.
                          (b) All homeliving program staff as well as all employees who supervise students participating in homeliving services and activities must receive annual training in the topics set out in this section before the first day of student occupancy for the year.
                          (1) First Aid/Safety/Emergency & Crisis Preparedness;
                          (2) CPR—Automated External Defibrillator;
                          (3) Student Checkout Policy;
                          (4) Confidentiality (Health Information Privacy Act and the Family Education Right to Privacy Act.);
                          (5) Medication Administration;
                          (6) Student Rights;
                          (7) Child Abuse Reporting Requirements and Protection Procedures; and
                          (8) Suicide Prevention.
                          (c) Homeliving staff as well as all employees that supervise students participating in homeliving services and activities must be given the following training annually:
                          (1) De-escalation/Conflict Resolution;
                          (2) Substance Abuse Issues;
                          (3) Ethics;
                          (4) Parenting skills/Child Care;
                          (5) Special Education and Working with Students with Disabilities;
                          (6) Student Supervision Skills;
                          (7) Child Development (recognizes various stages of development in the student population);
                          (8) Basic Counseling Skills; and
                          (9) Continuity of Operations Plan (COOP).

                        Program Requirements

                          § 36.90
                          What recreation, academic tutoring, student safety, and health care services must homeliving programs provide?
                          All homeliving programs must provide for appropriate student safety, academic tutoring, recreation, and health care services for their students, as deemed necessary by the local school board or homeliving board.

                          § 36.91
                          What are the program requirements for behavioral health services?
                          (a) The homeliving behavioral health program must make available the following services:
                          (1) Behavioral Health Screening/Assessment;
                          (2) Diagnosis;
                          (3) Treatment Plan;
                          (4) Treatment and Placement;
                          (5) Evaluation; and
                          (6) Record of Services (if applicable, in coordination with the student's Individual Education Plan).
                          (b) Each homeliving behavioral health program must have written procedures for dealing with emergency behavioral health care issues.
                          (c) Parents or guardians may opt out of any non-emergency behavioral health services by submitting a written request.
                          (d) Parents or guardians must be consulted before a child is prescribed behavioral health.
                          (e) Medication in a non-emergency situation.

                          § 36.92
                          Are there any activities that must be offered by a homeliving program?
                          Yes, a homeliving program must make available the following activities:
                          (a) One hour per day of scheduled, structured physical activity Monday through Thursday, and two hours of scheduled physical activities on the weekends for any students who are in residence on the weekends;
                          (b) One hour per day of scheduled, structured study at least four days per week for all students, and additional study time for students who are failing any classes;
                          (c) Tutoring during study time;
                          (d) Native language or cultural activities; and
                          (e) Wellness program that may include character, health, wellness, and sex education.

                          § 36.93
                          Is a homeliving handbook required?
                          Yes, each program must publish a homeliving handbook, which may be incorporated into a general student handbook. During the first week the students and staff are in the dormitory, the homeliving program must:
                          (a) Provide each student with a copy of the handbook that contains all the provisions in 36.94;
                          (b) Provide all staff, students, and parents or guardians with a current and updated copy of student rights and responsibilities;
                          (c) Conduct an orientation for all students on the handbook and student rights and responsibilities; and
                          (d) Ensure that all students, school staff, and to the extent possible, parents and guardians confirm in writing that they have received a copy of and understand the homeliving handbook.

                          § 36.94
                          What must a homeliving handbook contain?
                          A homeliving handbook must contain all of the following, and may include additional information:
                          (a) Mission/Vision Statement;
                          (b) Discipline Policy;
                          (c) Parent/Student Rights and Responsibilities;
                          (d) Confidentiality;
                          (e) Sexual Harassment Policy;
                          (f) Violence/Bullying Policy;
                          (g) Homeliving Policies and Procedures;
                          (h) Services Available;
                          (i) Personnel and Position Listing;
                          (j) Emergency Procedures and Contact Numbers;
                          (k) Bank Procedures;
                          (l) Transportation Policy;
                          (m) Check-Out Procedures;
                          (n) Dress Code;
                          (o) Drug/Alcohol Policy;
                          (p) Computer Usage Policy;
                          (q) Medication Administration Policy and Procedure; and
                          (r) Isolation/Separation Policy.

                          § 36.95
                          What sanitary standards must homeliving programs meet?
                          Each homeliving program must meet all of the following standards:
                          (a) Restrooms, showers, and common areas must be cleaned daily;
                          (b) Rooms must be cleaned daily;
                          (c) Linens must be changed and cleaned weekly;
                          (d) Linens are to be provided;
                          (e) Basic Toiletries must be provided; and
                          (f) Functional washing machines and dryers must be provided.

                          § 36.96
                          May students be required to assist with daily or weekly cleaning?
                          Yes, students can be required to assist with daily or weekly cleaning. However, the ultimate responsibility of cleanliness rests with the homeliving supervisor and local law or rules regarding chemical use must be followed.

                          § 36.97
                          What basic requirements must a program's health services meet?
                          (a) A homeliving program must make available basic medical, dental, vision, and other necessary health services for all students residing in the homeliving program, subject to agreements between the BIE and the Indian Health Service or between a tribally-operated homeliving program and the Indian Health Service or tribal health program.
                          (b) A homeliving program must have written procedures for dealing with emergency health care issues.
                          (c) Parents or guardians may opt out of any non-emergency services by submitting a written request.

                          (d) The homeliving supervisor or designee must act in loco parentis when the parent or guardian cannot be found.

                          § 36.98
                          Must the homeliving program have an isolation room for ill children?
                          Yes, the homeliving program must have an isolation room(s) available for ill students. The isolation room (or rooms, if needed) must be made available for use by students with contagious conditions. Contagious boys and girls should have separate rooms. The isolation room(s) should have a separate access to shower and restroom facilities. Students isolated for contagious illness must be supervised as frequently and as closely as the circumstances and protocols require, but at least every 30 minutes.

                          § 36.99
                          Are immunizations required for residential program students?
                          Each student must have all immunizations required by State, local, or tribal governments before being admitted to a homeliving program. Annual flu shots are not required, but are encouraged.

                          § 36.100
                          Are there minimum requirements for student attendance checks?
                          Yes, there are minimum requirements for student attendance checks as follows:
                          (a) All students must be physically accounted for four times daily;
                          (b) Each count must be at least two hours apart;
                          (c) If students are on an off-campus activity, physical accounts of students must be made at least once every two hours or at other reasonable times depending on the activity;
                          (d) At night all student rooms should be physically checked at least once every hour;
                          (e) If a student is unaccounted for, the homeliving program must follow its established search procedures; and
                          (f) When homeliving staff is aware of a student who is going to be absent from school, the homeliving program is required to notify the school.

                          § 36.101
                          How often must students who have been separated for emergency health or behavioral reasons be supervised?
                          Students who have been separated for emergency behavioral or health reasons must be supervised as frequently and as closely as the circumstances and protocols require. No student will be left unsupervised for any period until such factors as the student's health based on a medical assessment, the safety of the student, and any other applicable guidance for dealing with behavior or health emergencies are considered.

                          § 36.102
                          What student resources must be provided by a homeliving program?
                          The following minimum resources must be available at all homeliving programs:
                          (a) Library resources such as access to books and resource materials, including school libraries and public libraries which are conveniently available;
                          (b) A copy of each textbook used by the academic program or the equivalent for peripheral dorms; and
                          (c) Reasonable access to a computer with Internet access to facilitate homework and study.

                          § 36.103
                          What are the requirements for multipurpose spaces in homeliving programs?
                          Homeliving programs must provide adequate areas for sleeping, study, recreation, and related activities.

                          § 36.104
                          What are the requirements for heating, ventilation, cooling and lighting at dormitories?

                          (a) All dormitories must be designed to meet or exceed the standards for heating, ventilation, cooling, and lighting set out in the building codes in the Bureau of Indian Affairs “School Facilities Design Handbook,” dated March 30, 2007, written and published by the Bureau of Indian Affairs Office of Facilities Management and Construction. The Director of the Federal Register has approved this incorporation by reference in accordance with 5 U.S.C. 552(a). To enforce any edition other than that specified in this section, the Bureau of Indian Affairs must publish notice of change in the Federal Register and the material must be available to the public

                          (1) You may obtain a copy of the Handbook at http://www.bia.gov/cs/groups/xraca/documents/text/idc008030.pdf. You can get answers to your questions from the Bureau of Indian Affairs Office of Facilities Management and Construction at: 1011 Indian School Road NW., Suite 335, Albuquerque, NM 87103; email: OFECT@bia.gov; Web site: http://www.bia.gov/WhoWeAre/AS-IA/OFECR/index.htm.

                          (2) You may inspect the Handbook at the Department of the Interior Library, Main Interior Building, 1849 C Street NW., Room 1151, Washington, DC 20240; telephone: (202) 208-3796. It is also available for inspection at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call (202) 741-6030 or go to http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.

                          (b) If an existing dormitory does not comply with the standards in paragraph (a) of this section, we will classify the discrepancy as “deferred capital maintenance” for purposes of prioritizing correction of the discrepancy.
                          (c) The Bureau must publish in the Federal Register any proposal to change which building codes are included in the Bureau of Indian Affairs “School Facilities Design Handbook” or any successor document, and allow 120 days for public comment and consultation.
                          [77 FR 30891, May 24, 2012]

                        Privacy

                          § 36.110
                          Must programs provide space for storing personal effects?
                          Yes, students are entitled to private personal spaces for storing their own personal effects, including at least one lockable closet, dresser drawer, or storage space. However, all drawers, dressers, storage space, or lockable space are the property of the homeliving program and are subject to random search.

                        Waivers and Accountability

                          § 36.111
                          Can a tribe, tribal governing body, or local school board waive the homeliving standards?
                          A tribal governing body or local school board may waive some or all of the standards established by this part if the body or board determines that the standards are inappropriate for the needs of the tribe's students.
                          (a) If a tribal governing body or school board waives standards under this section, it must, within 60 days, submit proposed alternative standards to the Director, BIE.
                          (b) Within 90 days of receiving a waiver and proposal under paragraph (a) of this section, the Director must either:
                          (1) Approve the submission; or
                          (2) Deliver to the governing body or school board a written explanation of the good cause for rejecting the submission.
                          (c) If the Director rejects a submission under paragraph (c) of this section, the governing body or school board may submit another waiver and proposal for approval. The standards in this part remain in effect until the Director approves alternative standards.

                          § 36.112
                          Can a homeliving program be closed, transferred, consolidated, or substantially curtailed for failure to meet these standards?
                          No, a homeliving program cannot be closed, transferred to any other authority, consolidated, or its programs substantially curtailed for failure to meet these standards.

                          § 36.120
                          What type of reporting is required to ensure accountability?
                          The homeliving program must provide to the appropriate local school board or alternative board such as a homeliving board, the tribal governing body, BIE, and the Secretary of the Interior, an annual accountability report within 45 days following the end of the school year consisting of:
                          (a) Enrollment figures identified by the homeliving count period;
                          (b) A brief description of programs offered;
                          (c) A statement of compliance with the requirements of this part and, if the program is not in compliance, recommendations for achieving compliance; and
                          (d) Recommendations to improve the homeliving program including identification of issues and needs.

                    Pt. 37
                    PART 37—GEOGRAPHIC BOUNDARIES

                      Sec.
                      37.100
                      What is the purpose of this part?
                      37.101
                      What definitions apply to the terms in this part?
                      37.102
                      How is this part organized?
                      37.103
                      Information collection.

                        Subpart A—All Schools
                        37.110
                        Who determines geographic attendance areas?
                        37.111
                        What role does a tribe have in issues relating to school boundaries?
                        37.112
                        Must each school have a geographic attendance boundary?

                        Subpart B—Day Schools, On-Reservation Boarding Schools, and Peripheral Dorms
                        37.120
                        How does this part affect current geographic attendance boundaries?
                        37.121
                        Who establishes geographic attendance boundaries under this part?
                        37.122
                        Once geographic attendance boundaries are established, how can they be changed?
                        37.123
                        How does a Tribe develop proposed geographic attendance boundaries or boundary changes?
                        37.124
                        How are boundaries established for a new school or dorm?
                        37.125
                        Can an eligible student living off a reservation attend a school or dorm?

                        Subpart C—Off-Reservation Boarding Schools
                        37.130
                        Who establishes boundaries for Off-Reservation Boarding Schools?
                        37.131
                        Who may attend an ORBS?

                      Authority:
                      Public Law 107-110, 115 Stat. 1425.

                      Source:
                      70 FR 22204, Apr. 28, 2005, unless otherwise noted.

                      § 37.100
                      What is the purpose of this part?
                      (a) This part:
                      (1) Establishes procedures for confirming, establishing, or revising attendance areas for each Bureau-funded school;
                      (2) Encourages consultation with and coordination between and among all agencies (school boards, tribes, and others) involved with a student's education; and
                      (3) Defines how tribes may develop policies regarding setting or revising geographic attendance boundaries, attendance, and transportation funding for their area of jurisdiction.
                      (b) The goals of the procedures in this part are to:
                      (1) Provide stability for schools;
                      (2) Assist schools to project and to track current and future student enrollment figures for planning their budget, transportation, and facilities construction needs;
                      (3) Adjust for geographic changes in enrollment, changes in school capacities, and improvement of day school opportunities; and
                      (4) Avoid overcrowding or stress on limited resources.

                      § 37.101
                      What definitions apply to the terms in this part?

                        Act means the No Child Left Behind Act, Public Law 107-110, enacted January 8, 2002. The No Child Left Behind Act reauthorizes and amends the Elementary and Secondary Education Act (ESEA) and the amended Education Amendments of 1978.

                        Bureau means the Bureau of Indian Affairs in the Department of the Interior.

                        Geographic attendance area means a physical land area that is served by a Bureau-funded school.

                        Geographic attendance boundary means a line of demarcation that clearly delineates and describes the limits of the physical land area that is served by a Bureau-funded school.

                        Secretary means the Secretary of the Interior or a designated representative.

                      § 37.102
                      How is this part organized?
                      This part is divided into three subparts. Subpart A applies to all Bureau-funded schools. Subpart B applies only to day schools, on-reservation boarding schools, and peripheral dorms—in other words, to all Bureau-funded schools except off-reservation boarding schools. Subpart C applies only to off-reservation boarding schools (ORBS).

                      § 37.103
                      Information collection.

                      Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This part involves collections of information subject to the PRA in §§ 37.122(b), and 37.123(c). These collections have been approved by OMB under control number 1076-0163.

                      Subpart A—All Schools

                        § 37.110
                        Who determines geographic attendance areas?
                        The Tribal governing body or the Secretary determines geographic attendance areas.

                        § 37.111
                        What role does a tribe have in issues relating to school boundaries?
                        A tribal governing body may:
                        (a) Establish and revise geographical attendance boundaries for all but ORB schools;
                        (b) Authorize ISEP-eligible students, residing within the tribe's jurisdiction, to receive transportation funding to attend schools outside the geographic attendance area in which the student lives; and
                        (c) Authorize tribal member students who are ISEP-eligible and are not residing within the tribe's jurisdiction to receive transportation funding to attend schools outside the student's geographic attendance area.

                        § 37.112
                        Must each school have a geographic attendance boundary?
                        Yes. The Secretary must ensure that each school has a geographic attendance area boundary.

                      Subpart B—Day Schools, On-Reservation Boarding Schools, and Peripheral Dorms

                        § 37.120
                        How does this part affect current geographic attendance boundaries?
                        The currently established geographic attendance boundaries of day schools, on-reservation boarding schools, and peripheral dorms remain in place unless the tribal governing body revises them.

                        § 37.121
                        Who establishes geographic attendance boundaries under this part?
                        (a) If there is only one day school, on-reservation boarding school, or peripheral dorm within a reservation's boundaries, the Secretary will establish the reservation boundary as the geographic attendance boundary;
                        (b) When there is more than one day school, on-reservation boarding school, or peripheral dorm within a reservation boundary, the Tribe may choose to establish boundaries for each;
                        (c) If a Tribe does not establish boundaries under paragraph (b) of this section, the Secretary will do so.

                        § 37.122
                        Once geographic attendance boundaries are established, how can they be changed?
                        (a) The Secretary can change the geographic attendance boundaries of a day school, on-reservation boarding school, or peripheral dorm only after:
                        (1) Notifying the Tribe at least 6 months in advance; and
                        (2) Giving the Tribe an opportunity to suggest different geographical attendance boundaries.
                        (b) A tribe may ask the Secretary to change geographical attendance boundaries by writing a letter to the Director of the Office of Indian Education Programs, explaining the tribe's suggested changes. The Secretary must consult with the affected tribes before deciding whether to accept or reject a suggested geographic attendance boundary change.

                        (1) If the Secretary accepts the Tribe's suggested change, the Secretary must publish the change in the Federal Register.

                        (2) If the Secretary rejects the Tribe's suggestion, the Secretary will explain in writing to the Tribe why the suggestion either:
                        (i) Does not meet the needs of Indian students to be served; or
                        (ii) Does not provide adequate stability to all affected programs.

                        § 37.123
                        How does a Tribe develop proposed geographic attendance boundaries or boundary changes?
                        (a) The Tribal governing body establishes a process for developing proposed boundaries or boundary changes. This process may include consultation and coordination with all entities involved in student education.
                        (b) The Tribal governing body may delegate the development of proposed boundaries to the relevant school boards. The boundaries set by the school boards must be approved by the Tribal governing body.
                        (c) The Tribal governing body must send the proposed boundaries and a copy of its approval to the Secretary.

                        § 37.124
                        How are boundaries established for a new school or dorm?
                        Geographic attendance boundaries for a new day school, on-reservation boarding school, or peripheral dorm must be established by either:
                        (a) The tribe; or
                        (b) If the tribe chooses not to establish boundaries, the Secretary.

                        § 37.125
                        Can an eligible student living off a reservation attend a school or dorm?
                        Yes. An eligible student living off a reservation can attend a day school, on-reservation boarding school, or peripheral dorm.

                      Subpart C—Off-Reservation Boarding Schools

                        § 37.130
                        Who establishes boundaries for Off-Reservation Boarding Schools?
                        The Secretary or the Secretary's designee, in consultation with the affected Tribes, establishes the boundaries for off-reservation boarding schools (ORBS).

                        § 37.131
                        Who may attend an ORBS?
                        Any student is eligible to attend an ORBS.

                    Pt. 38
                    PART 38—EDUCATION PERSONNEL

                      Sec.
                      38.1
                      Scope.
                      38.2
                      Information collection.
                      38.3
                      Definitions.
                      38.4
                      Education positions.
                      38.5
                      Qualifications for educators.
                      38.6
                      Basic compensation for educators and education positions.
                      38.7
                      Appointment of educators.
                      38.8
                      Nonrenewal of contract.
                      38.9
                      Discharge of educators.
                      38.10
                      Conditions of employment of educators.
                      38.11
                      Length of the regular school term.
                      38.12
                      Leave system for education personnel.
                      38.13
                      Status quo employees in education positions.
                      38.14
                      Voluntary services.
                      38.15
                      Southwestern Indian Polytechnic Institute.

                      Authority:
                      25 U.S.C. 2011 and 2015, Secs. 1131 and 1135 of the Act of November 1, 1978, 92 Stat. 2322 and 2327; Secs. 511 and 512, Pub. L. 98-511; Secs. 8 and 9, Pub. L. 99-89; Title V of Pub. L. 100-297; Pub. L. 105-337.

                      Source:
                      53 FR 37678, Sept. 27, 1988, unless otherwise noted.

                      § 38.1
                      Scope.
                      (a) Primary scope. This part applies to all individuals appointed or converted to contract education positions as defined in § 38.3 in the Bureau of Indian Affairs after November 1, 1979. This part applies to elementary and secondary school positions and agency education positions.
                      (b) Secondary scope. Section 38.13 applies to employees with continuing tenure in both the competitive and excepted service who encumber education positions.
                      (c) Other. Where 25 CFR part 38 and a negotiated labor relations agreement conflict, the negotiated agreement will govern.

                      § 38.2
                      Information collection.
                      (a) The information collection requirements contained in § 38.5 use Standard Form 171 for collection, and have been approved by OMB under 25 U.S.C. 2011 and 2015 and assigned approval number 3206-0012. The sponsoring agency for the Standard Form 171, is the Office of Personnel Management. The information is being collected to determine eligibility for employment. The information will be used to rate the qualifications of applicants for employment. Response is mandatory for employment.

                      (b) The information collection requirement for § 38.14, Voluntary Services has been approved by the Office of Management and Budget under 44 U.S.C. 3501 et seq. and assigned clearance number 1076-0116. The information is being collected to determine an applicants eligibility and selection for appropriate volunteer assignments. Response is voluntary.

                      § 38.3
                      Definitions.
                      As used in this part, the term:

                        Agency means the current organizational unit of the Bureau, which provides direct services to the governing body or bodies and members of one or more specified Indian Tribes.

                        Agency school board as defined in section 1139(1), of Pub. L. 95-561, means a body, the members of which are appointed by the school boards of the schools located within such Agency. The number of such members shall be determined by the Director in consultation with the affected tribes. In Agencies serving a single school, the school board of that school shall function as the Agency School Board.

                        Agency Superintendent for Education (ASE) means the Bureau official in charge of education functions at an Agency Office and to whom the school supervisor(s) and other educators under the Agency's jurisdiction, report.

                        Area Education Programs Administrator (AEPA) means the Bureau official in charge of an Area Education Office that provides services to off-reservation residential schools, peripheral dormitories or on-reservation BIA funded schools that are not served by an Agency Superintendent for Education. The AEPA may also provide education program services to tribes not having an Agency Superintendent for Education at their agency. The AEPA has no line authority over agency education programs that are under the jurisdiction of an Agency Superintendent for Education.

                        Assistant Secretary means the Assistant Secretary for Indian Affairs of the Department of the Interior.

                        Bureau means the Bureau of Indian Affairs of the Department of the Interior.

                        Consult, as used in this part and provided in section 1131(d)(1) (B) and (C) of Pub. L. 95-561, means providing pertinent information to and being available for discussion with the school board, giving the school board the opportunity to reply and giving due consideration to the school board's response, subject to appeal rights provided in § 38.7 (a), (b) and (c), and § 38.9(e)(3).

                        Director means the Deputy to the Assistant Secretary/Director—Indian Affairs (Indian Education Programs) in the Bureau.

                        Discharge means the separation of an employee during the term of the contract.

                        Education function means the administration and implementation of the Bureau's education programs and activities (including school operations).

                        Education position, means a position in the Bureau the duties and responsibilities of which:
                      (a) Are performed on a school term basis principally in a Bureau elementary and secondary school which involve:
                      (1) Classroom or other instruction or the supervision or direction of classroom or other instruction;
                      (2) Any activity (other than teaching) that requires academic credits in educational theory and practice equal to the academic credits in educational theory and practice required for a bachelor's degree in education from an accredited institution of higher education; or
                      (3) Any activity in or related to the field of education notwithstanding that academic credits in educational theory and practice are not a formal requirement for the conduct of such activity; or
                      (4) Support services at or associated with the site of the school; or
                      (b) Are performed at the Agency level of the Bureau and involve the implementation of education-related Bureau programs. The position of Agency Superintendent for Education is excluded.

                        Educator, as defined in section 1131(n)(2) of Pub. L. 95-561 means an individual whose services are required, or who is employed, in an education position as defined in § 38.3.

                        Employment contract means a signed agreement executed by and between the Bureau and the individual employee hired or converted under this part, that specifies the position title, period of employment, and compensation attached thereto.

                        Involuntary change in position means the release of an employee from his/her position instigated by a change in program or other occurrence beyond the control of the employee.

                        Local school board, as used in this part and defined in section 1139(7) of Pub. L. 95-561, means a body chosen in accordance with the laws of the tribe to be served or, in the absence of such laws, the body elected by the parents of the Indian children attending a Bureau-operated school. In schools serving a substantial number of students from different tribes, the members shall be appointed by the governing bodies of the tribes affected and the number of such members shall be determined by the Director in consultation with the affected tribes.

                        Probationary period means the extension of the appointed process during which a person's character and ability to satisfactorily meet the requirements of the position are reviewed.

                        School board means an Agency school board or a local school board.

                        School supervisor means the Bureau official in charge of a Bureau school who reports to an Agency Superintendent for Education. In the case of an off-reservation residential school(s), and, in some cases, peripheral dormitories and on-reservation day schools, the school supervisor shall report to the Area Education Programs Administrator.

                        School term is that term which begins usually in the last summer or fall and ends in the Spring. It may be interrupted by one or more vacations.

                      § 38.4
                      Education positions.
                      (a) The Director shall establish the kinds of positions required to carry out the Bureau's education function. No position will be established or continued for which:
                      (1) Funds are not available; or
                      (2) There is not a clearly demonstrable need and intent for it to carry out an education function.
                      (b) Positions established for regular school operations will be restricted to school term or program duration. Particular care shall be taken to insure that year-long positions are not established unless they are clearly required and involve essential 12-month assignments.

                      § 38.5
                      Qualifications for educators.
                      (a) Qualifications related to positions. Job qualification requirements shall be at least equivalent to those established by the appropriate licensing and certification authorities of the State in which the position is located.
                      (b) Qualifications related to individuals. An applicant for an education position must establish that he/she meets the requirements of the position by submitting an application and a college transcript, as appropriate, to the local school supervisor, Agency Superintendent for Education (ASE), Area Education Programs Administrator (AEPA), or Director and appearing for an interview if requested by the official involved. The applicant's education and experience will be subject to verification by the ASE or the AEPA. Employees who falsify experience and employment history may be subject to disciplinary action or discharge from the position to which he/she is appointed.
                      (1) School boards may waive formal education and State certification requirements for tribal members who are hired to teach tribal culture and language.
                      (2) Tribal members appointed under this waiver may not have their basic pay rate set higher than the rate paid to qualified educators in teaching positions at that school.
                      (c) Identification of qualified individuals. The Director shall require each ASE, AEPA, and other appropriate local official in the education program organization to maintain lists of qualified and interviewed applicants for each of the kinds of established positions. Applications on file shall be purged annually. Applicants whose qualifications are established and who indicate an interest in working in specified locations will be included on those local applicant lists. The Director shall maintain a national list of qualified applicants for each of the kinds of positions established. Applicants whose qualifications are established and who either do not indicate an interest in a specific location or indicate an interest in working in any location will be entered on the national list. The national list is a secondary source of applicants.
                      (d) Special recruitment and training for Indian educators. The Director shall review annually the Bureau's “Recruitment of Indian Educators Program” and update as necessary. The Director will define individual training plans for trainees and subsequent promotional opportunities for advancement based upon satisfactory job performance in this program.

                      § 38.6
                      Basic compensation for educators and education positions.
                      (a) Schedule of basic compensation rates. The Director shall establish a schedule for each pay level specified in part 62 of the Bureau of Indian Affairs Manual (BIAM). The schedule will be revised at the same time as and be consistent with rates in effect under the General Schedule or Federal Wage System for individuals with comparable qualifications, and holding comparable positions.
                      (b) Range of pay rates for positions within pay levels. The range of basic compensation rates for positions assigned to each pay level will be consistent with the General Schedule or Federal Wage System rates that would otherwise be applicable if the position were classified under chapter 51 or subchapter IV of chapter 53 of title 5 of the United States Code (U.S.C.). The maximum pay shall not exceed step 10 of the comparable General Schedule position by more than ten percent.
                      (c) Schedule of compensation rates for teachers and counselors. The basic compensation for teachers and counselors, including dormitory counselors and homeliving counselors, shall be determined in accordance with rates set by the Defense Department Overseas Teachers Pay and Personnel Practices Act. The schedule used shall be the current published schedule for the school year beginning on or after July 1 of each year.
                      (d) Adjusting employee basic compensation rates. (1) Except for employees occupying positions of teachers and counselors, including dormitory counselors and homeliving counselors, adjustments in an employee's basic compensation made in connection with each contract renewal will be based on the following:
                      (i) Contract renewal incentive—one pay increment for each renewal, not to exceed four increments, unless the educator is covered by a negotiated labor union agreement.
                      (ii) Performance—employees whose performance is rated “above satisfactory”; one pay increment; employees whose performance is rated “outstanding”; two pay increments.
                      (2) Pay increments based on education may be awarded as outlined in 62 BIAM.
                      (e) Special additions to basic compensation. The Director is authorized to established the following special additions to rates of basic compensation:
                      (1) The Director may authorize payment of a staffing differential not exceeding 25 per centum of the rate of basic compensation based on a formally-documented request by an ASE or AEPA. Such a staffing differential shall only be authorized in writing when the Director determines that:
                      (i) It is warranted by the geographic isolation of the work site or other unusually difficult environmental working or living conditions and/or,
                      (ii) It is necessary as a recruitment or retention incentive. This staffing differential is to be computed on the basic schedule rate before any other additions are computed.
                      (2) Special rates may be established for recruitment and retention applicable only to a specific position or to specific types of positions in specific locations based on a formally documented request by an ASE or AEPA and submitted to the Director for approval.
                      (f) Payment of compensation to educators. This section applies to those individuals employed under the provisions of section 1131(m) of Pub. L. 95-561 or title 5 U.S.C.
                      (1) Pay periods. Educators shall be paid on the basis of a biweekly pay period during the term of the contract. Chapter 55 of title 5 U.S.C. applies to the administration of pay for educators, except that section 1131(m) of Pub. L. 95-561 provides that 5 U.S.C. 5533 does not apply with respect to the receipt of pay by educators during summer recess under certain circumstances.
                      (2) Pay for contract educators. When an educator is appointed, payment under the contract is to begin as of the effective date of the contract. If an educator resigns or is discharged before the expiration of the term of the contract, pay ceases as of the date of resignation or discharge.
                      (3) Prorating of pay. Within 30 days prior to the beginning of the academic school term, each educator must elect whether to have the annual contractual rate or basic pay prorated over the contractual academic school term, or to have the basic pay prorated over a 12-month period.
                      (i) Each educator may change such election once during the academic school term, provided notice is given two weeks prior to the end of the fifth month after the beginning of the academic school term.
                      (ii) An educator who elects a 12-month basis of prorated pay may further elect to be paid in one lump sum at the end of the academic school term for the then remaining amount of rate of basic pay otherwise due, provided notice is given four weeks prior to the end of the academic school term.
                      (iii) No educator shall suffer a loss of pay or benefits because of elections made under this section.
                      (4) Stipends for extracurricular activities. An employee, if assigned to sponsor an approved extracurricular activity, may elect annually at the beginning of the contract to be paid a stipend in lieu of overtime premium pay or compensatory time when the employee performs additional activities to provide services to students or otherwise support the school's academic and social programs.
                      (i) The Director is authorized to establish a schedule of stipends for each Bureau Area, taking into consideration types of activities to be compensated and payments provided by public school districts in or near the Area.
                      (ii) The stipend shall be a supplement to the employee's base pay and is not a part of salary for retirement computation purposes.
                      (iii) The employee shall be paid the stipend in equal payments over the period of the extracurricular activity.
                      [53 FR 37678, Sept. 27, 1988, as amended at 54 FR 46374, Nov. 3, 1989]

                      § 38.7
                      Appointment of educators.
                      (a) Local school employees. Local Bureau school employees shall be appointed only by the school supervisor. Before the local school employee is employed, the school board shall be consulted. An individual's appointment may be finalized only upon receipt of a formal written determination certified by the local school board under such uniform procedures as it may adopt. Written determination by the school board should be received within a reasonable period, but not to exceed 30 days. Failure of the school board to act within this period shall have the effect of approving the proposed appointment. The local school board shall use the same written procedure to disapprove an appointment. The school supervisor may appeal to the ASE, or, where appropriate, to the AEPA, any determination by the local school board concerning an individual's appointment. A written statement of appeal describing the action and the reasons the supervisor believes such action should be overturned must be filed within 10 days of receipt of the action from the local school board. A copy of such statement shall be submitted to the school board and the board shall be afforded an opportunity to respond, not to exceed 10 calendar days, in writing, to the appeal. After reviewing such written appeal and response, the ASE or AEPA may, for cause, overturn the action of the local school board. The ASE or AEPA must transmit the determination of the appeal (in the form of a written opinion) to the board and to the supervisor identifying the reasons for overturning the action within 10 calender days. Failure to act within the 10 calendar day period shall have the effect of approving the local school board's determination.
                      (b) School supervisors. School supervisors may be appointed only by the ASE, except the AEPA shall appoint school supervisors for off-reservation boarding schools and those few other schools supervised by the AEPA. The school board shall be consulted before the school supervisor is employed. The appointment may be finalized upon receipt of a formal written determination certified by the school board under any uniform procedures as it may adopt. Written determination by the school board shall be received within a reasonable period, but not to exceed 30 days. Failure of the school board to act within this period shall have the effect of approving the proposed appointment. The school board shall use the same procedure to disapprove an appointment. Within 20 calendar days of receipt of any determination by the school board concerning an individual's appointment, the ASE or AEPA, as appropriate, may appeal to the Director by filing a written statement describing the determination and the reasons the supervisor believes the determination should be overturned. A copy of the statement shall be submitted to the local school board and the board shall be afforded an opportunity to respond, within 10 calendar days, in writing, to such an appeal. The Director may reverse the determination for cause set out in writing to the school board. Within 20 calendar days of the school board's response, the Director shall transmit the determination of the appeal (in the form of a written opinion) to the board and to the ASE or AEPA identifying the reasons for overturning the determination. Failure by the Director to act within the 20 calendar day period shall have the effect of approving the school board's determination.
                      (c) Agency office education program employees. Appointments to Agency office education positions may be made only by the ASE. The Agency school board shall be consulted before the agency education employee is employed, and the appointment may be finalized upon receipt of a formal, written determination certified by the Agency school board under any uniform procedures as it may adopt. Written determination by the school board shall be received within a reasonable period, but not to exceed 30 days. Failure of the school board to act within this period shall have the effect of approving the proposed appointment. The Agency school board shall use the same written procedure to disapprove an appointment. Within 20 calendar days of receipt of any determination by the school board concerning an individual's appointment, the ASE may appeal to the Director by filing a written statement describing the determination and the reasons the supervisor believes the determination should be overturned. A copy of the statement shall be submitted to the Agency school board and the board shall be afforded an opportunity to respond, within 10 calendar days, in writing, to such appeal. After reviewing the written appeal and response, the Director may, for cause, overturn the determination of the Agency school board. Within 20 days of the board's response, the Director shall transmit the determination of the appeal (in the form of a written opinion) to the board and to the ASE identifying the reasons for overturning the determination. Failure of the Director to act within the 20 calendar day period shall have the effect of approving the school's board's determination.
                      (d) Employment contracts. The Bureau shall issue employment contracts each year for individuals employed in contract education positions at the Agency or school levels.
                      (e) Absence of local school boards. Where a local school board has not been established in accordance with section 1139(7) Pub. L. 95-561 with respect to a Bureau school, or where a school board is not operational, and the local school board is required to be given a notice or required to be consulted by statute or these regulations, the official involved shall notify or consult with the Agency school board serving the tribe(s) to which the parents of the Indian children atending that school belong, or, in that absence, the tribal organization(s) of the tribe(s) involved.
                      (f) Provisional contracts. Provisional certification or other limited certificates from the State are not considered full certification and only a provisional contract may be issued. There may be circumstances when no individual who has met the full certification or experience requirements is available for a professional position or when a status quo employee who does not meet full certification or experience requirements desires to convert to contract. When this situation exists, a provisional contract may be issued in accordance with the following:
                      (1) The contract will be made only:
                      (i) After it is determined that an individual already meeting certification or experience requirements is not available; or
                      (ii) For conversion of a status quo employee who does not yet meet all established position requirements.

                      (2) Consultation with the appropriate school board is required prior to the contract.

                      (3) The contract may be of 12-month or school-term duration.
                      (4) The employee will be required to make satisfactory progress toward meeting full qualification requirements.
                      (5) If the employee fails to meet the requirements established under § 38.7(f)(4), the contract will be terminated. Such termination cannot be grieved or appealed.
                      (g) Conditional appointment. As provided in section 1131(d)(4), Pub. L. 95-561, if an individual who has applied at both the national and local levels is appointed from a local list of applicants, the appointment shall be conditional for 90 days. During that period, the individual's application and background shall be examined to determine if there is a more qualified individual for the position. Removal during this period is not subject to discharge, hearing or grievance procedures.
                      (h) Short-term contracts. (1) There may be circumstances where immediate action is necessary and it is impossible to consult with the local school board. When this situation exists short-term contracts may be made by the school supervisor in accordance with the following:
                      (i) The length of the contract will not exceed 60 days, or the next regularly scheduled school board meeting, whichever comes first.
                      (ii) If the board meets and does not take action on the individual in question, the short-term contract may be extended for the duration of the school year.
                      (iii) It shall be the responsibility of the school supervisor to fully inform the local school board of all such short-term contracts. Failure to do so may be cited as reason to discharge the school supervisor if so requested by the board.
                      (2) The local school board may authorize the school supervisor to make an emergency short-term contract to classroom, dormitory and other positions directly related to the health and safety of students. When this situation exists, short-term contracts may be made in accordance with the following:
                      (i) If local and agency lists of qualified applicants are exhausted, short-term contracts may be made without regard to qualifications for the position;
                      (ii) The pay level will be based on the qualifications of the individual employed rather than the requirements of the position, if the qualifications of the individual are lower than required;
                      (iii) The short-term contract may not exceed the school term and may not be renewed or extended;
                      (iv) Every 60 days the school supervisor will determine if qualified individuals have been placed on the local or agency lists. If a qualified individual on the list accepts employment, the school supervisor must terminate the emergency appointment at the time the qualified individual is appointed.
                      (i) Temporary contracts. There may be circumstances where a specific position is needed for a period of one year or less. Under these conditions a position may be advertised as a temporary position and be filled under a temporary contract. Such contract requires the same school board approval as a school year contract. If required for the completion of the activities specified in the original announcement, the position, may with school board approval be extended for up to one additional year. Temporary contracts may be terminated at any time and this action is not subject to approval or grievance procedures.
                      (j) Waiver of Indian preference. Notwithstanding any provision of the Indian preference laws, such laws shall not apply in the case of any personnel action within the purview of this section respecting an application or employee not entitled to Indian preference if each tribal organization concerned grants, in writing, a waiver of the application of such laws with respect to such personnel action, where such a waiver is in writing deemed to be a necessity by the tribal organization, except that this shall in no way relieve the Bureau of its responsibility to issue timely and adequate announcements and advertisements concerning any such personnel action if it is intended to fill a vacancy (no matter how such vacancy is created). When a waiver is granted, it shall apply only to that particular position and as long as the employee remains in that position.

                      (k) Prohibited reappointment. An educator who voluntarily terminates employment before the end of the school term may not be appointed to another Bureau education position before the beginning of the following school term. An educator will not be deemed to have voluntarily terminated employment if transferred elsewhere with the consent of the local school or Agency boards.
                      (l) Contract renewals. The appropriate school board shall be notified in writing by the school supervisor and/or ASE or AEPA not less than 90 days before the end of the school term whether or not an individual's contract is recommended for renewal.
                      (1) If the school board disagrees with the school supervisor's or ASE's or AEPA's recommendations, the board will submit a formal, written certification of its determinations to the school supervisor or ASE or AEPA within 25 days. If the board's determinations are not received within the 25 days, the school supervisor or ASE or AEPA shall issue the 60 day notification of renewal or nonrenawal to the individual as required under § 38.8.
                      (2) When the school board submits its determination within the 25 days and determines that a contract will be renewed, or nonrenewed, the appropriate official shall issue the required renewal notice, or nonrenawal, or appeal the determination of the school board to the appropriate official who will make a determination in accordance with the appeal procedure is § 38.7(a) of this part. After the probationary period, if the determination is that the contract will not be renewed, the procedures specified in § 38.8 shall apply.

                      § 38.8
                      Nonrenewal of contract.
                      Where the determination is made that an employee's contract shall not be renewed for the following year, the following procedure will apply to those employees who have completed three full continuous school terms of service under consecutive contract appointments and satisfactory performance in the same or comparable education positions.
                      (a) The employee will be given a written notice of the action and the reasons thereof not less than 60 days before the end of the school term.
                      (b) The employee will be given 10 calendar days to request an informal hearing before the appropriate official or body. Upon request, the employee may be given official time, not to exceed eight hours, to prepare a written response to the reason(s).
                      (c) If so requested, an informal hearing shall be held within 30 calendar days of receipt of the request.
                      (d) The appropriate official or body will render a written determination within seven calendar days after the informal hearing.
                      (e) The employee has a right to request an administrative review by the ASE or AEPA of the determination within 10 calendar days of that determination. The ASE or AEPA then has 20 calendar days to render a final decision. Where the employee is the supervisor of the school or an agency education employee, any appeal of the ASE or AEPA would be addressed to the Director for a decision. If the Director or ASE's or AEPA's decision overturns the appropriate official or bodies determination, the appropriate official or body will be notified of the reasons in writing. Failure by the Director or ASE or AEPA to act within the 20 days will sustain the determination. This completes the administrative appeal process.
                      (f) Failure of any of the parties to meet the requirements of the above procedures will serve to negate the particular action sought by the negligent party.
                      (g) Those employees with less than three full continuous school terms of consecutive contract appointments are serving a probationary period. Nonrenewal of his/her contract will be considered a continuation of the examining process. This action cannot be appealed or grieved.

                      (h) Independent of the procedures outlined in this section, the school supervisor or ASE or AEPA, for applicable positions, shall be required to submit to the ASE or AEPA or appropriate higher authority all nonrenewal actions. Within 60 days, the ASE or AEPA shall review the nonrenewal actions and may overturn the determination of nonrenewal. In the event that the ASE or AEPA makes a decision to overturn the school board determination, the ASE or AEPA shall notify the school board in writing of his/her reasons for doing so.
                      (i) No more than the substantial standard of evidence shall be required to sustain the nonrenewal.
                      (j) A procedural error shall not be grounds for overturning a determination of nonrenewal unless the employee shows harmful error in the application of the Agency's procedures in arriving at such a decision. For purposes of this section, “harmful error” means error by the Agency in the application of its procedures which, in the absence or cure of the error, might have caused the Agency to reach a conclusion different than the one reached. The burden is upon the appellant to show that based upon the record as a whole, the error was harmful. i.e., caused substantial harm or prejudice to his/her rights.
                      (k) Nonrenewal of a contract is not discharge and will not follow the discharge procedures.

                      § 38.9
                      Discharge of educators.
                      (a) Discharge for cause. Educators covered under the provision of this section are excluded from coverage under 5 U.S.C. 7511 and 4303. In order to provide due process for educators, the Director shall publish in 62 BIAM representative conditions that could result in the discharge of educators for cause and procedures to be followed in discharge cases.
                      (b) Discharge for inadequate performance. Action to remove educators for inadequate performance will be taken for failure to meet performance standards established under 5 U.S.C. 4302. Performance standards for all educators will include, among others, lack of student achievement. Willful failure to exercise properly assigned supervisory responsibilities by supervisors shall also be cause for discharge.
                      (c) Other discharge. The Director shall publish in 62 BIAM a description of the budgetary and programmatic conditions that may result in the discharge of educators for other than cause during the school term. The individual's personnel record will clearly reflect that the action taken is based upon budgetary or programmatic restraints and is not a reflection on the employee's performance.
                      (d) Procedures for discharge for cause. The Director shall publish in 62 BIAM the procedural steps to be followed by school supervisors, ASE's, and AEPA's in discharge for cause cases. These procedures shall provide (among other things) for the following:
                      (1) The educator to be discharged shall receive a written notice of the proposal, specifying the causes or complaints upon which the proposal is based, not less than 30 calendar days before the discharge. However, this shall not prohibit the exclusion of the individual from the education facility in cases where exclusion is required for the safety of the students or the orderly operation of the facility.
                      (2) A reasonable time, but not less than 10 calendar days, will be allotted for the individual to make written and/or oral responses to the charge.
                      (3) An opportunity will be afforded the individual to review the material relied upon to support the charge.
                      (4) Official time, not to exceed eight hours, will be provided to the individual to prepare a response to the charge.
                      (5) The educator may elect to have a representative and shall furnish the identity of any representative to the ASE or AEPA. The ASE or AEPA may disallow, as an employee representative, any individual whose activities as a representative would cause a conflict of interest or position, or an employee whose release from his or her official position would give rise to unreasonable costs to the Government, or when priority work assignment precludes his or her release from official duties. The terms of any applicable collective bargaining agreement and 5 U.S.C. 7114(a)(5) shall govern representation of employees in an exclusive bargaining unit.
                      (6) The individual has a right to a final decision made by the appropriate level of supervision.

                      (7) The individual has a right to appeal the final decision and have the merits of the case reviewed by a Departmental official not previously involved in the case. This right includes entitlement to a hearing upon request under procedures in accordance with the requirements of due process under section 1131(e)(1)(B) of Pub. L. 95-561.
                      (e) School board action. (1) The appropriate school board shall be notified as soon as possible, but in no case later than 10 calendar days from the date of issue of the notice of intent to discharge.
                      (2) The appropriate school board, under any uniform procedure as it may adopt, may issue a formal written certification to the school supervisor, ASE, or AEPA either approving or disapproving the discharge before the expiration of the notice period and before actual discharge. Failure to respond before the expiration of the notice period will have the effect of approving the discharge.
                      (3) The school supervisor initiating a discharge action may appeal the board's determination to the ASE or AEPA within 10 calendar days of receipt of the board's notice. The ASE or AEPA initiating a discharge may appeal the board's determination to the Director within 10 calendar days of receipt of the board's notice. Within 20 calendar days following the receipt of an appeal, the reviewing official may, for good cause, reverse the school board's determination by a notice in writing to the board. Failure to act within 20 calendar days shall have the effect of approving the board's determination.
                      (f) School board recommendations for discharge. School boards may recommend in writing to school supervisors, ASE's, or AEPA's, and the Director that individuals in the education program be discharged. These written recommendations may follow any procedures formally established internally by the school board or tribal government. However, the written recommendations must contain specific causes or complaints that may be verified or established by investigation of factual situations. The official receiving a board recommendation for discharge of an individual shall acknowledge the recommendation in writing within 10 calendar days of receipt and proceed with a fact finding investigation. The official who finally disposes of the recommendation shall notify the school board of the disposition in writing within 60 calendar days of initiation of the fact finding investigation.

                      § 38.10
                      Conditions of employment of educators.
                      (a) Supervision not delegated to school boards. School boards may not direct, control, or interrupt the day-to-day activities of BIA employees carrying out Bureau-operated education programs.
                      (b) Employee handbook. Employee handbook and recruiting guides shall be developed by each local school or agency to provide specific information regarding:
                      (1) The working and hiring conditions for various tribal jurisdictions and Bureau locations;
                      (2) The need for all education personnel to adapt to local situations; and
                      (3) The requirement of all education personnel to comply with and support duly adopted school board policies, including those relating to tribal culture or language.
                      (c) Contract renewal notification. Employees will be notified 60 calendar days before the end of the school term of the intent to renew or not renew their contract. If an individual's contract is to be renewed, the individual must agree in writing to serve for the next school term. This agreement must be received within 14 calendar days of the date of the notice in order to complete the contract renewal. If this agreement is not received by the fourteenth day, the employee has voluntarily forfeited his or her right to continuing employment. If an individual agrees to serve for the next school term and fails to report for duty at the beginning of the next school term, the contract will be terminated and the individual's future appointment will be subject to the restriction in § 38.7(k) of this part.
                      (d) Dual compensation. An employee accepting a renewal of a school term contract may be appointed to another Federal position during the school recess period without regard to the dual compensation regulations in 5 U.S.C. 5533.
                      (e) Discrimination complaints. Equal Employment Opportunity (EEO) procedures established under 29 CFR part 1613 are applicable to contract employees under this part. It is the policy of the BIA that all employees and applicants for employment shall be treated equally when considered for employment or benefits of employment, regardless of race, color, sex, religion, national origin, age, or mental or physical health (handicap), within the parameters of Indian preference.
                      (f) Grievance procedures. The Director shall publish in 62 BIAM procedures for the rapid and equitable resolution of grievances. In locations and for positions covered by an exclusive bargaining agreement, the negotiated grievance procedure is the exclusive avenue of redress for all matters within the scope of the negotiated grievance procedure.
                      (g) Performance evaluation. The minimum number of times a supervisor shall meet with an employee to discuss performance and suggest improvements shall be once every three months for the educator's first year at a school or Agency, and twice annually thereafter during the school term.

                      § 38.11
                      Length of the regular school term.
                      The length of the regular school term shall be at least 180 student instructional days, unless a waiver has been granted under the provisions of 25 CFR 36.61.

                      § 38.12
                      Leave system for education personnel.
                      (a) Full-time school-term employees. Employees on a full-time school-term contract are authorized the following types of leave:
                      (1) Personal leave. A school-term employee will receive 28 hours of personal leave to be used for personal reasons and 12 hours of emergency leave. This leave only accrues provided the length of the contract exceeds 24 weeks.
                      (i) The school-term employee will request the use of this leave in advance when it is for personal use or personal business (e.g., going to the bank, etc.). When this leave is requested for emergency purposes (e.g., death in immediate family), it will be requested immediately after the emergency is known, if possible, by the employee and before leave is taken or as soon as the supervisor reports to work on the official work day.
                      (ii) Final approval rests with the supervisor. This leave shall be taken only during the school term. No compensation for or carryover of unused leave is authorized.
                      (2) Sick leave. Sick leave is an absence approved by the supervisor for incapacity from duty due to injury or illness, not related to or incurred on-the-job and not covered by the Federal Employee's Compensation Act Regulations. Medical and dental appointments may be included under this part. However, whenever possible, medical and dental appointments should be scheduled after instructional time.
                      (i) Sick leave shall accrue at the rate of four hours each biweekly pay period in pay status during the term of the contract; and no precredit or advance of sick leave is authorized.
                      (ii) Accumulated sick leave at the time of separation will be recredited to an educator who is reemployed within three years of separation.
                      (3) School vacation. School term employees may receive up to 136 hours of school vacation time for use when school is not in session. School vacations are scheduled on the annual school calendar during the instructional year and may not be scheduled before the first day of student instruction or after the last day of student instruction. School vacations are not a right of the employee and cannot be paid for or carried over if the employee is required to work during the school vacation time or if the program will not permit school term employees to take such vacation time.
                      (b) Leave for full-time, year-long employees. Employees who are on a full-time, year-long contract are authorized the following types of leave:
                      (1) Vacation leave. Absence approved in advance by the supervisor for rest and relaxation or other personal reasons is authorized on a per year basis of Federal Government service as follows: years 1 and 2 of employment—120 hours; years 3-5 of employment—160 hours; 6 or more years—200 hours. The supervisor will determine when vacation leave may be used. Vacation leave is to be scheduled and used to the greatest extent possible during periods when school is not in session and the students are not in the dormitories. Vacation leave is credited to an employee on the day following his or her date of employment, provided the length of the contract exceeds 24 weeks. An employee may carry into succeeding years up to 200 hours of vacation leave. Leave unused at the time of separation is forfeited.
                      (2) Sick leave. Sick leave accumulation and use is authorized on the same basis as for school term employees under § 38.12(a)(2) of this part.
                      (c) Leave for part-time year-long employees. Employees who are on part-time year-long contracts exceeding 20 hours per week are authorized the following types of leave:
                      (1) Vacation leave. Absence approved in advance by the supervisor for rest and relaxation or other personal reasons is authorized on a per year basis of Federal Government service as follows: years 1 and 2 of employment—64 hours; years 3-5 of employment—80 hours; 6 or more years—104 hours. The supervisor shall determine when vacation leave may be used. Vacation leave is to be scheduled and used to the greatest extent possible during periods when school is not in session and the students are not in the dormitories. Vacation leave is credited to an employee on the day following his or her date of employment provided the length of the contract exceeds 24 weeks and may not be accumulated in excess of 104 hours from year to year. An employee may carry over up to 104 hours from one contract year to the next. Leave unused at the time of separation is forfeited.
                      (2) Sick leave. Sick leave is accumulated on the basis of three hours each biweekly pay period in pay status; no precredit or advance of sick leave is authorized. Accumulated sick leave at the time of separation will be recredited to an educator who is reemployed within three years of separation.
                      (d) Leave for school term employees on a part-time work schedule in excess of 20 hours per week. (1) Employees on a part-time work schedule in excess of 20 hours per week may receive a maximum of 102 hours of school vacation time; 20 hours of personal/emergency leave; and 63 hours of sick leave accrued at three hours per pay period for the first 21 pay periods of their contracts. Personal/emergency leave only accrues provided the length of the contract exceeds 24 weeks.
                      (2) The part-time employee will request the use of this leave in writing in advance when it is for personal use or personal business (e.g., going to the bank, etc.). When this leave is requested for emergency purposes (e.g., death in immediate family), it will be requested immediately after the emergency is known, if possible, by the employee and before leave is taken or as soon as the supervisor reports to work on the official work day.
                      (3) Final approval rests with the supervisor. This leave shall be taken only during the school year. No compensation for or carryover of unused leave is authorized.
                      (4) Sick leave. Sick leave is an absence approved by the supervisor for incapacity from duty due to injury or illness, not related to or incurred on-the-job and not covered by the Federal Employee's Compensation Act Regulations. Medical and dental appointments may be included under this part. However, whenever possible, medical and dental appointments should be scheduled after instructional time.
                      (i) Sick leave shall accrue at the rate of three hours each biweekly pay period in pay status for the first 21 pay periods of their contract; no precredit or advance for sick leave is authorized.
                      (ii) Accumulated sick leave at the time of separation will be recredited to an educator who is reemployed within three years of separation.
                      (5) School vacation time. Part-time employees may receive up to 102 hours of school vacation time for use when school is not in session. Approval for the use of this time will be administratively determined by the school supervisor, ASE or AEPA, and this time may not be scheduled before the start of school or after the end of school.
                      (i) All school vacation time for part-time employees will be approved at the convenience of the program and not as a right of the employee.

                      (ii) Vacation time cannot be paid for or carried over for a part-time employee if the employee is required to work during the school vacation time or if the program will not permit part-time employees to take such vacation time.
                      (e) Accountable absences for all contract employees. The following are considered accountable absences:
                      (1) Approved absence. If prescheduled and approved by the school supervisor, ASE or AEPA, as appropriate, an employee may be on leave without pay.
                      (2) Absence without leave. Any absence is not prescheduled or approved in advance or excused by the supervisor is considered absence without leave.
                      (3) Court and military leave. Employees are entitled to paid absence for jury or witness service and military duty as a member of the National Guard or Reserve under the same terms or conditions as outlined in sections 6322 and 6323 of title 5 U.S.C., and corresponding provisions of the Federal Personnel Manual, when the absence occurs during the regular contract period. Employees may be requested to schedule their military leave at times other than when school is in session.
                      (4) Administrative leave. Administrative leave is an excused absence from duty administratively authorized without loss of pay or without charge to leave. This leave is not a substitute for other paid or unpaid leave categories. Administrative leave usually is authorized on an individual basis except when a school is closed or a group of employees are excused from work for a particular purpose. The school supervisor, ASE or AEPA will grant administrative leave. A school closing must be approved by the ASE or AEPA.
                      (f) Educators serving with contracts with work weeks of 20 hours a week or less are not eligible for any type of paid leave.
                      (g) For school term educators, no paid leave is earned nor may accumulated leave be used during any period of employment with the Bureau between school terms.
                      (h) Employees issued contracts for intermittent work are not eligible for any type of paid leave.
                      (i) Leave transferred in. Annual leave credited to an employee's accrued leave balance immediately before conversion to a contract education position or appointment under this part will be carried over and made available to the employee. Sick leave credited to an employee's accrued sick leave balance immediately before conversion to a contract education position or appointment under this part shall be credited to the employee's sick leave account under the system in § 38.12(a)(2) and (b)(2).

                      § 38.13
                      Status quo employees in education positions.
                      (a) Status quo employees. Individuals who were Bureau employees on October 31, 1979, with an appointment in either the competitive or excepted service without time limitation, and who are serving in an education position, shall be continued in their positions under the terms and conditions of that appointment with no change in their status or positions. Such employees are entitled to receive any changes in compensation attached to the position. Although such employees occupy “education positions” as defined in this part, the terms and conditions of their appointment, status, and entitlements are determined by competitive service regulations and procedures. Under applicable procedures, these employees are eligible for consideration for movement to other positions that are defined as “contract education” positions. Such movement shall change the terms and conditions of their appointment to the terms and conditions of employment established under this part.
                      (b) If the tribe or school board waives the Indian preference law, the employee loses the early-out retirement eligibility under Pub. L. 96-135, “early-out for non-Indians,” if they are entitled to the early-out retirement. A memorandum for the record on BIA letterhead shall be signed by the employee and placed on the permanent side of his/her Official Personnel Folder, along with the tribal resolution, if the tribe/school board has waived the Indian preference law to employ the non-Indian.”
                      (c) Conversion of status quo employees to contract positions. Status quo employees may request in writing to the school supervisor, ASE or AEPA, as applicable, that their position be converted to contract. The appropriate school board will be consulted and a determination made by such school board whether such individual should be converted to a contract employee.
                      (1) Written determination by the school board should be received within a reasonable period, but not to exceed 30 days from receipt of the request. Failure of the school board to act within this period shall have the effect of disapproving the proposed conversion.
                      (2) With school board approval, an involuntary change in position shall not affect the current status of status quo education employees.

                      § 38.14
                      Voluntary services.
                      (a) Scope. An ASE or AEPA may, subject to the approval of the local school board concerned, accept voluntary services on behalf of Bureau schools from the private sector, including individuals, groups, or students. Voluntary service shall be for all non-hazardous activities where public services, special projects, or school operations are improved and enhanced. Volunteer service is limited to personal services received without compensation (salary or wages) by the Bureau from individuals, groups, and students. Nothing in this section shall be construed to require Federal employees to work without compensation or to allow the use of volunteer services to displace or replace Federal employees.
                      (b) Volunteer service agreement. An agreement is a written document, jointly completed by the volunteer, the Bureau school supervisor, and the school board, that outlines the responsibilities of each. In the case of students receiving credit for their work (i.e., student teaching) from an education institution, the agreement will be jointly completed by the student, a representative of the institution, and the Bureau school supervisor. In the case of volunteer groups, the agreement shall be signed by an official of the volunteering organization, the Bureau school supervisor, and the school board and a list of signatures and emergency telephone numbers of all participants shall be attached.
                      (c) Eligibility. Although no minimum age requirement exists for volunteers, schools shall comply with appropriate Federal and State laws and standards on using the services of minors. All volunteers under the age of 18 must obtain written permission from their parents or guardians to perform volunteer activities.
                      (d) Status. Volunteers participating under this part are not considered Federal employees for any purpose other than:
                      (1) Title 5 U.S.C. chapter 81, dealing with compensation for injuries sustained during the performance of work assignments.
                      (2) Federal tort claims provisions published in 28 U.S.C. chapter 171.
                      (3) Department of the Interior Regulations Governing Responsibilities and Conduct.
                      (e) Travel and other expenses. The decision to reimburse travel and other incidental expenses, as well as the amount of reimbursement, shall be made by the school supervisor, ASE, AEPA, and the respective school board. Payment is made in the same manner as for regular employees. Payment of travel and per diem expenses to a volunteer on a particular assignment must be supported by a specific travel authorization and cannot exceed the cost of employing a temporary employee of comparable qualification at the school for which a travel authorization is considered.
                      (f) Annual report. School supervisors shall submit reports on volunteers to the ASE or AEPA by October 31 of each year for the preceding year.

                      § 38.15
                      Southwestern Indian Polytechnic Institute.
                      (a) The Southwestern Indian Polytechnic Institute has an independent personnel system established under Public Law 105-337, the Administrative Systems Act of 1998, 112 Stat. 3171. The details of this system are in the Indian Affairs Manual (IAM) at Part 20. This manual system may be found in Bureau of Indian Affairs Regional and Agency Offices, Education Line Offices, and the Central Office in Washington, DC.

                      (b) The personnel system is in the excepted service and addresses the areas of classification, staffing, pay, performance, discipline, and separation. Other areas of personnel such as leave, retirement, life insurance, health benefits, thrift savings, etc., remain under the jurisdiction of the Office of Personnel Management.
                      [65 FR 58183, Sept. 27, 2000]

                    Pt. 39
                    PART 39—THE INDIAN SCHOOL EQUALIZATION PROGRAM

                        Subpart A—General
                        Sec.
                        39.1
                        What is the purpose of this part?
                        39.2
                        What definitions apply to terms in this part?
                        39.3
                        Information collection.

                        Subpart B—Indian School Equalization Formula
                        39.100
                        What is the Indian School Equalization Formula?
                        39.101
                        Does ISEF assess the actual cost of school operations?

                          Base and Supplemental Funding
                          39.102
                          What is academic base funding?
                          39.103
                          What are the factors used to determine base funding?
                          39.104
                          How must a school's base funding provide for students with disabilities?
                          39.105
                          Are additional funds available for special education?
                          39.106
                          Who is eligible for special education funding?
                          39.107
                          Are schools allotted supplemental funds for special student and/or school costs?

                          Gifted and Talented Programs
                          39.110
                          Can ISEF funds be distributed for the use of gifted and talented students?
                          39.111
                          What does the term gifted and talented mean?
                          39.112
                          What is the limit on the number of students who are gifted and talented?
                          39.113
                          What are the special accountability requirements for the gifted and talented program?
                          39.114
                          What characteristics may qualify a student as gifted and talented for purposes of supplemental funding?
                          39.115
                          How are eligible gifted and talented students identified and nominated?
                          39.116
                          How does a school determine who receives gifted and talented services?
                          39.117
                          How does a school provide gifted and talented services for a student?
                          39.118
                          How does a student receive gifted and talented services in subsequent years?
                          39.119
                          When must a student leave a gifted and talented program?
                          39.120
                          How are gifted and talented services provided?
                          39.121
                          What is the WSU for gifted and talented students?

                          Language Development Programs
                          39.130
                          Can ISEF funds be used for Language Development Programs?
                          39.131
                          What is a Language Development Program?
                          39.132
                          Can a school integrate Language Development Programs into its regular instructional program?
                          39.133
                          Who decides how Language Development funds can be used?
                          39.134
                          How does a school identify a Limited English Proficient student?
                          39.135
                          What services must be provided to an LEP student?
                          39.136
                          What is the WSU for Language Development programs?
                          39.137
                          May schools operate a language development program without a specific appropriation from Congress?

                          Small School Adjustment
                          39.140
                          How does a school qualify for a Small School Adjustment?
                          39.141
                          What is the amount of the Small School Adjustment?
                          39.143
                          What is a small high school?
                          39.144
                          What is the small high school adjustment?
                          39.145
                          Can a school receive both a small school adjustment and a small high school adjustment?
                          39.146
                          Is there an adjustment for small residential programs?

                          Geographic Isolation Adjustment
                          39.160
                          Does ISEF provide supplemental funding for extraordinary costs related to a school's geographic isolation?

                        Subpart C—Administrative Procedures, Student Counts, and Verifications
                        39.200
                        What is the purpose of the Indian School Equalization Formula?
                        39.201
                        Does ISEF reflect the actual cost of school operations?
                        39.202
                        What are the definitions of terms used in this subpart?
                        39.203
                        When does OIEP calculate a school's allotment?
                        39.204
                        How does OIEP calculate ADM?
                        39.205
                        How does OIEP calculate a school's total WSUs for the school year?
                        39.206
                        How does OIEP calculate the value of one WSU?
                        39.207
                        How does OIEP determine a school's funding for the school year?
                        39.208
                        How are ISEP funds distributed?
                        39.209
                        When may a school count a student for membership purposes?
                        39.210
                        When must a school drop a student from its membership?
                        39.211
                        What other categories of students can a school count for membership purposes?
                        39.212

                        Can a student be counted as enrolled in more than one school?

                        39.213
                        Will the Bureau fund children being home schooled?
                        39.214
                        What is the minimum number of instructional hours required in order to be considered a full-time educational program?
                        39.215
                        Can a school receive funding for any part-time students?

                          Residential Programs
                          39.216
                          How does ISEF fund residential programs?
                          39.217
                          How are students counted for the purpose of funding residential services?
                          39.218
                          Are there different formulas for different levels of residential services?
                          39.219
                          What happens if a residential program does not maintain residency levels required by this subpart?
                          39.220
                          What reports must residential programs submit to comply with this rule?
                          39.221
                          What is a full school month?

                          Phase-in Period
                          39.230
                          How will the provisions of this subpart be phased in?

                        Subpart D—Accountability
                        39.401
                        What is the purpose of this subpart?
                        39.402
                        What definitions apply to terms used in this subpart?
                        39.403
                        What certification is required?
                        39.404
                        What is the certification and verification process?
                        39.405
                        How will verifications be conducted?
                        39.406
                        What documentation must the school maintain for additional services it provides?
                        39.407
                        How long must a school maintain records?
                        39.408
                        What are the responsibilities of administrative officials?
                        39.409
                        How does the OIEP Director ensure accountability?
                        39.410
                        What qualifications must an audit firm meet to be considered for auditing ISEP administration?
                        39.411
                        How will the auditor report its findings?
                        39.412
                        What sanctions apply for failure to comply with this subpart?
                        39.413
                        Can a school appeal the verification of the count?

                        Subpart E—Contingency Fund
                        39.500
                        What emergency and contingency funds are available?
                        39.501
                        What is an emergency or unforeseen contingency?
                        39.502
                        How does a school apply for contingency funds?
                        39.503
                        How can a school use contingency funds?
                        39.504
                        May schools carry over contingency funds to a subsequent fiscal year?
                        39.505
                        What are the reporting requirements for the use of the contingency fund?

                        Subpart F—School Board Training Expenses
                        39.600
                        Are Bureau-operated school board expenses funded by ISEP limited?
                        39.601
                        Is school board training for Bureau-operated schools considered a school board expense subject to the limitation?
                        39.603
                        Is school board training required for all Bureau-funded schools?
                        39.604
                        Is there a separate weight for school board training at Bureau-operated schools?

                        Subpart G—Student Transportation
                        39.700
                        What is the purpose of this subpart?
                        39.701
                        What definitions apply to terms used in this subpart?

                          Eligibility for Funds
                          39.702
                          Can a school receive funds to transport residential students using commercial transportation?
                          39.703
                          What ground transportation costs are covered for students traveling by commercial transportation?
                          39.704
                          Are schools eligible to receive chaperone expenses to transport residential students?
                          39.705
                          Are schools eligible for transportation funds to transport special education students?
                          39.706
                          Are peripheral dormitories eligible for day transportation funds?
                          39.707
                          Which student transportation expenses are currently not eligible for Student Transportation Funding?
                          39.708
                          Are miles generated by non-ISEP eligible students eligible for transportation funding?

                          Calculating Transportation Miles
                          39.710
                          How does a school calculate annual bus transportation miles for day students?
                          39.711
                          How does a school calculate annual bus transportation miles for residential students?

                          Reporting Requirements
                          39.720
                          Why are there different reporting requirements for transportation data?
                          39.721
                          What transportation information must off-reservation boarding schools report?
                          39.722
                          What transportation information must day schools, on-reservation boarding schools and peripheral dormitory schools report?

                          Miscellaneous Provisions
                          39.730

                          Which standards must student transportation vehicles meet?

                          39.731
                          Can transportation time be used as instruction time for day school students?
                          39.732
                          How does OIEP allocate transportation funds to schools?

                        Subpart H—Determining the Amount Necessary To Sustain an Academic or Residential Program
                        39.801
                        What is the formula to determine the amount necessary to sustain a school's academic or residential program?
                        39.802
                        What is the student unit value in the formula?
                        39.803
                        What is a weighted student unit in the formula?
                        39.804
                        How is the SUIV calculated?
                        39.805
                        What was the student unit for instruction value (SUIV) for the school year 1999-2000?
                        39.806
                        How is the SURV calculated?
                        39.807
                        How will the Student Unit Value be adjusted annually?
                        39.808
                        What definitions apply to this subpart?
                        39.809
                        Information collection.

                        Subpart I—Interim Maintenance and Minor Repair Fund
                        39.900
                        Establishment and funding of an Interim Maintenance and Minor Repair Fund.
                        39.901
                        Conditions for distribution.
                        39.902
                        Allocation.
                        39.903
                        Use of funds.
                        39.904
                        Limitations.

                        Subpart J—Administrative Cost Formula
                        39.1000
                        Purpose and scope.
                        39.1001
                        Definitions.
                        39.1002
                        Allotment of education administrative funds.
                        39.1003
                        Allotment exception for FY 1991.

                        Subpart K—Pre-kindergarten Programs
                        39.1100
                        Interim fiscal year 1980 and fiscal year 1981 funding for pre-kindergarten programs previously funded by the Bureau.
                        39.1101
                        Addition of pre-kindergarten as a weight factor to the Indian School Equalization Formula in fiscal year 1982.

                        Subpart L—Contract School Operation and Maintenance Fund
                        39.1200
                        Definitions.
                        39.1201
                        Establishment of an interim fiscal year 1980 operation and maintenance fund for contract schools.
                        39.1202
                        Distribution of funds.
                        39.1203
                        Future consideration of contract school operation and maintenance funding.

                      Authority:
                      25 U.S.C. 13, 2008; Public Law 107-110, 115 Stat. 1425.

                      Source:
                      44 FR 61864, Oct. 26, 1979, unless otherwise noted. Redesignated at 47 FR 13327, Mar. 30, 1982.

                      Subpart A—General

                        Source:
                        70 FR 22205, Apr. 28, 2005, unless otherwise noted.

                        § 39.1
                        What is the purpose of this part?
                        This part provides for the uniform direct funding of Bureau-operated and tribally operated day schools, boarding schools, and dormitories. This part applies to all schools, dormitories, and administrative units that are funded through the Indian School Equalization Program of the Bureau of Indian Affairs.

                        § 39.2
                        What definitions apply to terms in this part?

                          Act means the No Child Left Behind Act, Public Law 107-110, enacted January 8, 2002. The No Child Left Behind Act reauthorizes and amends the Elementary and Secondary Education Act (ESEA) and the amended Education Amendments of 1978.

                          Agency means an organizational unit of the Bureau which provides direct services to the governing body or bodies and members of one or more specified Indian Tribes. The term includes Bureau Area Offices only with respect to off-reservation boarding schools administered directly by such Offices.

                          Agency school board means a body, the members of which are appointed by the school boards of the schools located within such agency, and the number of such members shall be determined by the Director in consultation with the affected tribes, except that, in agencies serving a single school, the school board of such school shall fulfill these duties.

                          Assistant Secretary means the Assistant Secretary of Indian Affairs, Department of the Interior, or his or her designee.

                          At no cost means provided without charge, but does not preclude incidental fees normally charged to non-disabled students or their parents as a part of the regular education program.

                          Average Daily Membership (ADM) means the aggregated ISEP-eligible membership of a school for a school year, divided by the number of school days in the school's submitted calendar.

                          Basic program means the instructional program provided to all students at any age level exclusive of any supplemental programs that are not provided to all students in day or boarding schools.

                          Basic transportation miles means the daily average of all bus miles logged for round trip home-to-school transportation of day students.

                          Bureau means the Bureau of Indian Affairs in the Department of the Interior.

                          Bureau-funded school means
                        (1) Bureau school;
                        (2) A contract or grant school; or
                        (3) A school for which assistance is provided under the Tribally Controlled Schools Act of 1988.

                          Bureau school means a Bureau-operated elementary or secondary day or boarding school or a Bureau-operated dormitory for students attending a school other than a Bureau school.

                          Count Week means the last full week in September during which schools count their student enrollment for ISEP purposes.

                          Director means the Director of the Office of Indian Education Programs in the Bureau of Indian Affairs or a designee.

                          Education Line Officer means the Bureau official in charge of Bureau education programs and functions in an Agency who reports to the Director.

                          Eligible Indian student means a student who:
                        (1) Is a member of, or is at least one-fourth degree Indian blood descendant of a member of, a tribe that is eligible for the special programs and services provided by the United States through the Bureau of Indian Affairs to Indians because of their status as Indians;
                        (2) Resides on or near a reservation or meets the criteria for attendance at a Bureau off-reservation home-living school; and
                        (3) Is enrolled in a Bureau-funded school.

                          Home schooled means a student who is not enrolled in a school and is receiving educational services at home at the parent's or guardian's initiative.

                          Homebound means a student who is educated outside the classroom.

                          Individual supplemental services means non-base academic services provided to eligible students. Individual supplemental services that are funded by additional WSUs are gifted and talented or language development services.

                          ISEP means the Indian School Equalization Program.

                          Limited English Proficient (LEP) means a child from a language background other than English who needs language assistance in his/her own language or in English in the schools. This child has sufficient difficulty speaking, writing, or understanding English to deny him/her the opportunity to learn successfully in English-only classrooms and meets one or more of the following conditions:
                        (1) The child was born outside of the United States or the child's Native language is not English;
                        (2) The child comes from an environment where a language other than English is dominant; or
                        (3) The child is an American Indian or Alaska Native and comes from an environment where a language other than English has had a significant impact on the child's level of English language proficiency.

                          Local School Board means a body chosen in accordance with the laws of the tribe to be served or, in the absence of such laws, elected by the parents of the Indian children attending the school. For a school serving a substantial number of students from different tribes:
                        (1) The members of the local school board shall be appointed by the tribal governing bodies affected; and
                        (2) The Secretary shall determine number of members in consultation with the affected tribes.

                          OIEP means the Office of Indian Education Programs in the Bureau of Indian Affairs.

                          Physical education means the development of physical and motor fitness, fundamental motor skills and patterns, and skills in aquatics, dance, and individual and group games and sports (including intramural and lifetime sports). The term includes special physical education, adapted physical education, movement education, and motor development.

                          Resident means a student who is residing at a boarding school or dormitory during the weeks when student membership counts are conducted and is either:
                        (1) A member of the instructional program in the same boarding school in which the student is counted as a resident; or
                        (2) Enrolled in and a current member of a public school or another Bureau-funded school.

                          Residential program means a program that provides room and board in a boarding school or dormitory to residents who are either:
                        (1) Enrolled in and are current members of a public school or Bureau-funded school; or
                        (2) Members of the instructional program in the same boarding school in which they are counted as residents and:
                        (i) Are officially enrolled in the residential program of a Bureau-operated or -funded school; and
                        (ii) Are actually receiving supplemental services provided to all students who are provided room and board in a boarding school or a dormitory.

                          Secretary means the Secretary of the Interior or a designated representative.

                          School means a school funded by the Bureau of Indian Affairs. The term “school” does not include public, charter, or private schools.

                          School bus means a passenger vehicle that is:
                        (1) Used to transport day students to and/or from home and the school; and
                        (2) Operated by an operator in the employ of, or under contract to, a Bureau-funded school, who is qualified to operate such a vehicle under Tribal, State or Federal regulations governing the transportation of students.

                          School day means a day as defined by the submitted school calendar, as long as annual instructional hours are as they are reflected in § 39.213, excluding passing time, lunch, recess, and breaks.

                          Special education means:
                        (1) Specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability, including:
                        (i) Instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and
                        (ii) Instruction in physical education.
                        (2) The term includes each of the following, if it meets the requirements of paragraph (1) of this definition:
                        (i) Speech-language pathology services, or any other related service, if the service is considered special education rather than a related service under State standards;
                        (1) Travel training; and
                        (2) Vocational education.

                          Specially designed instruction means adapting, as appropriate, to the needs of an eligible child under this part, the content, methodology, or delivery or instruction:
                        (1) To address the unique needs of the child that result from the child's disability; and
                        (2) To ensure access of the child to the general curriculum, so that he or she can meet the educational standards within the jurisdiction of the public agency that apply to all children

                          Three-year average means:
                        (1) For academic programs, the average daily membership of the 3 years before the current year of operation; and
                        (2) For the residential programs, the count period membership of the 3 years before the current year of operation.

                          Travel training means providing instruction, as appropriate, to children with significant cognitive disabilities, and any other children with disabilities who require this instruction, to enable them to:
                        (1) Develop an awareness of the environment in which they live; and

                        (2) Learn the skills necessary to move efficiently and safely from place to place within that environment (e.g., in school, in the home, at work, and in the community).

                          Tribally operated school means an elementary school, secondary school, or dormitory that receives financial assistance for its operation under a contract, grant, or agreement with the Bureau under section 102, 103(a), or 208 of 25 U.S.C. 450 et seq., or under the Tribally Controlled Schools Act of 1988.

                          Vocational education means organized educational programs that are directly related to the preparation of individuals for paid or unpaid employment, or for additional preparation for a career requiring other than a baccalaureate or advanced degree.

                          Unimproved roads means unengineered earth roads that do not have adequate gravel or other aggregate surface materials applied and do not have drainage ditches or shoulders.

                          Weighted Student Unit means:
                        (1) The measure of student membership adjusted by the weights or ratios used as factors in the Indian School Equalization Formula; and
                        (2) The factor used to adjust the weighted student count at any school as the result of other adjustments made under this part.

                        § 39.3
                        Information collection.

                        Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This part contains in §§ 39.410 and 39.502 collections of information subject to the PRA. These collections have been approved by OMB under control number 1076-0163.

                      Subpart B—Indian School Equalization Formula

                        Source:
                        70 FR 22205, Apr. 28, 2005, unless otherwise noted.

                        § 39.100
                        What is the Indian School Equalization Formula?
                        The Indian School Equalization Formula (ISEF) was established to allocate Indian School Equalization Program (ISEP) funds. OIEP applies ISEF to determine funding allocation for Bureau-funded schools as described in §§ 39.204 through 39.206.

                        § 39.101
                        Does ISEF assess the actual cost of school operations?
                        No. ISEF does not attempt to assess the actual cost of school operations either at the local level or in the aggregate at the national level. ISEF provides a method of distribution of funds appropriated by Congress for all schools.

                        Base and Supplemental Funding

                          § 39.102
                          What is academic base funding?
                          Academic base funding is the ADM times the weighted student unit.

                          § 39.103
                          What are the factors used to determine base funding?
                          To determine base funding, schools must use the factors shown in the following table. The school must apply the appropriate factor to each student for funding purposes.

                              Grade level
                              Baseacademic
                                funding factor

                              Baseresidential
                                funding factor

                              Kindergarten
                              1.15
                              NA

                              Grades 1-3
                              1.38
                              1.75

                              Grades 4-6
                              1.15
                              1.6

                              Grades 7-8
                              1.38
                              1.6

                              Grades 9-12
                              1.5
                              1.6

                          § 39.104
                          How must a school's base funding provide for students with disabilities?
                          (a) Each school must provide for students with disabilities by:
                          (1) Reserving 15 percent of academic base funding to support special education programs; and
                          (2) Providing resources through residential base funding to meet the needs of students with disabilities under the National Criteria for Home-Living Situations.
                          (b) A school may spend all or part of the 15 percent academic base funding reserved under paragraph (a)(1) of this section on school-wide programs to benefit all students (including those without disabilities) only if the school can document that it has met all needs of students with disabilities with such funds, and after having done so, there are unspent funds remaining from such funds.

                          § 39.105
                          Are additional funds available for special education?

                          (a) Schools may supplement the 15 percent base academic funding reserved under § 39.104 for special education with funds available under part B of the Individuals with Disabilities Education Act (IDEA). To obtain part B funds, the school must submit an application to OIEP. IDEA funds are available only if the school demonstrates that funds reserved under § 39.104(a) are inadequate to pay for services needed by all eligible ISEP students with disabilities.
                          (b) The Bureau will facilitate the delivery of IDEA part B funding by:
                          (1) Providing technical assistance to schools in completing the application for the funds; and
                          (2) Providing training to Bureau staff to improve the delivery of part B funds.

                          § 39.106
                          Who is eligible for special education funding?
                          To receive ISEP special education funding, a student must be under 22 years old and must not have received a high school diploma or its equivalent on the first day of eligible attendance. The following minimum age requirements also apply:
                          (a) To be counted as a kindergarten student, a child must be at least 5 years old by December 31; and
                          (b) To be counted as a first grade student; a child must be at least 6 years old by December 31.

                          § 39.107
                          Are schools allotted supplemental funds for special student and/or school costs?
                          Yes, schools are allotted supplemental funds for special student and/or school costs. ISEF provides additional funds to schools through add-on weights (called special cost factors). ISEF adds special cost factors as shown in the following table.

                              Cost Factor
                              For more information see

                              Gifted and talented students
                              §§ 39.110 through 39.121

                              Students with language development needs
                              §§ 39.130 through 39.137

                              Small school size
                              §§ 39.140 through 39.156

                              Geographic isolation of the school
                              § 39.160

                        Gifted and Talented Programs

                          § 39.110
                          Can ISEF funds be distributed for the use of gifted and talented students?
                          Yes, ISEF funds can be distributed for the provision of services for gifted and talented students.

                          § 39.111
                          What does the term gifted and talented mean?
                          The term gifted and talented means students, children, or youth who:
                          (a) Give evidence of high achievement capability in areas such as intellectual, creative, artistic, or leadership capacity, or in specific academic fields; and
                          (b) Need services or activities not ordinarily provided by the school in order to fully develop those capabilities.

                          § 39.112
                          What is the limit on the number of students who are gifted and talented?
                          There is no limit on the number of students that a school can classify as gifted and talented.

                          § 39.113
                          What are the special accountability requirements for the gifted and talented program?
                          If a school identifies more than 13 percent of its student population as gifted and talented the Bureau will immediately audit the school's gifted and talented program to ensure that all identified students:
                          (a) Meet the gifted and talented requirement in the regulations; and
                          (b) Are receiving gifted and talented services.

                          § 39.114
                          What characteristics may qualify a student as gifted and talented for purposes of supplemental funding?
                          To be funded as gifted and talented under this part, a student must be identified as gifted and talented in at least one of the following areas.
                          (a) Intellectual Ability means scoring in the top 5 percent on a statistically valid and reliable measurement tool of intellectual ability.
                          (b) Creativity/Divergent Thinking means scoring in the top 5 percent of performance on a statistically valid and reliable measurement tool of creativity/divergent thinking.
                          (c) Academic Aptitude/Achievement means scoring in the top 15 percent of academic performance in a total subject area score on a statistically valid and reliable measurement tool of academic achievement/aptitude, or a standardized assessment, such as an NRT or CRT.

                          (d) Leadership means the student is recognized as possessing the ability to lead, guide, or influence the actions of others as measured by objective standards that a reasonable person of the community would believe demonstrates that the student possess leadership skills. These standards include evidence from surveys, supportive documentation portfolios, elected or appointed positions in school, community, clubs and organization, awards documenting leadership capabilities. No school can identify more than 15 percent of its student population as gifted and talented through the leadership category.
                          (e) Visual and Performing Arts means outstanding ability to excel in any imaginative art form; including, but not limited to, drawing, printing, sculpture, jewelry making, music, dance, speech, debate, or drama as documented from surveys, supportive documentation portfolios, awards from judged or juried competitions. No school can identify more than 15 percent of its student population as gifted and talented through the visual and performing arts category.

                          § 39.115
                          How are eligible gifted and talented students identified and nominated?
                          (a) Screening can be completed annually to identify potentially eligible students. A student may be nominated for gifted and talented designation using the criteria in § 39.114 by any of the following:
                          (1) A teacher or other school staff;
                          (2) Another student;
                          (3) A community member;
                          (4) A parent or legal guardian; or
                          (5) The student himself or herself.
                          (b) Students can be nominated based on information regarding the student's abilities from any of the following sources:
                          (1) Collections of work;
                          (2) Audio/visual tapes;
                          (3) School grades;

                          (4) Judgment of work by qualified individuals knowledgeable about the student's performances (e.g., artists, musicians, poets, historians, etc.);
                          (5) Interviews or observations; or
                          (6) Information from other sources.
                          (c) The school must have written parental consent to collect documentation of gifts and talents under paragraph (b) of this section.

                          § 39.116
                          How does a school determine who receives gifted and talented services?
                          (a) To determine who receives gifted and talented funding, the school must use qualified professionals to perform a multi-disciplinary assessment. The assessment may include the examination of work samples or performance appropriate to the area under consideration. The school must have the parent or guardian's written permission to conduct individual assessments or evaluations. Assessments under this section must meet the following standards:
                          (1) The assessment must use assessment instruments specified in § 39.114 for each of the five criteria for which the student is nominated;
                          (2) If the assessment uses a multi-criteria evaluation, that evaluation must be an unbiased evaluation based on student needs and abilities;
                          (3) Indicators for visual and performing arts and leadership may be determined based on national, regional, or local criteria; and
                          (4) The assessment may use student portfolios.
                          (b) A multi-disciplinary team will review the assessment results to determine eligibility for gifted and talented services. The purpose of the team is to determine eligibility and placement to receive gifted and talented services.
                          (1) Team members may include nominator, classroom teacher, qualified professional who conducted the assessment, local experts as needed, and other appropriate personnel such as the principal and/or a counselor.
                          (2) A minimum of three team members is required to determine eligibility.
                          (3) The team will design a specific education plan to provide gifted and talented services related in the areas identified.

                          § 39.117
                          How does a school provide gifted and talented services for a student?

                          Gifted and talented services are provided through or under the supervision of highly qualified professional teachers. To provide gifted and talented services for a student, a school must take the steps in this section.
                          (a) The multi-disciplinary team formed under § 39.116(b) will sign a statement of agreement for placement of services based on documentation reviewed.
                          (b) The student's parent or guardian must give written permission for the student to participate.
                          (c) The school must develop a specific education plan that contains:
                          (1) The date of placement;
                          (2) The date services will begin;
                          (3) The criterion from § 39.114 for which the student is receiving services and the student's performance level;
                          (4) Measurable goals and objectives; and
                          (5) A list of staff responsible for each service that the school is providing.

                          § 39.118
                          How does a student receive gifted and talented services in subsequent years?
                          For each student receiving gifted and talented services, the school must conduct a yearly evaluation of progress, file timely progress reports, and update the specific education plan.
                          (a) If a school identifies a student as gifted and talented based on § 39.114 (a), (b), or (c), then the student does not need to reapply for the gifted and talented program. However, the student must be reevaluated at least every 3 years through the 10th grade to verify eligibility for funding.
                          (b) If a school identifies a student as gifted and talented based on § 39.114 (d) or (e), the student must be reevaluated annually for the gifted and talented program.

                          § 39.119
                          When must a student leave a gifted and talented program?
                          A student must leave the gifted and talented program when either:
                          (a) The student has received all of the available services that can meet the student's needs;
                          (b) The student no longer meets the criteria that have qualified him or her for the program; or
                          (c) The parent or guardian removes the student from the program.

                          § 39.120
                          How are gifted and talented services provided?
                          In providing services under this section, the school must:
                          (a) Provide a variety of programming services to meet the needs of the students;
                          (b) Provide the type and duration of services identified in the Individual Education Plan established for each student; and
                          (c) Maintain individual student files to provide documentation of process and services; and
                          (d) Maintain confidentiality of student records under the Family Educational Rights and Privacy Act (FERPA).

                          § 39.121
                          What is the WSU for gifted and talented students?
                          The WSU for a gifted and talented student is the base academic weight (see § 39.103) subtracted from 2.0. The following table shows the gifted and talented weights obtained using this procedure.

                              Grade level
                              Gifted and talented WSU

                              Kindergarten
                              0.85

                              Grades 1 to 3
                              0.62

                              Grades 4 to 6
                              0.85

                              Grades 7 to 8
                              0.62

                              Grades 9 to 12
                              0.50

                        Language Development Programs

                          § 39.130
                          Can ISEF funds be used for Language Development Programs?
                          Yes, schools can use ISEF funds to implement Language Development programs that demonstrate the positive effects of Native language programs on students' academic success and English proficiency. Funds can be distributed to a total aggregate instructional weight of 0.13 for each eligible student.

                          § 39.131
                          What is a Language Development Program?
                          A Language Development program is one that serves students who either:
                          (a) Are not proficient in spoken or written English;
                          (b) Are not proficient in any language;

                          (c) Are learning their Native language for the purpose of maintenance or language restoration and enhancement;
                          (d) Are being instructed in their Native language; or
                          (e) Are learning non-language subjects in their Native language.

                          § 39.132
                          Can a school integrate Language Development programs into its regular instructional program?
                          A school may offer Language Development programs to students as part of its regular academic program. Language Development does not have to be offered as a stand-alone program.

                          § 39.133
                          Who decides how Language Development funds can be used?
                          Tribal governing bodies or local school boards decide how their funds for Language Development programs will be used in the instructional program to meet the needs of their students.

                          § 39.134
                          How does a school identify a Limited English Proficient student?
                          A student is identified as limited English proficient (LEP) by using a nationally recognized scientifically research-based test.

                          § 39.135
                          What services must be provided to an LEP student?
                          A school must provide services that assist each LEP student to:
                          (a) Become proficient in English and, to the extent possible, proficient in their Native language; and
                          (b) Meet the same challenging academic content and student academic achievement standards that all students are expected to meet under 20 U.S.C. 6311(b)(1).

                          § 39.136
                          What is the WSU for Language Development programs?
                          Language Development programs are funded at 0.13 WSUs per student.

                          § 39.137
                          May schools operate a language development program without a specific appropriation from Congress?
                          Yes, a school may operate a language development program without a specific appropriation from Congress, but any funds used for such a program must come from existing ISEP funds. When Congress specifically appropriates funds for Indian or Native languages, the factor to support the language development program will be no more than 0.25 WSU.

                        Small School Adjustment

                          § 39.140
                          How does a school qualify for a Small School Adjustment?
                          A school will receive a small school adjustment if either:
                          (a) Its average daily membership (ADM) is less than 100 students; or
                          (b) It serves lower grades and has a diploma-awarding high school component with an average instructional daily membership of less than 100 students.

                          § 39.141
                          What is the amount of the Small School Adjustment?
                          (a) A school with a 3-year ADM of 50 or fewer students will receive an adjustment equivalent to an additional 12.5 base WSU; or

                          (b) A school with a 3-year ADM of 51 to 99 students will use the following formula to determine the number of WSU for its adjustment. With X being the ADM, the formula is as follows:

                            WSU adjustment = ((100−X)/200)*X

                          § 39.143
                          What is a small high school?
                          For purposes of this part, a small high school:
                          (a) Is accredited under 25 U.S.C. 2001(b);
                          (b) Is staffed with highly qualified teachers;
                          (c) Operates any combination of grades 9 through 12;
                          (d) Offers high school diplomas; and
                          (e) Has an ADM of fewer than 100 students.

                          § 39.144
                          What is the small high school adjustment?
                          (a) The small high school adjustment is a WSU adjustment given to a small high school that meets both of the following criteria:
                          (1) It has a 3-year average daily membership (ADM) of less than 100 students; and
                          (2) It operates as part of a school that during the 2003-04 school year also included lower grades.

                          (b) The following table shows the WSU adjustment given to small high schools. In the table, “X” stands for the ADM.

                              ADM of high schoolcomponent

                              Amount of small high school adjustment
                              School receives a component small school adjustment under § 39.141

                              50 or fewer students
                              6.25 base WSU
                              Yes.

                              51 to 99 students
                              determined using the following formula: WSU = ((100-X)/200)*X/2
                              Yes.

                              50 or fewer students
                              12.5 base WSU
                              No.

                              51 to 99 students
                              determined using the following formula: WSU = ((100-X)/200)*X
                              No.

                          § 39.145
                          Can a school receive both a small school adjustment and a small high school adjustment?
                          A school that meets the criteria in § 39.140 can receive both a small school adjustment and a small high school adjustment. The following table shows the total amount of adjustments for eligible schools by average daily membership (ADM) category.

                              ADM—entire school
                              ADM—high schoolcomponent

                              Small school adjustment
                              Small high schooladjustment

                              Totaladjustment

                              1-50
                              NA
                              12.5
                              NA
                              12.5

                              1-50
                              1-50
                              12.5
                              6.25
                              18.75

                              51-99
                              1-50

                                2 12.5-0.5
                              6.25
                              18.75-6.75

                              51-99
                              51-99

                                1 12.5-0.5

                                2 6.25-0.25
                              18.75-0.7

                              99
                              1-50
                              0.5
                              12.5
                              12.5

                              99
                              51-99
                              0.5

                                2 12.5-0.5
                              12.5-0.5

                              1 The amount of the adjustment is within this range. The exact figure depends upon the results obtained using the formula in § 39.141.

                              2 The amount of the adjustment is within this range. The exact figure depends upon the results obtained using the formula in § 39.144.

                          § 39.146
                          Is there an adjustment for small residential programs?
                          In order to compensate for the additional costs of operating a small residential program, OIEP will add to the total WSUs of each qualifying school as shown in the following table:

                              Type of residential program
                              Number of WSUs added

                              Residential student count of 50 or fewer ISEP-eligible students
                              12.5.

                              Residential student count of between 51 and 99 ISEP-eligible students
                              Determined by the formula ((100-X)/200))X, where X equals the residential student count.

                        Geographic Isolation Adjustment

                          § 39.160
                          Does ISEF provide supplemental funding for extraordinary costs related to a school's geographic isolation?
                          Yes. Havasupai Elementary School, for as long as it remains in its present location, will be awarded an additional cost factor of 12.5 WSU.

                      Subpart C—Administrative Procedures, Student Counts, and Verifications

                        Source:
                        70 FR 22205, Apr. 28, 2005, unless otherwise noted.

                        § 39.200
                        What is the purpose of the Indian School Equalization Formula?
                        OIEP uses the Indian School Equalization Formula (ISEF) to distribute Indian School Equalization Program (ISEP) appropriations equitably to Bureau-funded schools.

                        § 39.201
                        Does ISEF reflect the actual cost of school operations?
                        ISEF does not attempt to assess the actual cost of school operations either at the local school level or in the aggregate nationally. ISEF is a relative distribution of available funds at the local school level by comparison with all other Bureau-funded schools.

                        § 39.202
                        What are the definitions of terms used in this subpart?

                          Homebound means a student who is educated outside the classroom.

                          Home schooled means a student who is not enrolled in a school and is receiving educational services at home at the parent's or guardian's initiative.

                          School day means a day as defined by the submitted school calendar, as long as annual instructional hours are as they are reflected in § 39.213, excluding passing time, lunch, recess, and breaks.

                          Three-year average means:

                        (1) For academic programs, the average daily membership of the 3 years before the current year of operation; and
                        (2) For the residential programs, the count period membership of the 3 years before the current year of operation.

                        § 39.203
                        When does OIEP calculate a school's allotment?
                        OIEP calculates a school's allotment no later than July 1. Schools must submit final ADM enrollment figures no later than June 15.

                        § 39.204
                        How does OIEP calculate ADM?
                        OIEP calculates ADM by:
                        (a) Adding the total enrollment figures from periodic reports received from each Bureau-funded school; and
                        (b) Dividing the total enrollment for each school by the number of days in the school's reporting period.

                        § 39.205
                        How does OIEP calculate a school's total WSUs for the school year?
                        (a) OIEP will add the weights obtained from the calculations in paragraphs (a)(1), (a)(2), and (a)(3) of this section to obtain the total weighted student units (WSUs) for each school.
                        (1) Each year's ADM is multiplied by the applicable weighted student unit for each grade level;
                        (2) Calculate any supplemental WSUs generated by the students; and
                        (3) Calculate any supplemental WSUs generated by the schools.
                        (b) The total WSU for the school year is the sum of paragraphs (a)(1), (a)(2), and (a)(3) of this section.

                        § 39.206
                        How does OIEP calculate the value of one WSU?
                        (a) To calculate the appropriated dollar value of one WSU, OIEP divides the systemwide average number of WSUs for the previous 3 years into the current year's appropriation.
                        (b) To calculate the average WSU for a 3-year period:
                        (1) Step 1. Add together each year's total WSU (calculated under paragraph (b) of this section); and
                        (2) Step 2. Divide the sum obtained in step 1 by 3.

                        § 39.207
                        How does OIEP determine a school's funding for the school year?
                        To determine a school's funding for the school year, OIEP uses the following seven-step process:
                        (a) Step 1. Multiply the appropriate base academic and/or residential weight from § 39.103 by the number of students in each grade level category.
                        (b) Step 2. Multiply the number of students eligible for supplemental program funding under § 39.107 by the weights for the program.
                        (c) Step 3. Calculate the school-based supplemental weights under § 639.107.
                        (d) Step 4. Add together the sums obtained in steps 1 through 3 to obtain each school's total WSU.
                        (e) Step 5. Add together the total WSUs for all Bureau-funded schools.
                        (f) Step 6. Calculate the value of a WSU by dividing the current school year's funds by the average total WSUs as calculated under step 5 for the previous 3 years.
                        (g) Step 7. Multiply each school's WSU total by the base value of one WSU to determine funding for that school.

                        § 39.208
                        How are ISEP funds distributed?
                        (a) On July 1, schools will receive 80 percent of their funds as determined in § 39.207.
                        (b) On December 1, the balance will be distributed to all schools after verification of the school count and any adjustments made through the appeals process for the third year.

                        § 39.209
                        When may a school count a student for membership purposes?
                        If a student is enrolled, is in attendance during any of the first 10 days of school, and receives at least 5 days' instruction, the student is deemed to be enrolled all 10 days and shall be counted for ADM purposes. The first 10 days of school, for purposes of this section, are determined by the calendar that the school submits to OIEP.
                        (a) For ISEP purposes, a school can add a student to the membership when he or she has been enrolled and has received a full day of instruction from the school.
                        (b) Except as provided in § 39.210, to be counted for ADM, a student dropped under § 39.209 must:
                        (1) Be re-enrolled; and
                        (2) Receive a full day of instruction from the school.

                        § 39.210
                        When must a school drop a student from its membership?
                        If a student is absent for 10 consecutive school days, the school must drop that student from the membership for ISEP purposes of that school on the 11th day.

                        § 39.211
                        What other categories of students can a school count for membership purposes?
                        A school can count other categories of students for membership purposes as shown in the following table.

                            Type ofstudent

                            Circumstances under which student can be included in the school's membership

                            (a) Homebound
                            (1) The student is temporarily confined to the home for some or all of the school day for medical, family emergency, or other reasons required by law or regulation;(2) The student is being provided by the school with at least 5 documented contact hours each week of academic services by certified educational personnel; and
                              (3) Appropriate documentations is on file at the school.

                            (b) Located in an institutional setting outside of the school
                            The school is either:(1) Paying for the student to receive educational services from the facility; or
                              (2) Providing educational services by certified school staff for at least 5 documented contact hours each week.

                            (c) Taking college courses during the school day
                            The student is both:(1) Concurrently enrolled in, and receiving credits for both the school's courses and college courses; and
                              (2) In physical attendance at the school at least 3 documented contact hours per day.

                            (d) Taking distance learning courses
                            The student is both:(1) Receiving high school credit for grades; and
                              (2) In physical attendance at the school at least 3 documented contact hours per day.

                            (e) Taking internet courses
                            The student is both:(1) Receiving high school credit for grades; and
                              (2) Taking the courses at the school site under a teacher's supervision.

                        § 39.212
                        Can a student be counted as enrolled in more than one school?
                        Yes, if a student attends more than one school during an academic year, each school may count the student as enrolled once the student meets the criteria in 39.209.

                        § 39.213
                        Will the Bureau fund children being home schooled?
                        No, the Bureau will not fund any child that is being home schooled.

                        § 39.214
                        What is the minimum number of instructional hours required in order to be considered a full-time educational program?
                        A full time program provides the following number of instructional/student hours to the corresponding grade level:

                            Grade
                            Hours

                            K
                            720

                            1-3
                            810

                            4-8
                            900

                            9-12
                            970

                        § 39.215
                        Can a school receive funding for any part-time students?
                        (a) A school can receive funding for the following part-time students:
                        (1) Kindergarten students enrolled in a 2-hour program; and
                        (2) Grade 7-12 students enrolled in at least half but less than a full instructional day.
                        (b) The school must count students classified as part-time at 50 percent of their basic instructional WSU value.

                        Residential Programs

                          § 39.216
                          How does ISEF fund residential programs?
                          Residential programs are funded on a WSU basis using a formula that takes into account the number of nights of service per week. Funding for residential programs is based on the average of the 3 previous years' residential WSUs.

                          § 39.217
                          How are students counted for the purpose of funding residential services?
                          For a student to be considered in residence for purposes of this subpart, the school must be able to document that the student was:
                          (a) In residence at least one night during the first full week of October;
                          (b) In residence at least one night during the week preceding the first full week in October;
                          (c) In residence at least one night during the week following the first full week in October; and
                          (d) Present for both the after school count and the midnight count at least one night during each week specified in this section.

                          § 39.218
                          Are there different formulas for different levels of residential services?
                          (a) Residential services are funded as shown in the following table:

                              If a residential program operates . . .
                              Each student is funded at the level of . . .

                              (1) 4 nights per week or less
                              Total WSU × 4/7.

                              (2) 5, 6 or 7 nights per week
                              Total WSU × 7/7.

                          (b) In order to qualify for residential services funding under paragraph (a)(2) of this section, a school must document that at least 10 percent of residents are present on 3 of the 4 weekends during the count period.
                          (c) At least 50 percent of the residency levels established during the count period must be maintained every month for the remainder of the school year.
                          (d) A school may obtain waivers from the requirements of this section if there are health or safety justifications.

                          § 39.219
                          What happens if a residential program does not maintain residency levels required by this subpart?
                          Each school must maintain its declared nights of service per week as certified in its submitted school calendar. For each month that a school does not maintain 25 percent of the residency shown in its submitted calendar, the school will lose one-tenth of its current year allocation.

                          § 39.220
                          What reports must residential programs submit to comply with this subpart?
                          Residential programs must report their monthly counts to the Director on the last school day of the month. To be counted, a student must have been in residence at least 10 nights during each full school month.

                          § 39.221
                          What is a full school month?
                          A full school month is each 30-day period following the first day that residential services are provided to students based on the school residential calendar.

                        Phase-in Period

                          § 39.230
                          How will the provisions of this subpart be phased in?
                          The calculation of the three-year rolling average of ADM for each school and for the entire Bureau-funded school system will be phased-in as shown in the following table.

                              Time period
                              How OIEP must calculate ADM

                              (a) First school year after May 31, 2005
                              Use the prior 3 years' count period to create membership for funding purposes

                              (b) Second school year after May 31, 2005
                              (1) The academic program will use the previous year's ADM school year and the 2 prior years' count periods; and(2) The residential program will use the previous year's count period and the 2 prior years' count weeks

                              (c) Each succeeding school year after May 31, 2005
                              Add one year of ADM or count period and drop one year of prior count weeks until both systems are operating on a 3-year rolling average using the previous 3 years' count after period or ADM, respectively.

                      Subpart D—Accountability

                        Source:
                        70 FR 22205, Apr. 28, 2005, unless otherwise noted.

                        § 39.401
                        What is the purpose of this subpart?
                        The purpose of this subpart is to ensure accountability of administrative officials by creating procedures that are systematic and can be verified by a random independent outside auditing procedures. These procedures will ensure the equitable distribution of funds among schools.

                        § 39.402
                        What definitions apply to terms used in this subpart?

                          Administrative officials means any persons responsible for managing and operating a school, including the school supervisor, the chief school administrator, tribal officials, Education Line Officers, and the Director, OIEP.

                          Director means the Director of the Office of Indian Education Programs of the Bureau of Indian Affairs.

                          Education Line Officer means the Bureau official in charge of Bureau education programs and functions in an Agency who reports to the Director.

                        § 39.403
                        What certification is required?
                        (a) Each school must maintain an individual file on each student receiving basic educational and supplemental services. The file must contain written documentation of the following:
                        (1) Each student's eligibility and attendance records;

                        (2) A complete listing of all supplemental services provided, including all necessary documentation required by statute and regulations (e.g., a current and complete Individual Education Plan for each student receiving supplemental services); and
                        (3) Documentation of expenditures and program delivery for student transportation to and from school provided by commercial carriers.
                        (b) The School must maintain the following files in a central location:
                        (1) The school's ADM and supplemental program counts and residential count;
                        (2) Transportation related documentation, such as school bus mileage, bus routes;
                        (3) A list of students transported to and from school;
                        (4) An electronic student count program or database;
                        (5) Class record books;
                        (6) Supplemental program class record books;
                        (7) For residential programs, residential student attendance documentation;
                        (8) Evidence of teacher certification; and
                        (9) The school's accreditation certificate.
                        (c) The Director must maintain a record of required certifications for ELOs, specialists, and school superintendents in a central location.

                        § 39.404
                        What is the certification and verification process?
                        (a) Each school must:
                        (1) Certify that the files required by § 39.403 are complete and accurate; and
                        (2) Compile a student roster that includes a complete list of all students by grade, days of attendance, and supplemental services.
                        (b) The chief school administrator and the president of the school board are responsible for certifying the school's ADM and residential count is true and accurate to the best of their knowledge or belief and is supported by appropriate documentation.
                        (c) OIEP's education line officer (ELO) will annually review the following to verify that the information is true and accurate and is supported by program documentation:
                        (1) The eligibility of every student;
                        (2) The school's ADM and supplemental program counts and residential count;
                        (3) Evidence of accreditation;

                        (4) Documentation for all provided basic and supplemental services, including all necessary documentation required by statute and regulations (e.g., a current and complete Individual Education Plan for each student receiving supplemental services); and
                        (5) Documentation required by subpart G of this part for student transportation to and from school provided by commercial carriers.

                        § 39.405
                        How will verifications be conducted?

                        The eligibility of every student shall be verified. The ELO will take a random sampling of five days with a minimum of one day per grading period to verify the information in § 39.404(c). The ELO will verify the count for the count period and verify residency during the remainder of the year.

                        § 39.406
                        What documentation must the school maintain for additional services it provides?
                        Every school must maintain a file on each student receiving additional services. (Additional services include homebound services, institutional services, distance courses, Internet courses or college services.) The school must certify, and its records must show, that:
                        (a) Each homebound or institutionalized student is receiving 5 contact hours each week by certified educational personnel;
                        (b) Each student taking college, distance or internet courses is in physical attendance at the school for at least 3 certified contact hours per day.

                        § 39.407
                        How long must a school maintain records?
                        The responsible administrative official for each school must maintain records relating to ISEP, supplemental services, and transportation-related expenditures. The official must maintain these records in appropriate retrievable storage for at least the four years prior to the current school year, unless Federal records retention schedules require a longer period.

                        § 39.408
                        What are the responsibilities of administrative officials?
                        Administrative officials have the following responsibilities:
                        (a) Applying the appropriate standards in this part for classifying and counting ISEP eligible Indian students at the school for formula funding purposes;
                        (b) Accounting for and reporting student transportation expenditures;
                        (c) Providing training and supervision to ensure that appropriate standards are adhered to in counting students and accounting for student transportation expenditures;
                        (d) Submitting all reports and data on a timely basis; and
                        (e) Taking appropriate disciplinary action for failure to comply with requirements of this part.

                        § 39.409
                        How does the OIEP Director ensure accountability?
                        (a) The Director of OIEP must ensure accountability in student counts and student transportation by doing all of the following:
                        (1) Conducting annual independent and random field audits of the processes and reports of at least one school per OIEP line office to ascertain the accuracy of Bureau line officers' reviews;
                        (2) Hearing and making decisions on appeals from school officials;
                        (3) Reviewing reports to ensure that standards and policies are applied consistently, education line officers treat schools fairly and equitably, and the Bureau takes appropriate administrative action for failure to follow this part; and
                        (4) Reporting the results of the findings and determinations under this section to the appropriate tribal governing body.
                        (b) The purpose of the audit required by paragraph (a)(1) of this section is to ensure that the procedures outlined in these regulations are implemented. To conduct the audit required by paragraph (a)(1) of this section, OIEP will select an independent audit firm that will:
                        (1) Select a statistically valid audit sample of recent student counts and student transportation reports; and
                        (2) Analyze these reports to determine adherence to the requirements of this part and accuracy in reporting.

                        § 39.410
                        What qualifications must an audit firm meet to be considered for auditing ISEP administration?
                        To be considered for auditing ISEP administration under this subpart, an independent audit firm must:
                        (a) Be a licensed Certified Public Accountant Firm that meets all requirements for conducting audits under the Federal Single Audit Act;
                        (b) Not be under investigation or sanction for violation of professional audit standards or ethics;
                        (c) Certify that it has conducted a conflict of interests check and that no conflict exists; and
                        (d) Be selected through a competitive bidding process.

                        § 39.411
                        How will the auditor report its findings?
                        (a) The auditor selected under § 39.410 must:
                        (1) Provide an initial draft report of its findings to the governing board or responsible Federal official for the school(s) involved; and
                        (2) Solicit, consider, and incorporate a response to the findings, where submitted, in the final audit report.
                        (b) The auditor must submit a final report to the Assistant Secretary—Indian Affairs and all tribes served by each school involved. The report must include all documented exceptions to the requirements of this part, including those exceptions that:
                        (1) The auditor regards as negligible;
                        (2) The auditor regards as significant, or as evidence of incompetence on the part of responsible officials, and that must be resolved in a manner similar to significant audit exceptions in a fiscal audit; or
                        (3) Involve fraud and abuse.
                        (c) The auditor must immediately report exceptions involving fraud and abuse directly to the Department of the Interior Inspector General's office.

                        § 39.412
                        What sanctions apply for failure to comply with this subpart?
                        (a) The employer of a responsible administrative official must take appropriate personnel action if the official:
                        (1) Submits false or fraudulent ISEP-related counts;
                        (2) Submits willfully inaccurate counts of student participation in weighted program areas; or
                        (3) Certifies or verifies submissions described in paragraphs (a)(1) or (a)(2) of this section.
                        (b) Unless prohibited by law, the employer must report:
                        (1) Notice of final Federal personnel action to the tribal governing body and tribal school board; and
                        (2) Notice of final tribal or school board personnel action to the Director of OIEP.

                        § 39.413
                        Can a school appeal the verification of the count?
                        Yes, a school may appeal to the Director any administrative action disallowing any academic, transportation, supplemental program or residential count. In this appeal, the school may provide evidence to indicate the student's eligibility, membership or residency or adequacy of a program for all or a portion of school year. The school must follow the applicable appeals process in 25 CFR part 2 or 25 CFR part 900, subpart L.

                      Subpart E—Contingency Fund

                        Source:
                        70 FR 22205, Apr. 28, 2005, unless otherwise noted.

                        § 39.500
                        What emergency and contingency funds are available?
                        The Secretary:
                        (a) Must reserve 1 percent of funds from the allotment formula to meet emergencies and unforeseen contingencies affecting educational programs;
                        (b) Can carry over to the next fiscal year a maximum of 1 percent the current year funds; and
                        (c) May distribute all funds in excess of 1 percent equally to all schools or distribute excess as a part of ISEP.

                        § 39.501
                        What is an emergency or unforeseen contingency?
                        An emergency or unforeseen contingency is an event that meets all of the following criteria:
                        (a) It could not be planned for;
                        (b) It is not the result of mismanagement, malfeasance, or willful neglect;
                        (c) It is not covered by an insurance policy in force at the time of the event;
                        (d) The Assistant Secretary determines that Bureau cannot reimburse the emergency from the facilities emergency repair fund; and
                        (e) It could not have been prevented by prudent action by officials responsible for the educational program.

                        § 39.502
                        How does a school apply for contingency funds?
                        To apply for contingency funds, a school must send a request to the ELO. The ELO must send the request to the Director for consideration within 48 hours of receipt. The Director will consider the severity of the event and will attempt to respond to the request as soon as possible, but in any event within 30 days.

                        § 39.503
                        How can a school use contingency funds?
                        Contingency funds can be used only for education services and programs, including repair of educational facilities.

                        § 39.504
                        May schools carry over contingency funds to a subsequent fiscal year?
                        Bureau-operated schools may carry over funds to the next fiscal year.

                        § 39.505
                        What are the reporting requirements for the use of the contingency fund?
                        (a) At the end of each fiscal year, Bureau/OIEP shall send an annual report to Congress detailing how the Contingency Funds were used during the previous fiscal year.
                        (b) By October 1 of each year, the Bureau must send a letter to each school and each tribe operating a school listing the allotments from the Contingency Fund.

                      Subpart F—School Board Training Expenses

                        Source:
                        70 FR 22205, Apr. 28, 2005, unless otherwise noted.

                        § 39.600
                        Are Bureau-operated school board expenses funded by ISEP limited?
                        Yes. Bureau-operated schools are limited to $8,000 or one percent (1%) of ISEP allotted funds (not to exceed $15,000).

                        § 39.601
                        Is school board training for Bureau-operated schools considered a school board expense subject to the limitation?
                        No, school board training for Bureau-operated schools is not considered a school board expense subject to the limitation in § 39.600.

                        § 39.603
                        Is school board training required for all Bureau-funded schools?
                        Yes. Any new member of a local school board or an agency school board must complete 40 hours of training within one year of appointment, provided that such training is recommended, but is not required, for a tribal governing body that serves in the capacity of a school board.

                        § 39.604
                        Is there a separate weight for school board training at Bureau-operated schools?
                        Yes. There is an ISEP weight not to exceed 1.2 WSUs to cover school board training and expenses at Bureau-operated schools.

                      Subpart G—Student Transportation

                        Source:
                        70 FR 22205, Apr. 28, 2005, unless otherwise noted.

                        § 39.700
                        What is the purpose of this subpart?
                        (a) This subpart covers how transportation mileage and funds for schools are calculated under the ISEP transportation program. The program funds transportation of students from home to school and return.
                        (b) To use this part effectively, a school should:
                        (1) Determine its eligibility for funds using the provisions of §§ 39.702 through 39.708;
                        (2) Calculate its transportation miles using the provisions of §§ 39.710 and 39.711; and
                        (3) Submit the required reports as required by §§ 39.721 and 39.722.

                        § 39.701
                        What definitions apply to terms used in this subpart?

                          ISEP means the Indian School Equalization Program.

                          Transportation mileage count week means the last full week in September.

                          Unimproved roads means unengineered earth roads that do not have adequate gravel or other aggregate surface materials applied and do not have drainage ditches or shoulders.

                        Eligibility for Funds

                          § 39.702
                          Can a school receive funds to transport residential students using commercial transportation?
                          A school transporting students by commercial bus, train, airplane, or other commercial modes of transportation will be funded at the cost of the commercial ticket for:

                          (a) The trip from home to school in the Fall;

                          (b) The round-trip return home at Christmas; and
                          (c) The return trip home at the end of the school year.

                          § 39.703
                          What ground transportation costs are covered for students traveling by commercial transportation?
                          This section applies only if a school transports residential students by commercial bus, train or airplane from home to school. The school may receive funds for the ground miles that the school has to drive to deliver the students or their luggage from the bus, train, or plane terminal to the school.

                          § 39.704
                          Are schools eligible to receive chaperone expenses to transport residential students?
                          Yes. Schools may receive funds for actual chaperone expenses, excluding salaries, during the transportation of students to and from home at the beginning and end of the school year and at Christmas.

                          § 39.705
                          Are schools eligible for transportation funds to transport special education students?
                          Yes. A school that transports a special education student from home to a treatment center and back to home on a daily basis as required by the student's Individual Education Plan may count those miles for day student funding.

                          § 39.706
                          Are peripheral dormitories eligible for day transportation funds?
                          Yes. If the peripheral dormitory is required to transport dormitory students to the public school, the dormitory may count those miles driven transporting students to the public school for day transportation funding.

                          § 39.707
                          Which student transportation expenses are currently not eligible for Student Transportation Funding?
                          (a) The following transportation expenses are currently not eligible for transportation funding, however the data will be collected under the provisions in this subpart:
                          (1) Fuel and maintenance runs;
                          (2) Transportation home for medical or other emergencies;
                          (3) Transportation from school to treatment or special services programs;
                          (4) Transportation to after-school programs; and
                          (5) Transportation for day and boarding school students to attend instructional programs less than full-time at locations other than the school reporting the mileage.
                          (b) Examples of after-school programs covered by paragraph (a)(4) of this section include:
                          (1) Athletics;
                          (2) Band;
                          (3) Detention;
                          (4) Tutoring, study hall and special classes; and
                          (5) Extra-curricular activities such as arts and crafts.

                          § 39.708
                          Are miles generated by non-ISEP eligible students eligible for transportation funding?
                          No. Only miles generated by ISEP-eligible students enrolled in and attending a school are eligible for student transportation funding.

                        Calculating Transportation Miles

                          § 39.710
                          How does a school calculate annual bus transportation miles for day students?
                          To calculate the total annual bus transportation miles for day students, a school must use the appropriate formula from this section. In the formulas, Tu = Miles driven on Tuesday of the transportation mileage count week, W = Miles driven on Wednesday of the transportation mileage count week, and Th = Miles driven on Thursday of the transportation mileage count week.
                          (a) For ISEP-eligible day students whose route is entirely over improved roads, calculate miles using the following formula:

                            ER28AP05.087

                          (b) For ISEP-eligible day students whose route is partly over unimproved roads, calculate miles using the following three steps.
                          (1) Step 1. Apply the following formula to miles driven over improved roads only:

                            ER28AP05.088

                          (2) Step 2. Apply the following formula to miles driven over unimproved roads only:

                            ER28AP05.089

                          (3) Step 3. Add together the sums from steps 1 and 2 to obtain the total annual transportation miles.

                          § 39.711
                          How does a school calculate annual bus transportation miles for residential students?
                          To calculate the total annual transportation miles for residential students, a school must use the procedures in paragraph (b) of this section.
                          (a) The school can receive funds for the following trips:
                          (1) Transportation to the school at the start of the school year;
                          (2) Round trip home at Christmas; and
                          (3) Return trip to home at the end of the school year.
                          (b) To calculate the actual miles driven to transport students from home to school at the start of the school year, add together the miles driven for all buses used to transport students from their homes to the school. If a school transports students over unimproved roads, the school must separate the number of miles driven for each bus into improved miles and unimproved miles. The number of miles driven is the sum of:
                          (1) The number of miles driven on improved roads; and
                          (2) The number of miles driven on unimproved roads multiplied by 1.2.
                          (c) The annual miles driven for each school is the sum of the mileage from paragraphs (b)(1) and (b)(2) of this section multiplied by 4.

                        Reporting Requirements

                          § 39.720
                          Why are there different reporting requirements for transportation data?
                          In order to construct an actual cost data base, residential and day schools must report data required by §§ 39.721 and 39.722.

                          § 39.721
                          What transportation information must off-reservation boarding schools report?
                          (a) Each off-reservation boarding school that provides transportation must report annually the information required by this section. The report must:
                          (1) Be submitted to OIEP by August 1 and cover the preceding school year;
                          (2) Include a Charter/Commercial and Air Transportation Form signed and certified as complete and accurate by the School Principal and the appropriate ELO; and
                          (3) Include the information required by paragraph (b) of this section.
                          (b) Each annual transportation report must include the following information:
                          (1) Fixed vehicle costs, including: the number and type of buses, passenger size, and local GSA rental rate and duration of GSA contract;
                          (2) Variable vehicle costs;
                          (3) Mileage traveled to transport students to and from school on school days, to sites of special services, and to extra-curricular activities;
                          (4) Medical trips;
                          (5) Maintenance and Service costs; and
                          (6) Driver costs;
                          (7) All expenses referred to in § 39.707.

                          § 39.722
                          What transportation information must day schools, on-reservation boarding schools and peripheral dormitory schools report?
                          (a) By August 1 of each year, all schools and peripheral dorms that provide transportation must submit a report that covers the preceding year. This report must include:
                          (1) Fixed vehicle costs and other costs, including: the number and type of buses, passenger size, and local GSA rental rate and duration of GSA contract;
                          (2) Variable vehicle costs;
                          (3) Mileage traveled to transport students to and from school on school days, to sites of special services, and to extra-curricular activities;
                          (4) Mileage driven for student medical trips;

                          (5) Costs of vehicle maintenance and service cost, including cost of miles driven to obtain maintenance and service;
                          (6) Driver costs; and
                          (7) All expenses referred to in § 39.707.
                          (b) In addition, all day schools and on-reservation boarding schools must include in their report a Day Student Transportation Form signed and certified as complete and accurate by the School Principal and the appropriate ELO.

                        Miscellaneous Provisions

                          § 39.730
                          Which standards must student transportation vehicles meet?
                          All vehicles used by schools to transport students must meet or exceed all appropriate Federal motor vehicle safety standards and State or Tribal motor vehicle safety standards. The Bureau will not fund transportation mileage and costs incurred transporting students in vehicles that do not meet these standards.

                          § 39.731
                          Can transportation time be used as instruction time for day school students?
                          No. Transportation time cannot be used as instruction time for day school students in meeting the minimum required hours for academic funding.

                          § 39.732
                          How does OIEP allocate transportation funds to schools?
                          OIEP allocates transportation funds based on the types of transportation programs that the school provides. To allocate transportation funds OIEP:
                          (a) Multiplies the one-way commercial costs for all schools by four to identify the total commercial costs for all schools;
                          (b) Subtracts the commercial cost total from the appropriated transportation funds and allocates the balance of the transportation funds to each school with a per-mile rate;
                          (c) Divides the balance of funds by the sum of the annual day miles and the annual residential miles to identify a per-mile rate;
                          (d) For day transportation, multiplies the per-mile rate times the annual day miles for each school; and
                          (e) For residential transportation, multiplies the per mile rate times the annual transportation miles for each school.

                      Subpart H—Determining the Amount Necessary To Sustain an Academic or Residential Program

                        Source:
                        70 FR 22205, Apr. 28, 2005, unless otherwise noted.

                        § 39.801
                        What is the formula to determine the amount necessary to sustain a school's academic or residential program?

                        (a) The Secretary's formula to determine the minimum annual amount necessary to sustain a Bureau-funded school's academic or residential program is as follows:

                        Student Unit Value × Weighted Student Unit = Annual Minimum Amount per student.

                        (b) Sections 39.802 through 39.807 explain the derivation of the formula in paragraph (a) of this section.
                        (c) If the annual minimum amount calculated under this section and §§ 39.802 through 39.807 is not fully funded, OIEP will pro rate funds distributed to schools using the Indian School Equalization Formula.

                        § 39.802
                        What is the student unit value in the formula?
                        The student unit value is the dollar value applied to each student in an academic or residential program. There are two types of student unit values: the student unit instructional value (SUIV) and the student unit residential value (SURV).
                        (a) The student unit instructional value (SUIV) applies to a student enrolled in an instructional program. It is an annually established ratio of 1.0 that represents a student in grades 4 through 6 of a typical non-residential program.
                        (b) The student unit residential value (SURV) applies to a residential student. It is an annually established ratio of 1.0 that represents a student in grades 4 through 6 of a typical residential program.

                        § 39.803
                        What is a weighted student unit in the formula?

                        A weighted student unit is an adjusted ratio using factors in the Indian School Equalization Formula to establish educational priorities and to provide for the unique needs of specific students, such as:
                        (a) Students in grades kindergarten through 3 or grades 7 through 12;
                        (b) Special education students;
                        (c) Gifted and talented students;
                        (d) Distance education students;
                        (e) Vocational and industrial education students;
                        (f) Native Language Instruction students;
                        (g) Small schools;
                        (h) Personnel costs;
                        (i) Alternative schooling; and
                        (j) Early Childhood Education programs.

                        § 39.804
                        How is the SUIV calculated?
                        The SUIV is calculated by the following 5-step process:
                        (a) Step 1. Use the adjusted national average current expenditures (ANACE) of public and private schools determined by data from the U.S. Department of Education-National Center of Education Statistics (NCES) for the last school year for which data is available.
                        (b) Step 2. Subtract the average specific Federal share per student (title I part A and IDEA part B) of the total revenue for Bureau-funded elementary and secondary schools for the last school year for which data is available as reported by NCES (15%).
                        (c) Step 3. Subtract the administrative cost grant/agency area technical services revenue per student as a percentage of the total revenue (current expenditures) of Bureau-funded schools from the last year data is available.
                        (d) Step 4. Subtract the day transportation revenue per student as a percentage of the total revenue (current revenue) Bureau-funded schools for the last school year for which data is available.
                        (e) Step 5. Add Johnson O'Malley funding. (See the table, in § 39.805)

                        § 39.805
                        What was the student unit for instruction value (SUIV) for the school year 1999-2000?
                        The process described in § 39.804 is illustrated in the table below, using figures for the 1999-2000 school year:

                            Step 1
                            $8,030
                            ANACE.

                            Step 2
                            −1205
                            Average specific Federal share of total revenue for Bureau-funded schools.

                            Step 3
                            −993
                            Cost grant/technical services revenue as a percentage total revenue.

                            Step 4
                            −658
                            Transportation revenue as a percentage of the total revenue.

                            Step 5
                            85
                            Johnson O'Malley funding.

                            Total
                            $5,259
                            SUIV.

                        § 39.806
                        How is the SURV calculated?
                        (a) The SURV is the adjusted national average current expenditures for residential schools (ANACER) of public and private residential schools. This average is determined using data from the Association of Boarding Schools.
                        (b) Applying the procedure in paragraph (a) of this section, the SURV for school year 1999-2000 was $11,000.

                        § 39.807
                        How will the Student Unit Value be adjusted annually?
                        (a) The student unit instructional value (SUIV) and the student unit residential value (SURV) will be adjusted annually to derive the current year Student Unit Value (SUV) by dividing the calculated SUIV and the SURV into two parts and adjusting each one as shown in this section.
                        (1) The first part consists of 85 percent of the calculated SUIV and the SURV. OIEP will adjust this portion using the personnel cost of living increase of the Department of Defense schools for each year.
                        (2) The second part consists of 15 percent the calculated SUIV and the SURV. OIEP will adjust this portion using the Consumer Price Index-Urban of the Department of Labor.
                        (b) If the student unit value amount is not fully funded, the schools will receive their pro rata share using the Indian School Equalization Formula.

                        § 39.808
                        What definitions apply to this subpart?

                          Adjusted National Average Current Expenditure [ANACE] means the actual current expenditures for pupils in fall enrollment in public elementary and secondary schools for the last school year for which data is available. These expenditures are adjusted annually to reflect current year expenditures of federally financed schools' cost of day and residential programs.

                          Current expenditures means expenses related to classroom instruction, classroom supplies, administration, support services-students and other support services and operations. Current expenditures do not include facility operations and maintenance, buildings and improvements, furniture, equipment, vehicles, student activities and debt retirement.

                        § 39.809
                        Information collection.

                        Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This part involves collections of information subject to the PRA in §§ 39.410 and 39.502. These collections have been approved by OMB under control numbers 1076-0122, 1076-0134, and 1076-0163.

                      Subpart I—Interim Maintenance and Minor Repair Fund

                        Source:
                        44 FR 61864, Oct. 26, 1979, unless otherwise noted. Redesignated at 47 FR 13327, Mar. 30, 1982. Redesignated at 70 FR 33702, June 9, 2005.

                        § 39.900
                        Establishment and funding of an Interim Maintenance and Minor Repair Fund.
                        There is established in the Division of Facilities Management a separate temporary fund entitled the Interim Maintenance and Minor Repair Fund. The Assistant Secretary shall cause the distribution of an amount of $1 million, under the FY 1980 Appropriation for the Bureau, from budget activity 3500, “General Management and Facilities Operation”, to the direct use of schools, and shall create an appropriate account or subaccount for the Interim Maintenance and Minor Repair Fund and credit these funds thereto.

                        § 39.901
                        Conditions for distribution.
                        Funds from the Interim Maintenance and Minor Repair Fund shall be distributed to Bureau operated and funded schools and shall be separately earmarked in local school financial plans solely for expenditure at the discretion of the school supervisor for cost of school facility maintenance and minor repair. These funds shall be used to meet immediate minor repair and maintenance needs.

                        § 39.902
                        Allocation.
                        (a) Interim Maintenance and Minor Repair funds shall be allocated to all Bureau operated and contract schools based on the number of square feet of floor space used for that school's educational program, for student residence and for support facilities. Staff quarters shall be specifically excluded from the computation.
                        (b) Square footage figures used in determining school allocations shall be taken from the facilities inventory maintained by the Division of Facilities Engineering.
                        (c) In those cases, such as contract schools, where square footage figures are not now available, it shall be the responsibility of the Bureau's Division of Facilities Engineering to correct the information.
                        (d) Schools in Alaska shall receive a 25% cost adjustment increase in the computation of their allocation.

                        § 39.903
                        Use of funds.
                        Funds allocated under this provision for maintenance and minor repair shall be used for no other purpose.

                        § 39.904
                        Limitations.
                        Nothing in this provision shall be interpreted as relieving the Bureau branch of Facilities Management or its field offices of any responsibility for continuing to provide maintenance and repair service to schools through existing procedures.

                      Subpart J—Administrative Cost Formula

                        Source:
                        56 FR 35795, July 26, 1991, unless otherwise noted. Redesignated at 70 FR 33702, June 9, 2005.

                        § 39.1000
                        Purpose and scope.
                        The purpose of this subpart is to provide funds at the agency and area education offices for FY 1991 and future years for administration of all Bureau of Indian Affairs education functions, including but not limited to school operations, continuing education, early childhood education, post-secondary education and Johnson-O'Malley Programs.

                        § 39.1001
                        Definitions.
                        (a) Agency Education Office means a field office of the Office of Indian Education Programs providing administrative direction and supervision to one or more Bureau-operated schools as well as being responsible for all other education functions serving tribes within that agency's jurisdiction.
                        (b) Area Education Office means a field office of the Office of Indian Education Programs responsible for all education functions serving tribes not serviced by an agency education office an in some cases providing administrative direction to one or more off-reservation boarding schools not under an agency education office.

                        § 39.1002
                        Allotment of education administrative funds.
                        The total annual budget for agencies/areas shall be allotted to the Director and through him/her to agency and area education offices. This total budget shall be distributed to the various agency and area education offices as follows:
                        (a) Each agency or area education office as defined above shall receive a base amount of $50,000 for basic administrative costs; and
                        (b) Each agency or area education office as defined above shall receive an amount under these funds equal to two percent of the total higher education, Johnson-O'Malley and adult education funds administered by each office, except that the Navajo Agencies are restricted to a maximum of $50,000 for administering the Johnson-O'Malley and higher education programs; and
                        (c) Eighty percent of the remaining funds shall be distributed proportionately based on the number of schools operated under the jurisdiction of each agency or area education office, with Bureau-operated schools counting as 1 and contract/grant schools counting as 0.6; and
                        (d) The remaining twenty percent shall be distributed proportionately based on the total weighted student units generated by all schools under the jurisdiction of each agency or area education office.

                        § 39.1003
                        Allotment exception for FY 1991.
                        For FY 1991 only, the Director may reserve an amount equal to no more than one half of the funds received in FY 1990 by those offices to be closed in FY 1991 to cover severance pay costs, lump sum leave payments and relocation costs for those individuals affected by the closures. Any balance uncommitted by March 31, 1991, shall be distributed in accordance with the formula in § 39.122.

                      Subpart K—Pre-kindergarten Programs

                        Source:
                        44 FR 61864, Oct. 26, 1979, unless otherwise noted. Redesignated at 47 FR 13327, Mar. 30, 1982. Redesignated at 70 FR 33702, June 9, 2005.

                        § 39.1100
                        Interim fiscal year 1980 and fiscal year 1981 funding for pre-kindergarten programs previously funded by the Bureau.

                        Those schools having pre-kindergarten programs funded fully or in part from Bureau education funds in fiscal year 1979 shall be funded from Bureau education funds by the Director in fiscal year 1980 and fiscal year 1981 at their fiscal year 1979 Bureau education funding levels. The fiscal year 1979 pre-kindergarten Bureau funding amount for each Bureau funded school shall be deducted from the school's fiscal year 1979 Bureau Education Budget amount prior to application of the phase-in provision.
                        [44 FR 61864, Oct. 26, 1979. Redesignated at 47 FR 13327, Mar. 30, 1982. Redesignated and amended at 70 FR 33702, June 9, 2005]

                        § 39.1101
                        Addition of pre-kindergarten as a weight factor to the Indian School Equalization Formula in fiscal year 1982.
                        The Director, in consultation with the tribes and school boards, shall determine appropriate weight factors needed to include pre-kindergarten programs in the Indian School Equalization Formula in fiscal year 1982. Based on a needs assessment, to be completed by January 1, 1980, pre-kindergarten programs shall be included in the Bureau's education request for fiscal year 1982.

                      Subpart L—Contract School Operation and Maintenance Fund

                        Source:
                        44 FR 61864, Oct. 26, 1979, unless otherwise noted. Redesignated at 70 FR 33702, June 9, 2005.

                        § 39.1200
                        Definitions.
                        Contract school operation and maintenance costs for fiscal year 1979 means the sum of costs for custodial salaries and fringe benefits, related supplies and equipment and equipment repair, insurance, and school operation utilities costs, where such costs are not paid by the Division of Facilities Management or other noneducation Bureau sources.

                        § 39.1201
                        Establishment of an interim fiscal year 1980 operation and maintenance fund for contract schools.
                        There is established in the Division of Facilities Management a separate fund entitled the Contract School Operation and Maintenance Fund. The Secretary shall cause the distribution of an amount of $2.5 million, under the fiscal year 1980 appropriation for the Bureau, from budget activity 3500. “General Management and Facilities Operations”, to the schools through this fund and shall create an appropriate account or subaccount for the Contract School Operation and Maintenance Fund.

                        § 39.1202
                        Distribution of funds.
                        (a) Each contract school shall receive in fiscal year 1980 a portion of the Contract School Operation and Maintenance Fund determined by the percentage share which that school's fiscal year 1979 operation and maintenance cost represents in the total fiscal year 1979 operation and maintenance cost for all such schools.
                        (b) To be eligible for these funds, a contract school shall submit a detailed report of actual operation and maintenance costs for fiscal year 1979 to the Director by November 23, 1979. These cost figures will be subject to verification by the Director to assure their accuracy prior to the allotment of any funds under this subpart.
                        (c) Any funds generated under this subpart shall be included in the computation of the phase-in amount if supplemental operation and maintenance funds were included in a school's fiscal year 1979 3100 contract funds.
                        [44 FR 61864, Oct. 26, 1979. Redesignated at 47 FR 13327, Mar. 30, 1982. Redesignated and amended at 70 FR 33702, June 9, 2005]

                        § 39.1203
                        Future consideration of contract school operation and maintenance funding.
                        The Assistant Secretary shall arrange for full funding for operation and maintenance of contract schools by fiscal year 1981.

                    Pt. 40
                    PART 40—ADMINISTRATION OF EDUCATIONAL LOANS, GRANTS AND OTHER ASSISTANCE FOR HIGHER EDUCATION

                      Sec.
                      40.1
                      Appropriations for loans or grants.
                      40.2
                      Working scholarships.
                      40.3
                      Applications.
                      40.4
                      Security.
                      40.5
                      Repayments.

                      Authority:
                      Sec. 11, 48 Stat. 986; 25 U.S.C. 471.

                      Source:
                      22 FR 10533, Dec. 24, 1957, unless otherwise noted. Redesignated at 47 FR 13327, Mar. 30, 1982.

                      § 40.1
                      Appropriations for loans or grants.

                      Funds appropriated by Congress for the education of Indians may be used for making educational loans and grants to aid students of one-fourth or more degree of Indian blood attending accredited institutions of higher education or other accredited schools offering vocational and technical training who reside within the exterior boundaries of Indian reservations under the jurisdiction of the Bureau of Indian Affairs or on trust or restricted lands under the jurisdiction of the Bureau of Indian Affairs. Such educational loans and grants may be made also to students of one-fourth or more degree of Indian blood who reside near the reservation when a denial of such loans or grants would have a direct effect upon Bureau programs within the reservation. After students meeting these eligibility requirements are taken care of, Indian students who do not meet the residency requirements but are otherwise eligible may be considered.
                      [33 FR 9708, July 4, 1968. Redesignated at 47 FR 13327, Mar. 30, 1982]

                      § 40.2
                      Working scholarships.
                      Working scholarships may be granted to Indians who wish to earn their board and room by part-time work at Federal boarding schools that are located near a college, trade, or vocational school.

                      § 40.3
                      Applications.
                      Applications for educational loans, grants, and working scholarships shall be submitted through the superintendent or officer in charge of the agency at which the applicant is enrolled in the manner prescribed by the Commissioner.

                      § 40.4
                      Security.
                      If a borrower or cosigner has security to offer for an educational loan it must be given in an amount adequate to protect the loan.

                      § 40.5
                      Repayments.
                      Repayment schedules for educational loans may provide not to exceed two years for repayment for each year in school.

                    Pt. 41
                    PART 41—GRANTS TO TRIBAL COLLEGES AND UNIVERSITIES AND DINÉ COLLEGE

                        Subpart A—Applicability and Definitions
                        Sec.
                        41.1
                        When does this subpart apply?
                        41.3
                        What definitions are needed?
                        41.5
                        How is ISC/FTE calculated?
                        41.7
                        What happens if false information is submitted?

                        Subpart B—Tribal Colleges and Universities
                        41.9
                        What is the purpose of this subpart?
                        41.11
                        Who is eligible for financial assistance under this subpart?
                        41.13
                        For what activities can financial assistance to Tribal colleges and universities be used?
                        41.15
                        What activities are prohibited?
                        41.17
                        What is the role of the Secretary of Education?
                        41.19
                        How can a Tribal college or university establish eligibility to receive a grant?
                        41.21
                        How can a Tribe appeal the results of an eligibility study?
                        41.23
                        Can a Tribal college or university request a second eligibility study?
                        41.25
                        How does the Tribal college or university apply for a grant?
                        41.27
                        When can the Tribal college or university expect a decision on its application?
                        41.29
                        How will a grant be awarded?
                        41.31
                        When will the Tribal college or university receive funding?
                        41.33
                        What if there isn't enough money to pay the full grant amount?
                        41.35
                        What will happen if the Tribal college or university doesn't receive its appropriate share?
                        41.37
                        Is the Tribal college or university eligible for other grants?
                        41.39
                        What reports does the Tribal college or university need to provide?
                        41.41
                        Can the Tribal college or university receive technical assistance?
                        41.43
                        How must the Tribal college or university administer its grant?
                        41.45
                        How does the Tribal college or university apply for programming grants?
                        41.47
                        Are Tribal colleges or universities eligible for endowments?

                        Subpart C—Diné College
                        41.49
                        What is the purpose of this subpart?
                        41.51
                        What is the scope of this subpart?
                        41.53
                        How does Diné College request financial assistance?
                        41.55
                        How are grant funds processed?
                        41.57
                        When will the application be reviewed?
                        41.59
                        When will the funds be paid?
                        41.61

                        Is Diné College eligible to receive other grants?

                        41.63
                        How can financial assistance be used?
                        41.65
                        What reports must be provided?
                        41.67
                        Can Diné College receive technical assistance?
                        41.69
                        How must Diné College administer its grant?
                        41.71
                        Can Diné College appeal an adverse decision under a grant agreement by the Director?

                      Authority:

                      Public Law 95-471, Oct. 17, 1978, 92 Stat. 1325; amended Public Law 98-192, Dec. 1, 1983, 97 Stat. 1335; Public Law 99-428, Sept. 30, 1986, 100 Stat. 982; Public Law 105-244, Oct. 7, 1998, 112 Stat. 1619; Public Law 110-315, Aug. 14, 2008, 122 Stat. 3460; 25 U.S.C. 1801 et seq.; Public Law 98-192, Dec. 15, 1971, 85 Stat. 646; and Public Law 110-315, Aug. 14, 2008, 122 Stat. 3468; 25 U.S.C. 640a et seq.

                      Source:
                      81 FR 38587, June 14, 2016, unless otherwise noted.

                      Subpart A—Applicability and Definitions

                        § 41.1
                        When does this subpart apply?
                        The provisions in this subpart A apply to subparts B and C.

                        § 41.3
                        What definitions are needed?
                        As used in this part:

                          Academic facilities mean structures suitable for use as:
                        (1) Classrooms, laboratories, libraries, and related facilities necessary or appropriate for instruction of students;
                        (2) Research facilities;
                        (3) Facilities for administration of educational or research programs;
                        (4) Dormitories or student services buildings; or
                        (5) Maintenance, storage, support, or utility facilities essential to the operation of the foregoing facilities.

                          Academic term means a semester, trimester, or other such period (not less than six weeks in duration) into which a Tribal college or university normally subdivides its academic year, but does not include a summer term.

                          Academic year means a twelve month period established by a Tribal college or university as the annual period for the operation of the Tribal college's or university's education programs.

                          Assistant Secretary means the Assistant Secretary—Indian Affairs of the Department of the Interior.

                          BIE means the Bureau of Indian Education.

                          College or university means an institution of higher education that is formally controlled, formally sanctioned, or chartered by the governing body of an Indian Tribe or Tribes. To qualify under this definition, the college or university must:
                        (1) Be the only institution recognized by the Department for the Tribe, excluding Diné College; and
                        (2) If under the control, sanction, or charter of more than one Tribe, be the only institution recognized by the Department for at least one Tribe that currently has no other formally controlled, formally sanctioned, or chartered college or university.

                          Department means the Department of the Interior.

                          Director means the Director of the Bureau of Indian Education.

                          Eligible continuing education units (CEUs) means non-degree credits that meet the criteria established by the International Association of Continuing Education and Training.

                          Full-time means registered for 12 or more credit hours for an academic term.

                          Indian Student Count (ISC) or Indian Full-Time Equivalent (FTE) means a number equal to the total number of Indian students enrolled at a Tribal college or university, determined according to the formula in § 41.5.

                          Indian student means a student who is a member of an Indian Tribe, or a biological child of a living or deceased member of an Indian Tribe. Documentation is required to verify eligibility as a biological child of a living or deceased member of an Indian Tribe, and may include birth certificate and marriage license; Tribal records of student's parent; Indian Health Service eligibility cards; other documentation necessary to authenticate a student as eligible to be counted as an Indian student under this definition.

                          Indian Tribe means an Indian Tribe, band, nation, pueblo, rancheria, or other organized group or community, including any Alaska Native Village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act, to be listed in the Federal Register
                          pursuant to 25 CFR 83.5(a) as recognized by and eligible to receive services from the Bureau of Indian Affairs.

                          Institution of higher education means an institution as defined by section 1001(a) of Title 20 of the United States Code, except that clause (2) of such section is not applicable and the reference to Secretary in clause (5)(A) of such section will be deemed to refer to the Secretary of the Interior.

                          National Indian organization means an organization which the Secretary finds to be nationally based, represents a substantial Indian constituency and has expertise in the fields of Tribal colleges and universities, and Indian higher education.

                          NCCA means the Navajo Community College Act of 1978, as amended (25 U.S.C. 640a et seq.).

                          Operating expenses of education programs means the obligations and expenditures of a Tribal college or university for postsecondary education, except for obligations and expenditures for acquisition or construction of academic facilities. Permissible expenditures may include:
                        (1) Administration;
                        (2) Instruction;
                        (3) Maintenance and repair of facilities; and
                        (4) Acquisition and upgrade of equipment, technological equipment, and other physical resources.

                          Part-time means registered for less than 12 credit hours for an academic term.

                          Satisfactory progress means satisfactory progress toward a degree or certificate as defined by the Tribal college or university.

                          Secretary, unless otherwise designated, means the Secretary of the Interior, or his/her duly authorized representative.

                          TCCUA means the Tribally Controlled Colleges and Universities Assistance Act of 1978, as amended (25 U.S.C. 1801 et seq.).

                          You or your means the Tribal college or university.

                        § 41.5
                        How is ISC/FTE calculated?
                        (a) ISC is calculated on the basis of eligible registrations of Indian students as of the conclusion of the third week of each academic term.
                        (b) To calculate ISC for an academic term, begin by adding all credit hours of full-time Indian students and all credit hours of part-time Indian students, including full-time and part-time distance education Indian students, who are registered at the conclusion of the third week of the academic term.
                        (c) Credit hours earned by Indian students who have not obtained a high school degree or its equivalent may be added if you have established criteria for the admission of such students on the basis of their ability to benefit from the education or training offered. You will be presumed to have established such criteria if your admission procedures include counseling or testing that measures students' aptitude to successfully complete the courses in which they enroll.
                        (d) No credit hours earned by an Indian student attending high school and applied towards the student's high school degree or its equivalent may be counted toward computation of ISC; and no credit hours earned by an Indian student not making satisfactory progress toward a degree or certificate may count toward the ISC.
                        (e) If ISC is being calculated for a fall term, add to the calculation in paragraph (b) of this section any credits earned in classes offered during the preceding summer term.
                        (f) Add to the calculation in paragraph (b) of this section those credits being earned in an eligible continuing education program at the conclusion of the third week of the academic term. Determine the number of those credits as follows:
                        (1) For institutions on a semester system: One credit for every 15 contact hours and

                        (2) For institutions on a quarter system: One credit for every 10 contact hours of participation in an organized continuing education experience under responsible sponsorship, capable direction, and qualified instruction, as described in the criteria established by the International Association for Continuing Education and Training. Limit the number of calculated eligible continuing education credits to 10 percent of your ISC.

                        (g) Divide by 12 the final calculation in paragraph (f) of this section. The formula for the full calculation is expressed mathematically as:

                        ISC = (FTCR + PTCR + SCR + CECR)/12

                        (h) In the formula in paragraph (g) of this section, the abbreviations used have the following meanings:
                        (1) FTCR = the number of credit hours carried by full-time Indian students (students carrying 12 or more credit hours at the end of the third week of each academic term); and
                        (2) PTCR = the number of credit hours carried by part-time Indian students (students carrying fewer than 12 credit hours at the end of the third week of each academic term).
                        (3) SCR = in a fall term, the number of credit hours earned during the preceding summer term.
                        (4) CECR = the number of credit hours being earned in an eligible continuing education program at the conclusion of the third week of the academic term, in accordance with paragraph (f)(2) of this section.

                        § 41.7
                        What happens if false information is submitted?
                        Persons submitting or causing to be submitted any false information in connection with any application, report, or other document under this part may be subject to criminal prosecution under provisions such as sections 371 or 1001 of Title 18, U.S. Code.

                      Subpart B—Tribal Colleges and Universities

                        § 41.9
                        What is the purpose of this subpart?
                        This subpart prescribes procedures for providing financial and technical assistance under the TCCUA for the operation and improvement of Tribal colleges and universities and advancement of educational opportunities for Indian students. This subpart does not apply to Diné College.

                        § 41.11
                        Who is eligible for financial assistance under this subpart?
                        (a) A Tribal college or university is eligible for financial assistance under this subpart only if it:
                        (1) Is governed by a board of directors or board of trustees, a majority of whom are Indians;
                        (2) Demonstrates adherence to stated goals, a philosophy, or a plan of operation directed to meet the needs of Indians;
                        (3) Has a student body that is more than 50 percent Indian (unless it has been in operation for less than one year);
                        (4) Is either:
                        (i) Accredited by a nationally recognized accrediting agency or association determined by the Secretary of Education to be a reliable authority with regard to the quality of training offered; or
                        (ii) Is making reasonable progress toward accreditation according to such agency or association;
                        (5) Has received a positive determination after completion of an eligibility study; and
                        (6) Complies with the requirements of § 41.19.
                        (b) Priority in grants is given to institutions that were in operation on October 17, 1978, and that have a history of service to Indian people.

                        § 41.13
                        For what activities can financial assistance to Tribal colleges and universities be used?
                        Tribal colleges and universities may use financial assistance under this subpart to defray expenditures for academic, educational, and administrative purposes and for the operation and maintenance of the college or university.

                        § 41.15
                        What activities are prohibited?
                        Tribal colleges and universities must not use financial assistance awarded under this subpart in connection with religious worship or sectarian instruction. However, nothing in this subpart will be construed as barring instruction or practice in comparative religions or cultures or in languages of Indian Tribes.

                        § 41.17
                        What is the role of the Secretary of Education?

                        (a) The Secretary may enter into an agreement with the Secretary of Education to obtain assistance to:

                        (1) Develop plans, procedures, and criteria for eligibility studies required under this subpart; and
                        (2) Conduct such studies.
                        (b) BIE must consult with the Secretary of Education to determine the reasonable number of students required to support a Tribal college or university.

                        § 41.19
                        How can a Tribal college or university establish eligibility to receive a grant?
                        (a) Before a Tribal college or university can apply for an initial grant under this part, the governing body of one or more Indian Tribes must request a determination of eligibility on the college's or university's behalf.
                        (b) Within 30 days of receiving a resolution or other duly authorized request from the governing body of one or more Indian Tribes, BIE will initiate an eligibility study to determine whether there is justification to encourage and maintain a Tribal college or university.
                        (c) The eligibility study will analyze the following factors:
                        (1) Financial feasibility based upon reasonable potential enrollment; considering:
                        (i) Tribal, linguistics, or cultural differences;
                        (ii) Isolation;
                        (iii) Presence of alternate educational sources;
                        (iv) Proposed curriculum;
                        (2) Levels of Tribal matriculation in and graduation from postsecondary educational institutions; and
                        (3) The benefits of continued and expanded educational opportunities for Indian students.
                        (d) Based upon results of the study, the Director will send the Tribe a written determination of eligibility.
                        (e) The Secretary and the BIE, to the extent practicable, will consult with national Indian organizations and with Tribal governments chartering the colleges or universities being considered.

                        § 41.21
                        How can a Tribe appeal the results of an eligibility study?
                        If a Tribe receives a negative determination under § 41.19(d), it may submit an appeal to the Assistant Secretary within 45 days.
                        (a) Following the timely filing of a Tribe's notice of appeal, the Tribal college or university and the Tribe have a right to a formal review of the eligibility study, including a hearing upon reasonable notice within 60 days. At the hearing, the Tribal college or university and the appealing Tribe may present additional evidence or arguments to justify eligibility.
                        (b) Within 45 days of the hearing, the Assistant Secretary will issue a written ruling confirming, modifying, or reversing the original determination. The ruling will be final and BIE will mail or deliver it within one week of its issuance.
                        (c) If the Assistant Secretary does not reverse the original negative determination, the ruling will specify the grounds for the decision and state the manner in which the determination relates to each of the factors in § 41.11.

                        § 41.23
                        Can a Tribal college or university request a second eligibility study?
                        If a Tribe is not successful in its appeal under § 41.21, it can request another eligibility study 12 months or more after the date of the negative determination.

                        § 41.25
                        How does a Tribal college or university apply for a grant?
                        (a) If the Tribal college or university receives a positive determination of the eligibility study under § 41.19(d), it is entitled to apply for financial assistance under this subpart.

                        (b) To be considered for assistance, a Tribal college or university must submit an application by or before June 1st of the year preceding the academic year for which the Tribal college or university is requesting assistance. The application must contain the following:

                            Required information
                            Required details

                            (1) Identifying information
                            (i) Name and address of the Tribal college or university.(ii) Names of the governing board members, and the number of its members who are Indian.
                              (iii) Name and address of the Tribe or Tribes that control or have sanctioned or chartered the Tribal college or university.

                            (2) Eligibility verification
                            The date on which an eligibility determination was received.

                            (3) Curriculum materials
                            (i) A statement of goals, philosophy, or plan of operation demonstrating how the education program is designed to meet the needs of Indians.(ii) A curriculum, which may be in the form of a college catalog or similar publication, or information located on the Tribal college or university Web site.

                            (4) Financial information
                            (i) A proposed budget showing total expected education program operating expenses and expected revenues from all sources for the academic year to which the information applies.(ii) A description of record-keeping procedures used to track fund expenditures and to audit and monitor funded programs.

                            (5) Enrollment information
                            (i) If the Tribal college or university has been in operation for more than one year, a statement of the total number of ISC (FTE Indian students) and the total number of all FTE students. Grantees may exclude high school students for the purpose of calculating the total number of FTE students.(ii) If the Tribal college or university has not yet begun operations, or has been in operation for less than one year, a statement of expected enrollment, including the total number of FTE students and the ISC (FTE Indian students) and may also require verification of the number of registered students after operations have started.

                            (6) Assurances and requests
                            (i) Assurance that the Tribal college or university will not deny admission to any Indian student because that student is, or is not, a member of a specific Tribe.(ii) Assurance that the Tribal college or university will comply with the requirements in § 41.39 of this subpart.
                              (iii) A request and justification for a specific waiver of any requirement of 25 CFR part 276 which a Tribal college or university believe to be inappropriate.

                            (7) Certification
                            Certification by the chief executive that the information on the application is complete and correct.

                        (c) Material submitted in a Tribal college's or university's initial successful grant application will be retained by the BIE. A Tribal college or university submitting a subsequent application for a grant, must either confirm the information previously submitted remains accurate or submit updated information, as necessary.

                        § 41.27
                        When can the Tribal college or university expect a decision on its application?
                        Within 45 days of receiving an application, the Director will notify the Tribal college or university in writing whether or not the application has been approved.
                        (a) If the Director approves the application, written notice will explain when the BIE will send the Tribal college or university a grant agreement under § 41.19.
                        (b) If the Director disapproves the application, written notice will include:
                        (1) The reasons for disapproval; and
                        (2) A statement advising the Tribal college or university of the right to amend or supplement the Tribal college's or university's application within 45 days.
                        (c) The Tribal college or university may appeal a disapproval or a failure to act within 45 days of receipt following the procedures in § 41.21.

                        § 41.29
                        How will a grant be awarded?
                        If the Director approves the Tribal college's or university's application, the BIE will send the Tribal college or university a grant agreement that incorporates the Tribal college's or university's application and the provisions required by § 41.25. The Tribal college or university grant will be for the fiscal year starting after the approval date of the application.
                        (a) The BIE will generally calculate the amount of the Tribal college or university grant using the following procedure:
                        (1) Begin with a base amount of $8,000 (adjusted annually for inflation);
                        (2) Multiply the base amount by the number of FTE Indian students in attendance during each academic term; and
                        (3) Divide the resulting sum by the number of academic terms in the academic year.

                        (b) All grants under this section are subject to availability of appropriations.

                        (c) If there are insufficient funds to pay the amount calculated under paragraph (a) of this section, BIE will reduce the grant amount awarded to each eligible Tribal college or university on a pro rata basis.

                        § 41.31
                        When will the Tribal college or university receive funding?
                        (a) BIE will authorize payments equal to 95 percent of funds available for allotment by either July 1 or within 14 days after appropriations become available, with the remainder of the payment made no later than September 30.
                        (b) BIE will not commingle funds appropriated for grants under this subpart with other funds expended by the BIE.

                        § 41.33
                        What if there isn't enough money to pay the full grant amount?
                        This section applies if BIE has to reduce payments under § 41.29(c).
                        (a) If additional funds have not been appropriated to pay the full amount of grants under this part on or before June 1st of the year, the BIE will notify all grant recipients in writing. The Tribal college or university must submit a written report to the BIE on or before July 1st explaining how much of the grant money remains unspent.
                        (b) After receiving the Tribal college's or university's report under paragraph (a) of this section, BIE will:
                        (1) Reallocate the unspent funds using the formula in § 41.29 in proportion to the amount of assistance to which each grant recipient is entitled but has not received;
                        (2) Ensure that no Tribal college or university will receive more than the total annual cost of its education programs;
                        (3) Collect unspent funds as necessary for redistribution to other grantees under this section; and
                        (4) Make reallocation payments on or before August 1st of the academic year.

                        § 41.35
                        What will happen if the Tribal college or university doesn't receive its appropriate share?
                        (a) If the BIE determines the Tribal college or university has received financial assistance to which the Tribal college or university was not entitled, BIE will:
                        (1) Promptly notify the Tribal college or university; and
                        (2) Reduce the amount of the Tribal college's or university's payments under this subpart to compensate for any overpayments or otherwise attempt to recover the overpayments.
                        (b) If a Tribal college or university has received less financial assistance than the amount to which the Tribal college or university was entitled, the Tribal college or university should promptly notify the BIE. If the BIE confirms the miscalculation, BIE will adjust the amount of the Tribal college's or university's payments for the same or subsequent academic years to compensate for the underpayments. This adjustment will come from the Department's general funds and not from future appropriated funds.

                        § 41.37
                        Is the Tribal college or university eligible for other grants?
                        Yes. Eligibility for grants under this subpart does not bar a Tribal college or university from receiving financial assistance under any other Federal program.

                        § 41.39
                        What reports does the Tribal college or university need to provide?
                        (a) The Tribal college or university must provide the BIE, on or before December 1 of each year, a report that includes:
                        (1) An accounting of the amounts and purposes for which the Tribal college or university spent assistance received under this part during the preceding academic year;
                        (2) An accounting of the annual cost of the Tribal college's or university's education programs from all sources for the academic year; and
                        (3) A final performance report based upon the criteria the Tribal college's or university's goals, philosophy, or plan of operation.
                        (b) The Tribal college or university must report to the BIE their FTE Indian student enrollment for each academic term of the academic year within three (3) weeks of the date the Tribal college or university makes the FTE calculation.

                        § 41.41
                        Can the Tribal college or university receive technical assistance?
                        (a) If a Tribal college or university sends the BIE a written request for technical assistance, BIE will respond within 30 days.
                        (b) The BIE will provide technical assistance either directly or through annual contract to a national Indian organization that the Tribal college or university designates.
                        (c) Technical assistance may include consulting services for developing programs, plans, and eligibility studies and accounting, and other services or technical advice.

                        § 41.43
                        How must the Tribal college or university administer its grant?
                        In administering any grant provided under this subpart, a Tribal college or university must:
                        (a) Provide services or assistance under this subpart in a fair and uniform manner;
                        (b) Not deny admission to any Indian student because they either are, or are not, a member of a specific Indian Tribe; and
                        (c) Comply with part 276 of this chapter, unless the BIE expressly waives specific inappropriate provisions of part 276 in response to a Tribal college or university request and justification for a waiver.

                        § 41.45
                        How does the Tribal college or university apply for programming grants?
                        (a) Tribes and Tribal entities may submit a written request to the BIE for a grant to conduct planning activities for the purpose of developing proposals for the establishment of Tribally controlled colleges and universities, or to determine the need and potential for the establishment of such colleges and universities. BIE will provide written notice to the Tribal college or university of its determination on the grant request within 30 days.
                        (b) Subject to the availability of appropriations, BIE may provide such grants to up to five Tribes and Tribal entities in the amount of $15,000 each.

                        § 41.47
                        Are Tribal colleges or universities eligible for endowments?
                        Yes. Tribal colleges and universities are eligible for endowments under a signed agreement between the Tribal college and university and the Secretary as described in 25 U.S.C. 1832. Endowments must be invested in a trust fund and the Tribal college or university may only use the interest deposited for the purpose of defraying expenses associated with the operation of the Tribal college or university (25 U.S.C. 1833).

                      Subpart C—Diné College

                        § 41.49
                        What is the purpose of this subpart?
                        The purpose of this subpart is to assist the Navajo Nation in providing education to the members of the Tribe and other qualified applicants through a community college, established by that Tribe, known as Diné College. To that end, the regulations in this subpart prescribe procedures for providing financial and technical assistance for Diné College under the NCCA.

                        § 41.51
                        What is the scope of this subpart?
                        The regulations in this subpart are applicable to the provision of financial assistance to Diné College pursuant to NCCA, title II of the TCCUA.

                        § 41.53
                        How does Diné College request financial assistance?
                        To request financial assistance, Diné College must submit an application. The application must be certified by the Diné College chief executive officer and include:
                        (a) A statement of Indian student enrollment and total FTE enrollment for the preceding academic year;
                        (b) A curriculum description, which may be in the form of a college catalog or like publication or information located on the Diné College Web site; and
                        (c) A proposed budget showing total expected operating expenses of educational programs and expected revenue from all sources for the grant year.

                        § 41.55
                        How are grant funds processed?
                        (a) BIE will identify the budget request for Diné College separately in its annual budget justification.
                        (b) BIE will not commingle funds appropriated for grants under this subpart with appropriations that are historically expended by the Bureau of Indian Affairs for programs and projects normally provided on the Navajo Reservation for Navajo beneficiaries.

                        § 41.57
                        When will the application be reviewed?
                        Within 45 days of receiving the application the BIE will send a grant agreement for signature by the Diné College president or his or her designee in an amount determined under § 41.29(a). The grant agreement will incorporate the grant application and include the provisions required by § 41.25.

                        § 41.59
                        When will grant funds be paid?
                        (a) Initial grant funds will be paid in an advance installment of not less than 40 percent of the funds available for allotment by October 1st.
                        (b) The remainder of the grant funds will be paid by July 1st after the BIE adjusts the amount to reflect any overpayments or underpayments made in the first disbursement.

                        § 41.61
                        Is Diné College eligible to receive other grants?
                        Yes. Eligibility for grants under this subpart does not bar Diné College from receiving financial assistance under any other Federal program.

                        § 41.63
                        How can financial assistance be used?
                        (a) The Diné College must use financial assistance under this subpart only for operation and maintenance, including educations programs, annual capital expenditures, major capital improvements, mandatory payments, supplemental student services, and improvement and expansion, as described in 25 U.S.C. 640c-1(b)(1);
                        (b) The Diné College must not use financial assistance under this subpart for religious worship or sectarian instruction. However, this subpart does not prohibit instruction about religions, cultures or Indian Tribal languages.

                        § 41.65
                        What reports must be provided?
                        (a) Diné College must submit on or before December 1st of each year a report that includes:
                        (1) An accounting of the amounts and purposes for which Diné College spent the financial assistance during the preceding academic year;
                        (2) The annual cost of Diné College education programs from all sources for the academic year; and
                        (3) A final report of Diné College's performance based upon the criteria in its stated goals, philosophy, or plan of operation.
                        (b) Diné College must report its FTE Indian student enrollment for each academic term within six weeks of the date it makes the FTE calculation.

                        § 41.67
                        Can Diné College receive technical assistance?
                        Technical assistance will be provided to Diné College as noted in § 41.41.

                        § 41.69
                        How must Diné College administer its grant?
                        In administering any grant provided under this subpart, Diné College must:
                        (a) Provide all services or assistance under this subpart in a fair and uniform manner;
                        (b) Not deny admission to any Indian student because the student is, or is not, a member of a specific Indian Tribe; and
                        (c) Comply with part 276 of this chapter, unless the BIE expressly waives specific inappropriate provisions of part 276 in response to Diné College's request and its justification for a waiver.

                        § 41.71
                        Can Diné College appeal an adverse decision under a grant agreement by the Director?

                        Diné College has the right to appeal to the Assistant Secretary by filing a written notice of appeal within 45 days of the adverse decision. Within 45 days after receiving notice of appeal, the Assistant Secretary will conduct a formal hearing at which time the Diné College may present evidence and argument to support its appeal. Within 45 days of the hearing, the Assistant Secretary will issue a written ruling on the appeal confirming, modifying or reversing the decision of the Director. If the ruling does not reverse the adverse decision, the Assistant Secretary will state in detail the basis of his/her ruling. The ruling of the Assistant Secretary on an appeal will be final for the Department.

                    Pt. 42
                    PART 42—STUDENT RIGHTS

                      Sec.
                      42.1
                      What general principles apply to this part?
                      42.2
                      What rights do individual students have?
                      42.3
                      How should a school address alleged violations of school policies?
                      42.4
                      What are alternative dispute resolution processes?
                      42.5
                      When can a school use ADR processes to address an alleged violation?
                      42.6
                      When does due process require a formal disciplinary hearing?
                      42.7
                      What does due process in a formal disciplinary proceeding include?
                      42.8
                      What are a student's due process rights in a formal disciplinary proceeding?
                      42.9
                      What are victims' rights in formal disciplinary proceedings?
                      42.10
                      How must the school communicate individual student rights to students, parents or guardians, and staff?
                      42.11
                      Information collection.

                      Authority:
                      5 U.S.C. 301, Pub. L. 107-110, 115 Stat. 1425.

                      Source:
                      70 FR 22218, Apr. 28, 2005, unless otherwise noted.

                      § 42.1
                      What general principles apply to this part?
                      (a) This part applies to every Bureau-funded school. The regulations in this part govern student rights and due process procedures in disciplinary proceedings in all Bureau-funded schools. To comply with this part, each school must:
                      (1) Respect the constitutional, statutory, civil and human rights of individual students; and
                      (2) Respect the role of Tribal judicial systems where appropriate.
                      (b) All student rights, due process procedures, and educational practices should, where appropriate or possible, afford students consideration of and rights equal to the student's traditional Native customs and practices.

                      § 42.2
                      What rights do individual students have?
                      Individual students at Bureau-funded schools have, and must be accorded, at least the following rights:
                      (a) The right to an education that may take into consideration Native American or Alaska Native values;
                      (b) The right to an education that incorporates applicable Federal and Tribal constitutional and statutory protections for individuals; and
                      (c) The right to due process in instances of disciplinary actions.

                      § 42.3
                      How should a school address alleged violations of school policies?
                      (a) In addressing alleged violations of school policies, each school must consider, to the extent appropriate, the reintegration of the student into the school community.
                      (b) The school may address a student violation using alternative dispute resolution (ADR) processes or the formal disciplinary process.
                      (1) When appropriate, the school should first attempt to use the ADR processes described in § 42.4 that may allow resolution of the alleged violation without recourse to punitive action.
                      (2) Where ADR processes do not resolve matters or cannot be used, the school must address the alleged violation through a formal disciplinary proceeding under § 42.7 consistent with the due process rights described in § 42.7.

                      § 42.4
                      What are alternative dispute resolution processes?
                      Alternative dispute resolution (ADR) processes are formal or informal processes that may allow resolution of the violation without recourse to punitive action.
                      (a) ADR processes may:
                      (1) Include peer adjudication, mediation, and conciliation; and
                      (2) Involve appropriate customs and practices of the Indian Tribes or Alaska Native Villages to the extent that these practices are readily identifiable.
                      (b) For further information on ADR processes and how to use them, contact the Office of Collaborative Action and Dispute Resolution by:
                      (1) Sending an e-mail to: cadr@ios.doi.gov; or

                      (2) Writing to: Office of Collaborative Action and Dispute Resolution, Department of the Interior, 1849 C Street NW., MS 5258, Washington, DC 20240.

                      § 42.5
                      When can a school use ADR processes to address an alleged violation?
                      (a) The school may address an alleged violation through the ADR processes described in § 42.4, unless one of the conditions in paragraph (b) of this section applies.
                      (b) The school must not use ADR processes in any of the following circumstances:
                      (1) Where the Act requires immediate expulsion (“zero tolerance” laws);
                      (2) For a special education disciplinary proceeding where use of ADR would not be compatible with the Individuals with Disabilities Education Act (Pub. L. 105-17); or
                      (3) When all parties do not agree to using alternative dispute resolution processes.
                      (c) If ADR processes do not resolve matters or cannot be used, the school must address alleged violations through the formal disciplinary proceeding described in § 42.8.

                      § 42.6
                      When does due process require a formal disciplinary hearing?
                      Unless local school policies and procedures provide for less, a formal disciplinary hearing is required before a suspension in excess of 10 days or expulsion.

                      § 42.7
                      What does due process in a formal disciplinary proceeding include?
                      Due process must include written notice of the charges and a fair and impartial hearing as required by this section.
                      (a) The school must give the student written notice of charges within a reasonable time before the hearing required by paragraph (b) of this section. Notice of the charges includes:
                      (1) A copy of the school policy allegedly violated;
                      (2) The facts related to the alleged violation;
                      (3) Information about any statements that the school has received relating to the charge and instructions on how to obtain copies of those statements; and
                      (4) Information regarding those parts of the student's record that the school will consider in rendering a disciplinary decision.
                      (b) The school must hold a fair and impartial hearing before imposing disciplinary action, except under the following circumstances:
                      (1) If the Act requires immediate removal (such as, if the student brought a firearm to school) or if there is some other statutory basis for removal;
                      (2) In an emergency situation that seriously and immediately endangers the health or safety of the student or others; or
                      (3) If the student (or the student's parent or guardian if the student is less than 18 years old) chooses to waive entitlement to a hearing.
                      (c) In an emergency situation under paragraph (b)(2) of this section, the school:
                      (1) May temporarily remove the student;
                      (2) Must immediately document for the record the facts giving rise to the emergency; and
                      (3) Must afford the student a hearing that follows due process, as set forth in this part, within ten days.

                      § 42.8
                      What are a student's due process rights in a formal disciplinary proceeding?
                      A student has the following due process rights in a formal disciplinary proceeding:
                      (a) The right to have present at the hearing the student's parents or guardians (or their designee);
                      (b) The right to be represented by counsel (legal counsel will not be paid for by the Bureau-funded school or the Secretary);
                      (c) The right to produce, and have produced, witnesses on the student's behalf and to confront and examine all witnesses;
                      (d) The right to the record of the disciplinary action, including written findings of fact and conclusions;
                      (e) The right to administrative review and appeal under school policy;
                      (f) The right not to be compelled to testify against himself or herself; and

                      (g) The right to have an allegation of misconduct and related information expunged from the student's school record if the student is found not guilty of the charges.

                      § 42.9
                      What are victims' rights in formal disciplinary proceedings?
                      In formal disciplinary proceedings, each school must consider victims' rights when appropriate.
                      (a) The victim's rights may include a right to:
                      (1) Participate in disciplinary proceedings either in writing or in person;
                      (2) Provide a statement concerning the impact of the incident on the victim; and
                      (3) Have the outcome explained to the victim and to his or her parents or guardian by a school official, consistent with confidentiality.
                      (b) For the purposes of this part, the victim is the actual victim, not his or her parents or guardians.

                      § 42.10
                      How must the school communicate individual student rights to students, parents or guardians, and staff?
                      Each school must:
                      (a) Develop a student handbook that includes local school policies, definitions of suspension, expulsion, zero tolerance, and other appropriate terms, and a copy of the regulations in this part;
                      (b) Provide all school staff a current and updated copy of student rights and responsibilities before the first day of each school year;
                      (c) Provide all students and their parents or guardians a current and updated copy of student rights and responsibilities every school year upon enrollment; and
                      (d) Require students, school staff, and to the extent possible, parents and guardians, to confirm in writing that they have received a copy and understand the student rights and responsibilities.

                      § 42.11
                      Information collection.

                      Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This part in §§ 42.6, 42.7, and 42.9 contains collections of information subject to the PRA. These collections have been approved by OMB under control number 1076-0163.

                    Pt. 43
                    PART 43—MAINTENANCE AND CONTROL OF STUDENT RECORDS IN BUREAU SCHOOLS

                      Sec.
                      43.1
                      Purpose and scope.
                      43.2
                      Definitions.
                      43.3
                      Student rights.
                      43.4
                      Annual notification of rights.
                      43.5
                      Access to records.
                      43.6
                      Limitations on access.
                      43.7
                      Access rights.
                      43.8
                      Destruction of records.
                      43.9
                      Procedures for granting access.
                      43.10
                      Right to challenge.
                      43.11
                      Informal proceedings.
                      43.12
                      Right to a hearing.
                      43.13
                      Right of appeal.
                      43.14
                      Consent.
                      43.15
                      Content of consent.
                      43.16
                      Copy to be provided to parents or eligible students.
                      43.17
                      Release of information for health or safety emergencies.
                      43.18
                      Record of access.
                      43.19
                      Transfer of information by third parties.
                      43.20
                      Directory information.
                      43.21
                      Standards for collection and maintenance of student records.
                      43.22
                      Assuring integrity of records.
                      43.23
                      Conduct of employees.

                      Authority:
                      35 Stat. 72 (25 U.S.C. 295); Pub. L. 93-579, 88 Stat. 1896; Sec. 438, Pub. L. 93-380, as amended; Pub. L. 94-142.

                      Source:
                      43 FR 52024, Nov. 8, 1978, unless otherwise noted. Redesignated at 47 FR 13327, Mar. 30, 1982.

                      § 43.1
                      Purpose and scope.
                      This part contains the regulations of the Bureau of Indian Affairs, U.S. Department of the Interior, governing the maintenance, control, and accessibility of student records. This part will apply to all educational institutions under the jurisdiction of the Bureau of Indian Affairs, whether operated under contract or otherwise.

                      § 43.2
                      Definitions.
                      As used in this part:

                      (a) Assistant Secretary means the Assistant Secretary—Indian Affairs, Department of the Interior.
                      (b) Educational institution means any institution operated under the jurisdiction of the Bureau of Indian Affairs either directly or by contract, including, but not limited to, schools or dormitories from which Indian students attend public schools.
                      (c) Eligible student means a student who has become 18 years of age or is attending an institution of post-secondary education. When a student becomes an eligible student, the permission required of and the rights given to the parents of the student shall thereafter only be required of and given to the student.
                      (d) Parent means a natural parent, an adoptive parent, the legal guardian, or a legal custodian of a student. (Where the natural parents are unavailable, a required written parental consent may be obtained from the person who has assumed custody of the student.) For purposes of the Education of All Handicapped Children Act, the term parent also includes a surrogate as referred to in 20 U.S.C. 1415(b)(1)(B).
                      (e) Student records means those records, files, documents, and other materials which contain information directly related to a student and which are maintained by an educational institution, or by a person acting for that institution. The term does not include:
                      (1) Records of any educational personnel which are in the sole possession of the maker and which are not accessible or revealed to any other person except a substitute.
                      (2) Records made and maintained in the normal course of business which relate exclusively to persons who are employed in an educational institution but do not attend that institution.
                      (3) Directory information as given in § 43.20.
                      (4) Records on a student who is 18 years of age or older, or is attending an institution of post-secondary education, which are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in his professional or paraprofessional capacity, or assisting in that capacity, and which are made, maintained, or used only in connection with the provision of treatment to the student, and are not available to anyone other than persons providing such treatment, except that such records can be personally reviewed by a physician or other appropriate professional of the student's choice.

                      § 43.3
                      Student rights.
                      The regulations in this part do not prevent educational institutions from giving noneligible students rights similar to those given to parents and eligible students. Educational institutions may do so at their discretion.

                      § 43.4
                      Annual notification of rights.
                      (a) Each educational institution to which this part applies and which maintains records on students shall inform parents or eligible students of the rights given them by this part.
                      (b) In meeting the requirement in paragraph (a) of this section the educational institution shall give notice to parents and eligible students at least annually of the following:
                      (1) The types of education records and information contained in them which are directly related to students and maintained by the institution.
                      (2) The name and position of the official responsible for maintaining each type of record, the persons who have access to those records, and the purpose for which they have access.
                      (3) The policies of the institution for reviewing and expunging those records.
                      (4) The procedures established by the institution under § 43.5.
                      (5) The procedures for challenging the content of education records including those in § 43.10.
                      (6) The cost, if any, which will be charged to the parent or eligible student for reproducing copies of records under § 43.5.
                      (7) The categories of information which the institution has designated as “directory information” under § 43.20.
                      (c) The notice given to a parent or eligible student under this section shall be in a language considered by the institution to be understandable by the parent or eligible student.

                      § 43.5
                      Access to records.
                      Educational institutions shall give parents of students or eligible students, who are or have been in attendance at the institutions, access to student records, except as stated in § 43.6.

                      § 43.6
                      Limitations on access.
                      Educational institutions are not required to make available to students the following materials:
                      (a) Financial records of the parents of the student or any information contained in those records.
                      (b) Confidential letters and statements of recommendations, which were placed in any student's record prior to January 1, 1975, and which are not used for purposes other than those for which they were specifically intended.

                      (c) Those records listed in § 43.2(e) which are exempt from the definition of student records.

                      § 43.7
                      Access rights.
                      The right of access specified in § 43.5 shall include:
                      (a) The right to obtain a list of the types of student records which are maintained by the institution.
                      (b) The right to inspect and review the content of those records.
                      (c) The right to obtain copies of those records, the cost, if any, not to exceed the actual cost to the educational institution of reproducing the copies.
                      (d) The right to a response from the institution to reasonable requests for explanations and interpretations of those records.
                      (e) The right to an opportunity for a hearing to challenge the content of records.
                      (f) If any material or document in the record of a student includes information on more than one student, the right to inspect and review only that portion of such material or document as relates to that particular student or to be informed of the specific information contained in such part of such materials.

                      § 43.8
                      Destruction of records.
                      This part does not prevent educational institutions from destroying any records, if not otherwise prevented by law. However, access shall be granted under § 43.5 before destroying student records where the parent or eligible student has requested access. Only records which are no longer relevant or necessary may be destroyed, subject to § 43.23(c).

                      § 43.9
                      Procedures for granting access.
                      Each educational institution shall establish appropriate procedures for granting a request by parents for access to the records of their children, or by eligible students for access to their own records within a reasonable period of time. In no case shall access be withheld more than forty-five (45) days after the request has been made.

                      § 43.10
                      Right to challenge.
                      Each educational institution shall give parents of students and eligible students, who are or have been in attendance at the institution, an opportunity to challenge the content of the student's records to:
                      (a) Insure that the records are not inaccurate, misleading, or otherwise violating the privacy or other rights of students.
                      (b) Provide an opportunity for correcting or deleting any inaccurate, misleading, or otherwise inappropriate data in the record.
                      (c) Insert into such records a written comment by the parents or eligible students pertaining to the content of such records.

                      § 43.11
                      Informal proceedings.
                      Educational institutions may attempt to resolve differences with the parent of a student or the eligible student regarding the content of the student's records through informal meetings and discussions with the parent or eligible student.

                      § 43.12
                      Right to a hearing.
                      Upon the request of the educational institution, the parent, or eligible student, a hearing shall be conducted under the procedures adopted and published by the institution. Such procedures shall include at least the following elements:

                      (a) The hearing shall be conducted and decided within a reasonable period of time following the request for the hearing.

                      (b) The hearing shall be informal and a verbatim record of proceedings will not be required. Interpreters will be utilized when necessary.
                      (c) The hearing shall be conducted by an institutional official or other party who does not have a direct interest in the outcome of the hearing.
                      (d) The parents or eligible student shall be given a full and fair opportunity to present evidence relevant to the issues raised under § 43.10.
                      (e) Within a reasonable period of time after the hearing ends, the hearing official shall make his recommendation in writing to the head of the educational institution. Within 20 days after receipt of the recommendation, the head of the institution shall issue his decision in writing to the parent or eligible student.

                      § 43.13
                      Right of appeal.
                      If any parent or eligible student is adversely affected by the decision of the head of the institution, that party shall have appeal rights as given in 25 CFR part 2. However, each official decision shall be issued within 30 days from receipt of the appeal.

                      § 43.14
                      Consent.
                      Educational institutions shall not permit access to or the release of student records or personally identifiable information contained in them, other than directory information of students, without the written consent of the parents or of an eligible student, to any party other than the following:
                      (a) Local school officials, including teachers within the educational institution, who have been determined by the institution to have legitimate educational interests in the records.
                      (b) Officials of other schools or school systems at which a student is interested in enrolling. The student or parent must be notified of such release except in cases involving Bureau of Indian Affairs schools. All Bureau of Indian Affairs schools are considered to be components of one school system whether operated under contract or otherwise.
                      (c) Persons having official involvement with a student's application for or grant of financial aid.
                      (d) Parents of a dependent student as defined in section 152 of the Internal Revenue Code of 1954, as amended.
                      (e) Accreditation agencies in order to carry out their accrediting functions.
                      (f) U.S. Office of Education officials and other governmental education officials when deemed necessary by the institution to carry out their official functions.
                      (g) An education testing center or similar institution as a part of its validation research which has been authorized by the school.
                      (h) In an emergency, any person to whom the information is necessary in the discretion of the school's administration in order to protect the student's health and safety, subject to § 43.17.
                      (i) Indian groups, contractors, grantees, professional social service organizations and personnel performing professional services, when necessary to carry out an official function authorized by the Bureau of Indian Affairs.
                      (j) Pursuant to the order of a court of competent jurisdiction; however, the parent or eligible student must be notified of such order in advance of compliance therewith by the educational institution.

                      § 43.15
                      Content of consent.
                      The consent of a parent or eligible student requested under this part for the release of student records shall be in writing, signed and dated by the person giving the consent. The consent shall include:
                      (a) A specification of the records to be released.
                      (b) The reasons for release.
                      (c) The names of the parties to whom the records will be released.

                      § 43.16
                      Copy to be provided to parents or eligible students.
                      Where the consent of a parent or eligible student is required under this part for the release of student records, a copy of the records to be released shall be provided on request to:
                      (a) The student's parents or the eligible student.
                      (b) The student who is not an eligible student, if desired by the parents.

                      § 43.17
                      Release of information for health or safety emergencies.
                      (a) Educational institutions may release information from student records to appropriate persons in an emergency if the information is necessary to protect the health or safety of a student or other person. The factors to be used in determining whether records may be released under this section include the following:
                      (1) The seriousness of the threat to the health or safety of the student or other persons.
                      (2) The need for those records to meet the emergency.
                      (3) Whether the persons to whom the records are released are in a position to deal with the emergency.
                      (4) The extent to which time is of the essence in dealing with the emergency.

                      § 43.18
                      Record of access.
                      (a) Each educational institution shall maintain a record kept with the student records of each student, which will indicate all parties other than those specified in § 43.14 which have requested or obtained access to those records and which will indicate specifically the legitimate interest that each party had in obtaining this information.
                      (b) A record of access shall be available only to:
                      (1) Parents or eligible students.
                      (2) The school official and his or her assistants who are responsible for the custody of such records.
                      (3) Persons or organizations authorized in and under the conditions of § 43.14.

                      § 43.19
                      Transfer of information by third parties.
                      (a) Educational institutions shall not release personal information on a student except on the condition that the party to which the information is being transferred will not permit any other party to have access to the information without the written consent of the parents or of the eligible students.
                      (b) With any information released to a party under paragraph (a) of this section, educational institutions shall include a written statement which informs the party of the requirement in paragraph (a) of this section.

                      § 43.20
                      Directory information.
                      (a) Any educational institution making public directory information shall make a reasonable effort to individually notify the parent or eligible student of the categories of information which it has designated as directory information. The institution shall allow a reasonable period of time after notice has been given for a parent or eligible student to inform the institution that any or all of the information designated should not be released without the prior consent of the parent or eligible student.
                      (b) Directory information may include the following: A student's name, address, telephone listing, date and place of birth, major field of study, participation in officially recognized activities and sports, weight and height of members of athletic teams, dates of attendance, degrees and awards received, and the most recent previous educational agency or institution attended by the student, tribe, agency, area, name of parent, sex, and classification (grade). No other information may be included. Educational institutions have the right to limit the content of directory information.

                      § 43.21
                      Standards for collection and maintenance of student records.
                      (a) Records shall contain only information about an individual which is relevant and necessary to accomplish a purpose of the Bureau required to be accomplished by statute or Executive order of the President.
                      (b) Student records which are used in making any determination about any student shall be maintained with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the student in making the determination.

                      (c) Information which may be used in determining a student's rights, benefits, and privileges under Federal programs shall be collected directly from the student or his parents, to the greatest extent practicable. In deciding whether collection of information from a parent or eligible student, as opposed to a third-party source is practicable, the following factors among others may be considered:

                      (1) Whether the nature of the information sought is such that it can only be obtained from a third party.
                      (2) Whether the cost of collecting the information from the parent or student is unreasonable, when compared with the cost of collecting it from a third party.
                      (3) Whether there is a risk that information collected from third parties, if inaccurate, could result in an adverse determination to the student concerned.
                      (4) Whether the information, if supplied by the parent or student, would have to be verified by a third party.
                      (5) Whether provisions can be made for verification by the parent of student of information collected from third parties.
                      (d) Each individual parent or eligible student who is asked to supply information about himself which will be added to a system of student records shall be notified of the basis for requesting the information, how it may be used, and what the consequences, if any, are of not supplying the information. At a minimum, the notice to the parent or eligible student must state:
                      (1) The authority (whether granted by statute or Executive Order of the President) which authorizes requesting the information and whether disclosure of such information is mandatory or voluntary.
                      (2) The principle purpose or purposes for which the information is intended to be used.
                      (3) The routine uses which may be made of the information.
                      (4) The effects, if any, of not providing all or any part of the requested information.
                      (e) When information is collected on a standard form, the notice to the parent or eligible student shall be on the form or on a tear-off sheet attached to the form or on a separate sheet, whichever, is most practical.
                      (f) When information is collected by an interviewer, the interviewer shall provide the parent or eligible student with a written notice which the individual may retain. If the interview is conducted by telephone, however, the interviewer may summarize the notice for the individual and need not provide a copy to the individual unless the individual requests that a copy be mailed to him.
                      (g) A parent or eligible student may be asked to acknowledge, in writing, that he has been given the notice required by this section.
                      (h) No student records may be maintained describing how any individual exercises rights guaranteed by the first amendment to the Constitution unless:
                      (1) Expressly authorized by statute or by the individual about whom the student record is maintained; or
                      (2) Pertinent to and within the scope of an authorized law enforcement activity.

                      § 43.22
                      Assuring integrity of records.
                      (a) Student records shall be maintained with appropriate administrative, technical and physical safeguards to insure the security and confidentiality of records and to protect against any anticipated threats or hazards to their security or integrity which could result in substantial harm, embarrassment, inconvenience, or unfairness to any individual on whom information is maintained.
                      (b) When maintained in manual form, student records shall be maintained, at a minimum, subject to the following safeguards, or safeguards giving comparable protection:
                      (1) Areas in which the student records are maintained or regularly used shall be posted with an appropriate warning, stating that access to the records is limited to authorized persons. The warning shall also summarize the requirements of § 43.23 and state that employees may be subject to a criminal penalty for the unauthorized disclosure of student records.
                      (2) During working hours, the area in which the student records are maintained or regularly used shall be occupied by authorized personnel, or access to the student records shall be restricted by their storage in locked metal file cabinets or a locked room.
                      (3) During nonworking hours, access to the student records shall be restricted by their storage in locked metal file cabinets or a locked room.

                      (4) Where a locked room is the method of security provided for a system, the educational institution responsible for the system shall, no later than December 31, 1978, supplement that security by:
                      (i) Providing lockable file cabinets or containers for the student records, or
                      (ii) Changing the lock or locks for the room so that they may not be opened with a master key. For the purpose of this paragraph, a master is a key which may be used to open rooms other than the room containing student records, unless those rooms are used by officials or employees authorized to have access to the student records.
                      (c) When maintained in computerized form, student records shall be maintained, at a minimum, subject to safeguards based on those recommended in the National Bureau of Standards' booklet, “Computer Security Guidelines for Implementing the Privacy Act of 1974” (May 30, 1975), and any supplements to it, which are adequate and appropriate to assure the integrity of records in the system.
                      (d) The education institution responsible for a system of student records shall be responsible for assuring that specific procedures are developed to assure that the student records in the system for which it is responsible are maintained with security meeting the regulations in this section. These procedures shall be in writing and shall be posted or otherwise periodically brought to the attention of employees working with the student records contained in the system.

                      § 43.23
                      Conduct of employees.
                      (a) Employees whose duties require handling of student records shall, at all times, take care to protect the integrity, security, and confidentiality of these records.
                      (b) No employee of the educational institution may disclose student records unless disclosure is permitted under § 43.14 or made to the parent of the student or eligible student to whom the record pertains.
                      (c) No employee of the educational institution may alter or destroy a student record, unless:
                      (1) Alteration or destruction is properly undertaken in the course of the employee's regular duties, or
                      (2) Alteration or destruction is required by an authorized administrative decision or the decision of a court of competent jurisdiction.
                      (d) The educational institution responsible for a system of student records shall be responsible for assuring that employees with access to the system are made aware of the requirements of this section.

                    Pt. 44
                    PART 44—GRANTS UNDER THE TRIBALLY CONTROLLED SCHOOLS ACT

                      Sec.
                      44.101
                      What directives apply to a grantee under this part?
                      44.102
                      Does this part affect existing tribal rights?
                      44.103
                      Who is eligible for a grant?
                      44.104
                      How can a grant be terminated?
                      44.105
                      How does a tribal governing body retrocede a program to the Secretary?
                      44.106
                      How can the Secretary revoke an eligibility determination?
                      44.107
                      Under what circumstances may the Secretary reassume a program?
                      44.108
                      How must the Secretary make grant payments?
                      44.109
                      What happens if the grant recipient is overpaid?
                      44.110
                      What Indian Self-Determination Act provisions apply to grants under the Tribally Controlled Schools Act?
                      44.111
                      Does the Federal Tort Claims Act apply to grantees?
                      44.112
                      Information Collection

                      Authority:
                      Public Law 107-110, Title 10, Part D, the Native American Education Improvement Act, 115 Stat. 2007; Part B, Section 1138, Regional Meetings and Negotiated Rulemaking, 115 Stat. 2057.

                      Source:
                      70 FR 22219, Apr. 28, 2005, unless otherwise noted.

                      § 44.101
                      What directives apply to a grantee under this part?
                      In making a grant under this part the Secretary will use only:
                      (a) The Tribally Controlled Schools Act;
                      (b) The regulations in this part; and
                      (c) Guidelines, manuals, and policy directives agreed to by the grantee.

                      § 44.102
                      Does this part affect existing tribal rights?
                      This part does not:

                      (a) Affect in any way the sovereign immunity from suit enjoyed by Indian tribes;
                      (b) Terminate or change the trust responsibility of the United States to any Indian tribe or individual Indian;
                      (c) Require an Indian tribe to apply for a grant; or
                      (d) Impede awards by any other Federal agency to any Indian tribe or tribal organization to administer any Indian program under any other law.

                      § 44.103
                      Who is eligible for a grant?
                      The Secretary can make grants to Indian tribes and tribal organizations that operate:

                      (a) A school under the provisions of 25 U.S.C. 450 et seq.;

                      (b) A tribally controlled school (including a charter school, community-generated school or other type of school) approved by tribal governing body; or
                      (c) A Bureau-funded school approved by tribal governing body.

                      § 44.104
                      How can a grant be terminated?
                      A grant can be terminated only by one of the following methods:
                      (a) Retrocession;
                      (b) Revocation of eligibility by the Secretary; or
                      (c) Reassumption by the Secretary.

                      § 44.105
                      How does a tribal governing body retrocede a program to the Secretary?
                      (a) To retrocede a program, the tribal governing body must:
                      (1) Notify the Bureau in writing, by formal action of the tribal governing body; and
                      (2) Consult with the Bureau to establish a mutually agreeable effective date. If no date is agreed upon, the retrocession is effective 120 days after the tribal governing body notifies the Bureau.
                      (b) The Bureau must accept any request for retrocession that meets the criteria in paragraph (a) of this section.
                      (c) After the tribal governing body retrocedes a program:

                      (1) The tribal governing body decides whether the school becomes Bureau-operated or contracted under 25 U.S.C. 450 et seq.; and
                      (2) If the tribal governing body decides that the school is to be Bureau-operated, the Bureau must provide education-related services in at least the same quantity and quality as those that were previously provided.

                      § 44.106
                      How can the Secretary revoke an eligibility determination?
                      (a) In order to revoke eligibility, the Secretary must:
                      (1) Provide the tribe or tribal organization with a written notice;
                      (2) Furnish the tribe or tribal organization with technical assistance to take remedial action; and
                      (3) Provide an appeal process.
                      (b) The Secretary cannot revoke an eligibility determination if the tribe or tribal organization is in compliance with 25 U.S.C. 2505(c).
                      (c) The Secretary can take corrective action if the school fails to be accredited by January 8, 2005.
                      (d) In order to revoke eligibility for a grant, the Secretary must send the tribe or tribal organization a written notice that:
                      (1) States the specific deficiencies that are the basis of the revocation or reassumption; and
                      (2) Explains what actions the tribe or tribal organization must take to remedy the deficiencies.
                      (e) The tribe or tribal organization may appeal a notice of revocation or reassumption by requesting a hearing under 25 CFR part 900, subpart L or P.

                      (f) After revoking eligibility, the Secretary will either contract the program under 25 U.S.C. 450 et seq. or operate the program directly.

                      § 44.107
                      Under what circumstances may the Secretary reassume a program?
                      The Secretary may only reassume a program in compliance with 25 U.S.C. 450m and 25 CFR part 900, subpart P. The tribe or school board shall have a right to appeal the reassumption pursuant to 25 CFR part 900, subpart L.

                      § 44.108
                      How must the Secretary make grant payments?

                      (a) The Secretary makes two annual grant payments.

                      (1) The first payment, consisting of 80 per cent of the amount that the grantee was entitled to receive during the previous academic year, must be made no later than July 1 of each year; and
                      (2) The second payment, consisting of the remainder to which the grantee is entitled for the academic year, must be made no later than December 1 of each year.
                      (b) For funds that become available for obligation on October 1, the Secretary must make payments no later than December 1.
                      (c) If the Secretary does not make grant payments by the deadlines stated in this section, the Secretary must pay interest under the Prompt Payment Act. If the Secretary does not pay this interest, the grantee may pursue the remedies provided under the Prompt Payment Act.

                      § 44.109
                      What happens if the grant recipient is overpaid?
                      (a) If the Secretary has mistakenly overpaid the grant recipient, then the Secretary will notify the grant recipient of the overpayment. The grant recipient must return the overpayment within 30 days after the final determination that overpayment occurred.
                      (b) When the grant recipient returns the money to the Secretary, the Secretary will distribute the money equally to all schools in the system.

                      § 44.110
                      What Indian Self-Determination Act provisions apply to grants under the Tribally Controlled Schools Act?
                      (a) The following provisions of 25 CFR part 900 apply to grants under the Tribally Controlled Schools Act.
                      (1) Subpart F; Standards for Tribal or Tribal Organization Management Systems, § 900.45.
                      (2) Subpart H; Lease of Tribally-owned Buildings by the Secretary.
                      (3) Subpart I; Property Donation Procedures.
                      (4) Subpart N; Post-award Contract Disputes.
                      (5) Subpart P; Retrocession and Reassumption Procedures.
                      (b) To resolve any disputes arising from the Secretary's administration of the requirements of this part, the procedures in subpart N of part 900 apply if the dispute involves any of the following:
                      (1) Any exception or problem cited in an audit;
                      (2) Any dispute regarding the grant authorized;
                      (3) Any dispute involving an administrative cost grant;
                      (4) Any dispute regarding new construction or facility improvement or repair; or
                      (5) Any dispute regarding the Secretary's denial or failure to act on a request for facilities funds.

                      § 44.111
                      Does the Federal Tort Claims Act apply to grantees?
                      Yes, the Federal Tort Claims Act applies to grantees.

                      § 44.112
                      Information collection.

                      Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This part in § 44.105 contains collections of information subject to the PRA. These collections have been approved by OMB under control number 1076-0163.

                    Pt. 46
                    PART 46—ADULT EDUCATION PROGRAM

                        Subpart A—General Provisions
                        Sec.
                        46.1
                        Purpose and scope.
                        46.2
                        Definitions.
                        46.3
                        Information collection.
                        46.10
                        Eligible activities.
                        46.20
                        Program requirements.
                        46.30
                        Records and reporting requirements.

                        Subpart B [Reserved]

                      Authority:
                      43 U.S.C. 1457; 25 U.S.C. 2, 9, 13.

                      Source:
                      62 FR 44081, Aug. 19, 1997, unless otherwise noted.

                      Subpart A—General Provisions

                        § 46.1
                        Purpose and scope.
                        The purpose of the Adult Education Program is to:
                        (a) Improve educational opportunities for Indian adults who lack the level of literacy skills necessary for effective citizenship and productive employment;
                        (b) Expand and improve existing programs for delivering adult education services, including delivery of these services to educationally disadvantaged Indian adults; and
                        (c) Encourage the establishment of adult education programs that will:
                        (1) Enable Indian adults to acquire adult basic educational skills necessary for literate functioning;
                        (2) Provide Indian adults with sufficient basic education to enable them to benefit from job training and retraining programs and to obtain and retain productive employment so that they might more fully enjoy the benefits and responsibilities of citizenship; and
                        (3) Enable Indian adults, who so desire, to continue their education to at least the level of completion of adult secondary education.

                        § 46.2
                        Definitions.
                        As used in this part:

                          Adult means an individual who has attained the age of sixteen or is beyond the age of compulsory school attendance under State or tribal law and not currently enrolled in a formal secondary or post-secondary educational program.

                          Adult Basic Education (ABE) means instruction designed for an adult who:
                        (1) Has minimal competence in reading, writing, and computation;
                        (2) Cannot speak, read, or write the English language sufficiently to allow employment commensurate with the adult's real ability;
                        (3) Is not sufficiently competent to meet the educational requirements of an adult consumer; or
                        (4) In grade level measurements that would be designated as grades 0 through 8.

                          Adult Education means services or instruction below the college level for adults who:
                        (1) Lack sufficient mastery of basic educational skills to enable them to function effectively in society, or
                        (2) Do not have a certificate of graduation from a school providing secondary education and have not achieved a GED.

                          Adult Education Office means the BIA or tribal office administering funds appropriated to the BIA, under the TPA, for Adult Education programs.

                          Adult Secondary Education means instruction designed for an adult who:
                        (1) Is literate and can function in everyday life, but is not proficient as a competitive consumer or employee; or
                        (2) Does not have a certificate of graduation (or its equivalent) from a school providing secondary education and in grade level measurements that would be designated as grades 9 through 12.

                          Assistant Secretary means the Assistant Secretary—Indian Affairs, Department of the Interior, or his/her designee.

                          Bureau means the Bureau of Indian Affairs.

                          Department of Education (ED) means the U.S. Department of Education.

                          Director means the Director, Office of Indian Education Programs, Bureau of Indian Affairs.

                          Indian means a person who is a member of, or is at least a one-fourth degree Indian blood descendent of a member of, an Indian tribe, and is eligible for the special programs and services provided by the United States through the Bureau of Indian Affairs to Indians because of their status as Indians;

                          Indian tribe means any Indian tribe, band, nation, rancheria, pueblo, colony or community, including any Alaska native village or regional or village corporation as defined in, or established pursuant to, the Alaska Native Claims Settlement Act (85 Stat. 668) that is Federally recognized by the United States Government through the Secretary of the Interior for the special programs and services provided by the Secretary to Indians because of their status as Indians.

                          Tribal Priority Allocation (TPA) means the BIA's budget formulation process that allows direct tribal government involvement in the setting of relative priorities for local operating programs.

                          Secretary means the Secretary of the Department of the Interior.

                          Service area means the geographic area served by the local Adult Education Program.

                        § 46.3
                        Information collection.

                        Information collection requirements contained in this part have been approved by the Office of Management and Budget under 44 U.S.C. 3501 et seq. and assigned control number 1076-0120. This information is being collected to assess the need for adult education programs. The information collection is used to manage program resources and for fiscal accountability and appropriate direct services documentation. Response to this request is necessary to obtain or retain a benefit. Public reporting burden for this form is estimated to average 4 hours per response including time for reviewing instructions, gathering, maintaining data, completing and reviewing the form. Direct comments regarding the burden estimate or any other aspect of this form to the BIA Information Collection Clearance Officer, 1849 C Street NW., Washington, DC 20240.
                        [67 FR 13570, Mar. 25, 2002]

                        § 46.10
                        Eligible activities.
                        (a) Subject to availability of funds, funds appropriated for the BIA's Adult Education Program may be used to support local projects or programs designed to:
                        (1) Enable Indian adults to acquire basic educational skills, including literacy;
                        (2) Enable Indian adults to continue their education through the secondary school level;
                        (3) Establish career education projects intended to improve employment opportunities;
                        (4) Provide educational services or instruction for elderly, disabled, or incarcerated Indian adults;
                        (5) Prepare individuals to benefit from occupational training; and
                        (6) Teach employment-related skills.
                        (b) Funds should not be used to support programs designed solely to prepare Indian adults to enter a specific occupation or cluster of closely related occupations.
                        (c) The Adult Education Program must be implemented in accordance with a plan established by the tribe(s) affected by the program. The tribe(s) may determine to set standards in addition to those established in this part.

                        § 46.20
                        Program requirements.
                        (a) The Adult Education Office will implement the program or project that is designed to address the needs of the Indian adults in the service area. To determine the needs of Indian adults in the area, the Adult Education Office must consider:
                        (1) Elementary/secondary school dropout or absentee rates;
                        (2) Average grade level completed;
                        (3) Unemployment rates; and
                        (4) Other appropriate measures.
                        (b) The Adult Education Office, to ensure efforts that no duplication of services exists, will identify other services in the area, including those offered by Federal, State and Tribal entities, that are designed to meet the same needs as those to be addressed by the project, and the number of Indian adults who receive those services.
                        (c) The Adult Education Office must establish and maintain an evaluation plan.
                        (1) The plan must be designed to measure the project's effectiveness in meeting each objective and the impact of the project on the adults involved; and
                        (2) The plan must provide procedures for periodic assessment of the progress of the project and, if necessary, modification of the project as a result of that assessment.
                        (d) Subject to the availability of funds, the project is to be supported under the funding level established for Adult Education in the formulation of the budget under the TPA process.

                        § 46.30
                        Records and reporting requirements.
                        (a) The Adult Education Office will annually submit a report on the previous project year's activities to the Director, Office of Indian Education Programs. The report must include the following information:

                        (1) The type of eligible activity, under § 46.10, conducted under the project(s);

                        (2) The number of participants acquiring the GED, high school diploma, and other certificates of performance; and
                        (3) A narrative summary of the activities conducted under the project.
                        (b) Each Adult Education Office must:
                        (1) Submit any records and information that the Director requires in connection with the administration of the program; and
                        (2) Comply with any requirements that the Director may impose to ensure the accuracy of the reports required by this part.

                      Subpart B [Reserved]

                    Pt. 47
                    PART 47—UNIFORM DIRECT FUNDING AND SUPPORT FOR BUREAU-OPERATED SCHOOLS

                      Sec.
                      47.1
                      What is the purpose of this part?
                      47.2
                      What definitions apply to terms in this part?
                      47.3
                      How does a Bureau-operated school find out how much funding it will receive?
                      47.4
                      When does OIEP provide funding?
                      47.5
                      What is the school supervisor responsible for?
                      47.6
                      Who has access to local education financial records?
                      47.7
                      What are the expenditure limitations for Bureau-operated schools?
                      47.8
                      Who develops the local educational financial plans?
                      47.9
                      What are the minimum requirements for the local educational financial plan?
                      47.10
                      How is the local educational financial plan developed?
                      47.11
                      Can these funds be used as matching funds for other Federal programs?
                      47.12
                      Information collection.

                      Authority:
                      Pub. L. 107-110, 115 Stat. 1425.

                      Source:
                      70 FR 22221, Apr. 28, 2005, unless otherwise noted.

                      § 47.1
                      What is the purpose of this part?
                      This part contains the requirements for developing local educational financial plans that Bureau-operated schools need in order to receive direct funding from the Bureau of Indian Affairs under section 1127 of the Act.

                      § 47.2
                      What definitions apply to terms in this part?

                        Act means the No Child Left Behind Act, Public Law 107-110, enacted January 8, 2002. The No Child Left Behind Act reauthorizes and amends the Elementary and Secondary Education Act (ESEA) and the amended Education Amendments of 1978.

                        Budget means that element in the local educational financial plan which shows all costs of the plan by discrete programs and sub-cost categories.

                        Bureau means the Bureau of Indian Affairs in the Department of the Interior.

                        Consultation means soliciting and recording the opinions of Bureau-operated school boards regarding each element of the local educational financial plan and incorporating these opinions to the greatest degree feasible in the development of the local educational financial plan at each stage.

                        Director means the Director, Office of Indian Education Programs.

                        Local educational financial plan means the plan that:
                      (1) Programs dollars for educational services for a particular Bureau-operated school; and
                      (2) Has been ratified in an action of record by the local school board or determined by the superintendent under the appeals process in 25 CFR part 2.

                        OIEP means the Office of Indian Education Programs in the Bureau of Indian Affairs of the Department of the Interior.

                        Secretary means the Secretary of the Interior or a designated representative.

                      § 47.3
                      How does a Bureau-operated school find out how much funding it will receive?
                      The Office of Indian Education Programs (OIEP) will notify each Bureau-operated school in writing of the annual funding amount it will receive as follows:
                      (a) No later than July 1 OIEP will let the Bureau-operated school know the amount that is 80 percent of its funding; and
                      (b) No later than September 30 OIEP will let the Bureau-operated school know the amount of the remaining 20 percent.

                      § 47.4
                      When does OIEP provide funding?
                      By July 1 of each year OIEP will make available for obligation 80 percent of the funds for the fiscal year that begins on the following October 1.

                      § 47.5
                      What is the school supervisor responsible for?
                      Each Bureau-operated school's school supervisor has the responsibilities in this section. The school supervisor must do all of the following:
                      (a) Ensure that the Bureau-operated school spends funds in accordance with the local educational financial plan, as ratified or amended by the school board;
                      (b) Sign all documents required to obligate or pay funds or to record receipt of goods and services;
                      (c) Report at least quarterly to the local school board on the amounts spent, obligated, and currently remaining in funds budgeted for each program in the local educational financial plan;
                      (d) Recommend changes in budget amounts to carry out the local educational financial plan, and incorporate these changes in the budget as ratified by the local school board, subject to provisions for appeal and overturn; and
                      (e) Maintain expenditure records in accordance with financial planning system procedures.

                      § 47.6
                      Who has access to local education financial records?
                      The Comptroller General, the Assistant Secretary, the Director, or any of their duly authorized representatives have access for audit and explanation purposes to any of the local school's accounts, documents, papers, and records which are related to the Bureau-operated schools' operation.

                      § 47.7
                      What are the expenditure limitations for Bureau-operated schools?
                      Each Bureau-operated school must spend all allotted funds in accordance with applicable Federal regulations and local education financial plans. If a Bureau-operated school and OIEP region or Agency support services staff disagree over expenditures, the Bureau-operated school must appeal to the Director for a decision.

                      § 47.8
                      Who develops the local educational financial plans?
                      The local Bureau-operated school supervisor develops the local educational financial plan in active consultation with the local school board, based on the tentative allotment received.

                      § 47.9
                      What are the minimum requirements for the local educational financial plan?
                      (a) The local educational financial plan must include:
                      (1) Separate funds for each group receiving a discrete program of services is to be provided, including each program funded through the Indian School Equalization Program;
                      (2) A budget showing the costs projected for each program; and
                      (3) A certification provision meeting the requirements of paragraph (b) of this section.
                      (b) The certification required by paragraph (a)(3) of this section must provide for:
                      (1) Certification by the chairman of the school board that the plan has been ratified in an action of record by the board; and
                      (2) Certification by the Education Line Officer that he or she has approved the plan as shown in an action overturning the school board's rejection or amendment of the plan.

                      § 47.10
                      How is the local educational financial plan developed?
                      (a) The following deadlines apply to development of the local educational financial plan:
                      (1) Within 15 days after receiving the tentative allotment, the school supervisor must consult with the local school board on the local educational financial plan.
                      (2) Within 30 days of receiving the tentative allotment, the school board must review the local educational financial plan and, by a quorum vote, ratify, reject, or amend, the plan.
                      (3) Within one week of the school board action under paragraph (a)(2) of this section, the supervisor must either:

                      (i) Send the plan to the education line officer (ELO), along with the official documentation of the school board action; or

                      (ii) Appeal the school board's decision to the ELO.
                      (4) The ELO will review the local educational financial plan for compliance with laws and regulations and may refer the plan to the Solicitor's Office for legal review. If the ELO notes any problem with the plan, he or she must:
                      (i) Notify the local board and local supervisor of the problem within two weeks of receiving the plan;
                      (ii) Make arrangements to assist the local school supervisor and board to correct the problem; and
                      (iii) Refer the problem to the Director of the Office of Indian Education if it cannot be solved locally.
                      (b) When consulting with the school board under paragraph (a)(1) of this section, the school supervisor must:
                      (1) Discuss the present program of the Bureau-operated school and any proposed changes he or she wishes to recommend;
                      (2) Give the school board members every opportunity to express their own ideas and views on the supervisor recommendations; and
                      (3) After the discussions required by paragraphs (b)(1) and (b)(2) of this section, present a draft plan to the school board with recommendations concerning each of the elements.
                      (c) If the school board does not act within the deadline in paragraph (a)(2) of this section, the supervisor must send the plan to the ELO for ratification. The school board may later amend the plan by a quorum vote; the supervisor must transmit this amendment in accordance with paragraph (a)(3) of this section.

                      § 47.11
                      Can these funds be used as matching funds for other Federal programs?
                      A Bureau-operated school may use funds that it receives under this part as matching funds for other Federal programs.

                      § 47.12
                      Information collection.

                      Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This part contains collections of information subject to the PRA in §§ 47.5, 47.7, 47.9, and 47.10. These collections have been approved by OMB under control number 1076-1063.

        SUBCHAPTER F—TRIBAL GOVERNMENT

          Pt. 61
          PART 61—PREPARATION OF ROLLS OF INDIANS

            Sec.
            61.1
            Definitions.
            61.2
            Purpose.
            61.3
            Information collection.
            61.4
            Qualifications for enrollment and the deadline for filing application forms.
            61.5
            Notices.
            61.6
            Application forms.
            61.7
            Filing of application forms.
            61.8
            Verification forms.
            61.9
            Burden of proof.
            61.10
            Review of applications by tribal authorities.
            61.11
            Action by the Director or Superintendent.
            61.12
            Appeals.
            61.13
            Decision of the Assistant Secretary on appeals.
            61.14
            Preparation, certification and approval of the roll.
            61.15
            Special instructions.

            Authority:
            5 U.S.C. 301; 25 U.S.C. 2 and 9, 1300d-3(b), 1401 et seq., and Pub. L. 108-270.

            Source:
            50 FR 46430, Nov. 8, 1985, unless otherwise noted.

            § 61.1
            Definitions.
            As used in these regulations:

              Act means any act of Congress authorizing or directing the Secretary to prepare a roll of a specific tribe, band, or group of Indians.

              Adopted person means a person whose natural parents' parental rights have been given to others to exercise by court order.

              Approved roll means a roll of Indians approved by the Secretary.

              Assistant Secretary means the Assistant Secretary of the Interior for Indian Affairs or an authorized representative acting under delegated authority.

              Basic roll means the specified allotment, annuity, census or other roll designated in the Act or Plan as the basis upon which a new roll is to be compiled.

              Commissioner means the Commissioner of Indian Affairs or an authorized representative acting under delegated authority.

              Descendant(s) means those persons who are the issue of the ancestor through whom enrollment rights are claimed; namely, the children, grandchildren, etc. It does not include collateral relatives such as brothers, sisters, nieces, nephews, cousins, etc. or adopted children, grandchildren, etc.

              Director means the Area Director of the Bureau of Indian Affairs area office which has administrative jurisdiction over the local field office responsible for administering the affairs of the tribe, band, or group for which a roll is being prepared or an authorized representative acting under delegated authority.

              Enrollee(s) means persons who have met specific requirements for enrollment and whose names appear on a particular roll of Indians.

              Lineal ancestor means an ancestor, living or deceased, who is related to a person by direct ascent; namely, the parent, grandparent, etc. It does not include collateral relatives such as brothers, sisters, aunts, uncles, etc., or adopted parents, grandparents, etc.

              Living means born on or before and alive on the date specified.

              Plan means any effective plan prepared under the provisions of the Act of October 19, 1973, Pub. L. 93-134, 87 Stat. 466, as amended, which authorizes and directs the Secretary to prepare a roll of a specific tribe, band, or group of Indians.

              Secretary means the Secretary of Interior or an authorized representative acting under delegated authority.

              Sponsor means any person who files an application for enrollment or appeal on behalf of another person.

              Staff Officer means the Enrollment Officer or other person authorized to prepare the roll.

              Superintendent means the official or other designated representative of the Bureau of Indian Affairs in charge of the field office which has immediate administrative responsibility for the affairs of the tribe, band, or group for which a roll is being prepared.

              Tribal Committee means the body of a federally recognized tribal entity vested with final authority to act on enrollment matters.

              Tribal Governing Document means the written organizational statement governing the tribe, band, or group of Indians and/or any valid document, enrollment ordinance, or resolution enacted thereunder.

            § 61.2
            Purpose.
            The regulations in this part 61 are to govern the compilation of rolls of Indians by the Secretary of the Interior pursuant to statutory authority. The regulations are not to apply in the compilation of tribal membership rolls where the responsibility for the preparation and maintenance of such rolls rests with the tribes.

            § 61.3
            Information collection.
            The Office of Management and Budget has reviewed and approved the information collection for § 61.4(k). The OMB Control Number assigned is 1076-0165. A federal agency may not conduct or sponsor, and you are not required to respond to, a collection of information unless it displays a currently valid OMB Control Number.
            [72 FR 9840, Mar. 5, 2007]

            § 61.4
            Qualifications for enrollment and the deadline for filing application forms.

            (a) The qualifications which must be met to establish eligibility for enrollment and the deadline for filing application forms will be included in this part 61 by appropriate amendments to this section; except that, when an Act or Plan states the qualifications for enrollment and the deadline for filing application forms and specifies that the regulations contained in this part 61 will apply, amendment to this section will not be required for the procedures contained in this part 61 to govern the preparation of the roll; provided further, the provisions contained in this part 61 that were in effect when the regulations were amended to include paragraphs (r), (s), (w), (x), (y), and (z) shall control the preparation of the rolls under paragraphs (r), (s), (w), (x), (y), and (z) of this section.
            (b) Pembina Band of Chippewa Indians. (1) Pursuant to section 7(a) of the Act of December 31, 1982, Pub. L. 97-403, 96 Stat. 2022, a roll is to be prepared and used as the basis for the distribution of an apportioned share of judgment funds awarded the Pembina Chippewa Indians in dockets numbered 113, 191, 221 and 246 of the Court of Claims of all persons who:
            (i) Are of at least 1/4 degree Pembina Chippewa blood;
            (ii) Are citizens of the United States;
            (iii) Were living on December 31, 1982;

            (iv) Are not members of the Red Lake Band of Chippewa Indians, the Turtle Mountain Band of Chippewa Indians, the Chippewa Cree Tribe of the Rocky Boy's Reservation, or Minnesota Chippewa Tribe, or the Little Shell Band of Chippewa Indians of Montana; and

            (v) Are enrolled or are lineal descendants of persons enrolled:
            (A) As Pembina descendants under the provisions of the Act of July 29, 1971 (85 Stat. 158), for the disposition of the 1863 Pembina Award, or
            (B) On the McCumber roll of the Turtle Mountain Indians of 1892, or
            (C) On the Davis roll of the Turtle Mountain Indians of 1904; or

            (D) As Chippewa on the tentative roll of the Rocky Boy Indians of May 30, 1917, or the McLaughlin census report of the Rocky Boy Indians of July 7, 1917, or the Roe Cloud Roll of Landless Indians of Montana; or

            (vi) Are able to establish Pembina ancestry on the basis of any other rolls or records acceptable to the Secretary.
            (2) Application forms for eligibility must be filed with the Superintendent, Turtle Mountain Agency, Bureau of Indian Affairs, Belcourt, North Dakota 58316, by March 10, 1986. Application forms filed after that date will be rejected for failure to file on time regardless of whether the applicant otherwise meets the qualifications for eligibility.

            (3) Each application for enrollment as a member of any of the tribes specified in paragraph (b)(1)(iv) of this section, except the Red Lake Band of Chippewa Indians, which may be rejected by the tribes shall be reviewed by the Superintendent to determine whether the applicant meets the qualifications for eligibility as a descendant of the Pembina Band of Chippewas under paragraph (b)(1) of this section. Each rejection notice shall contain a statement to the effect that the application is being given such review.

            (c) Cherokee Band of Shawnee Indians. (1) Pursuant to section 5 of the Act of December 20, 1982, Pub. L. 97-372, 96 Stat. 1815, a roll is to be prepared and used as the basis for the distribution of an apportioned share of judgment funds awarded the Shawnee Tribe in dockets 64, 335, and 338 by the Indian Claims Commission and in docket 64-A by the U.S. Court of Claims of all persons of Cherokee Shawnee ancestry:
            (i) Who were living on December 20, 1982;

            (ii) Who are lineal descendants of the Shawnee Nation as it existed in 1854, based on the roll of the Cherokee Shawnee compiled pursuant to the Act of March 2, 1889 (25 Stat. 994), or any other records acceptable to the Secretary including eligibility to share in the distribution of judgment funds awarded the Absentee Shawnee Tribe of Oklahoma on behalf of the Shawnee Nation in Indian Claims Commission docket 334-B as a Cherokee Shawnee descendant; and

            (iii) Who are not members of the Absentee Shawnee Tribe of Oklahoma or the Eastern Shawnee Tribe of Oklahoma.
            (2) Application forms for enrollment must be filed with the Director, Muskogee Area Office, Bureau of Indian Affairs, Federal Building, Muskogee, Oklahoma 74401, by May 9, 1986. Application forms filed after that date will be rejected for inclusion on the roll being prepared for failure to file on time regardless of whether the applicant otherwise meets the qualifications for enrollment.
            (d) Miami Indians of Indiana. (1) Pursuant to section 3 of the Act of December 21, 1982, Pub. L. 97-376, 96 Stat. 1828, a roll is to be prepared and used as the basis for the distribution of an apportioned share of judgment funds awarded the Miami Tribe of Oklahoma and the Miami Indians of Indiana in dockets 124-B and 254 by the U.S. Court of Claims of all persons of Miami Indian ancestry:
            (i) Who were living on December 21, 1982;
            (ii) Whose name or the name of a lineal ancestor appears on:
            (A) The roll of Miami Indians of Oklahoma and Indiana prepared pursuant to the Act of June 2, 1972 (86 Stat. 199), or
            (B) The roll of Miami Indians of Indiana of June 12, 1895, or
            (C) The roll of “Miami Indians of Indiana, now living in Kansas, Quapaw Agency, I.T., and Oklahoma Territory,” prepared and completed pursuant to the Act of March 2, 1895 (28 Stat. 903), or
            (D) The roll of the Eel River Miami Tribe of Indians of May 27, 1889, prepared and completed pursuant to the Act of June 29, 1888 (25 Stat. 223), or

            (E) The roll of the Western Miami Tribe of Indians of June 12, 1891 (26 Stat. 1001); and

            (iii) Who are not members of the Miami Tribe of Oklahoma.
            (2) Application forms for enrollment must be filed with the Director, Muskogee Area Office, Bureau of Indian Affairs, Federal Building, Muskogee, Oklahoma 74401, by May 9, 1986. Application forms filed after that date will be rejected for inclusion on the roll being prepared for failure to file on time regardless of whether the applicant otherwise meets the qualifications for enrollment.
            (e) Cow Creek Band of Umpqua Tribe of Indians. (1) Pursuant to section 5 of the Cow Creek Band of Umpqua Tribe of Indians Distribution of Judgment Funds Act of October 26, 1987, Pub. L. 100-139, a tribal membership roll is to be prepared comprised of all persons who are able to establish that they are of Cow Creek or other Indian ancestry indigenous to the United States based on any rolls or records acceptable to the Secretary and were not members of any other Federally recognized Indian tribe on July 30, 1987; and:
            (i) Who are named on the tribal roll dated September 13, 1980, the so-called Interrogatory No. 14 roll;
            (ii) Who are descendants of individuals named on the tribal roll dated September 13, 1980, the so-called Interrogatory No. 14 roll, and were born on or prior to October 26, 1987; or

            (iii) Who are descendants of individuals who were considered to be members of the Cow Creek Band of Umpqua Tribe of Indians for the purposes of the treaty entered between such Band and the United States on September 19, 1853.

            (2) Application forms for enrollment must be filed with the Superintendent, Siletz Agency, Bureau of Indian Affairs, P.O. Box 539, Siletz, Oregon 97380 by June 1, 1990. Application forms filed after that date will be rejected for inclusion on the tribal membership roll for failure to file on time regardless of whether the applicant otherwise meets the qualifications for enrollment.
            (f) Cow Creek Band of Umpqua Tribe of Indians descendants. (1) Pursuant to section 6(a)(1) of the Cow Creek Band of Umpqua Tribe of Indians Distribution of Judgment Funds Act of October 26, 1987, Pub. L. 100-139, a roll of nontribal members eligible to participate in the Higher Education and Vocational Training Program and the Housing Assistance Program of the Cow Creek Band of Umpqua Tribe of Indians is to be prepared of individuals:
            (i) Who are descended from persons considered members of the Cow Creek Band of Umpqua Tribe of Indians for purposes of the treaty entered into between such band and the United States on September 19, 1853 (10 Stat. 1027), as ratified by the Senate on April 12, 1854; and

            (ii) Who did not share or are not descendants of persons who shared in the distribution of funds under the Act entitled “An Act to provide for the termination of Federal supervision over the property of the Klamath Tribe of Indians located in the State of Oregon and the individuals members thereof, and for other purposes,” approved August 13, 1954 (25 U.S.C. 564 et seq.), or under the Act entitled “An Act to provide for the termination of Federal supervision over the property of certain tribes and bands of Indians located in western Oregon and the individual members thereof, and for other purposes,” approved August 13, 1954 (25 U.S.C. 691 et seq.).
            (2) Application forms for enrollment must be filed with the Superintendent, Siletz Agency, Bureau of Indian Affairs, P. O. Box 539, Siletz, Oregon 97380. Upon receipt of an application form, the Superintendent shall furnish a copy to the Cow Creek Band of Umpqua Tribe of Indians.
            (g) Cow Creek Band of Umpqua Tribe of Indians descendants. (1) Pursuant to section 6(a)(2) of the Cow Creek Band of Umpqua Tribe of Indians Distribution of Judgment Funds Act of October 26, 1987, Pub. L. 100-139, a roll of nontribal members eligible to participate in the Elderly Assistance Program of the Cow Creek Band of Umpqua Tribe of Indians is to be prepared of individuals:
            (i) Who are descended from persons considered members of the Cow Creek Band of Umpqua Tribe of Indians for purposes of the treaty entered into between such Band and the United States on September 19, 1853 (10 Stat. 1027), as ratified by the Senate on April 12, 1854;

            (ii) Who did not share or are not descendants of persons who shared in the distribution of funds under the Act entitled “An act to provide for the termination of Federal supervision over the property of the Klamath Tribe of Indians located in the State of Oregon and the individual members thereof, and for other purposes,” approved August 13, 1954 (25 U.S.C. 564 et seq.), or under the Act entitled “An Act to provide for the termination of Federal supervision over the property of certain tribes and bands of Indians located in western Oregon and the individual members thereof, and for other purposes,” approved August 13, 1954 (25 U.S.C. 691 et seq.); and
            (iii) Who were 50 years or older as of December 31, 1985.
            (2) Application forms for enrollment must be filed with the Superintendent, Siletz Agency, Bureau of Indian Affairs, P. O. Box 539, Siletz, Oregon 97380 by April 25, 1988, and with the Cow Creek Band of Umpqua Tribe of Indians. Application forms filed after that date will be rejected for failure to file on time regardless of whether the applicant otherwise meets the qualifications for eligibility for inclusion on the roll of persons eligible to participate in the Elderly Assistance Program, but will be considered for inclusion on the roll of persons eligible to participate in the Higher Education and Vocation Training Program and the Housing Assistance Program. Upon receipt of an application form, the Superintendent shall furnish a copy to the Cow Creek Band of Umpqua Tribe of Indians.
            (h) Indians of the Hoopa Valley Indian Reservation. Pursuant to section 5 of the Hoopa-Yurok Settlement Act of October 31, 1988, Pub. L. 100-580, a roll of Indians of the Reservation eligible to participate in certain settlement provisions is to be prepared of all persons:
            (1) Who were born on or prior to and living on October 31, 1988; and
            (2) Who are citizens of the United States; and
            (3) Who were not, on August 8, 1988, enrolled members of the Hoopa Valley Tribe; and

            (4) Who meet the criteria to qualify as an “Indian of the Reservation” under one of the following standards established by the U.S. Court of Claims in its March 31, 1982, decision, and the United States Claims Court in its May 14, 1987, and March 1, 1988, decisions in the cases of Short v. United States, (Cl. Ct. No. 102-63):
            (i) Standards A-E which are:
            (A) Allottees of land on any part of the Reservation, living on October 1, 1949, and lineal descendants of allottees living on October 1, 1949;
            (B) Persons living on October 1, 1949, and resident on the reservation at that time, who have received Reservation benefits or services, and hold an assignment, or can make other proof that though eligible to receive an allotment, they have not been allotted, and the lineal descendants of such persons, living on October 1, 1949;
            (C) Persons living on June 2, 1953, who have at least 1/4 degree Reservation blood, as defined in paragraph (h)(6)(i) of this section, have forebears born on the Reservation and were resident on the Reservation for 15 years prior to June 2, 1953;

            (D) Persons of at least 1/4 degree Indian blood, born after October 1, 1949, and before August 9, 1963, to a parent who is or would have been, when alive a qualified Indian of the Reservation under the standards in paragraphs (h)(4)(i) (A), (B) and (C) of this section, or has previously been held entitled to recover in the Short cases;

            (E) Persons born on or after August 9, 1963, who are of at least 1/4 degree Indian blood, derived exclusively from the qualified parent or parents who is or would have been, when alive, a qualified Indian of the Reservation under the standards in paragraphs (h)(4)(i) (A), (B) and (C) of this section, or has previously been held entitled to recover in the Short cases; or
            (ii) Manifest Injustice Standard which is: Persons who do not qualify under the standards in paragraph (h)(4)(i) of this section, but who it would be manifestly unjust to exclude from enrollment. To qualify under the manifest injustice standard, persons must adequately demonstrate all of the following:
            (A) A significant degree of Indian blood (at least 1/4 degree Indian blood, and
            (B) Personal connections to the Reservation shown through a substantial period of residence on the Reservation (nearly ten years of residence), and
            (C) Personal ties to the land of the Reservation and/or ties to the land through a lineal ancestor; and

            (5) Who file or have filed on their behalf application forms for enrollment with the Superintendent, Northern California Agency, Bureau of Indian Affairs, P.O. Box 494879, Redding, California 96049, by April 10, 1989. Applications filed after that date will not be considered for inclusion on the roll regardless of whether the applicant otherwise meets the qualifications for enrollment, except for plaintiffs determined to be an “Indian of the Reservation” in the Short cases, who will, if they otherwise meet the requirements of the Act, be included on the roll.
            (6) As used in paragraph (h) of this section:
            (i) Reservation blood means the blood of the following tribes or bands: Yurok; Hoopa/Hupa; Grouse Creek; Hunstand/Hoonsotton/Hoonsolton; Miskut/Miscotts/Miscolts; Redwood/Chilula; Saiaz/Nongatl/Siahs; Sermaltion; South Fork; Tish-tang-atan; Karok; Tolowa; Sinkyone/Sinkiene; Wailake/Wylacki; Wiyot/Humboldt; and Wintun.
            (ii) Short cases means the cases entitled Jessie Short et al. v. United States, (Cl. Ct. No. 102-63); Charlene Ackley v. United States, (Cl. Ct. No. 460-78); Bret Aastadt v. United States, (Cl. Ct. No. 146-85L); and Norman Giffen v. United States, (Cl. Ct. No. 746-85L).
            (i) [Reserved]
            (j) Coquille Tribe of Indians. (1) Pursuant to section 7 of the Coquille Restoration Act of June 28, 1989, Pub. L. 101-42, a tribal membership roll is to be prepared comprised of persons of Coquille Indian ancestry:
            (i) Who were born on or before and living on June 28, 1989;
            (ii) Who possess at least one-eighth (1/8) degree or more Indian blood;
            (iii) Who are not enrolled members of another federally recognized tribe; and
            (iv) Whose names were listed on the Coquille roll prepared pursuant to the Act of August 30, 1954 (68 Stat. 979; 25 U.S.C. 771), and approved by the Bureau of Indian Affairs on August 29, 1960;
            (v) Whose names were not listed on but who met the requirements to be listed on the Coquille roll prepared pursuant to the Act of August 30, 1954, and approved by the Bureau of Indian Affairs on August 29, 1960; or
            (vi) Who are lineal descendants of persons, living or dead, identified in paragraphs (j)(1)(iv) and (j)(1)(v) of this section.
            (2) To establish eligibility for inclusion on the tribal membership roll, all persons must file an application form with the Superintendent, Siletz Agency, Bureau of Indian Affairs, P.O. Box 539, Siletz, Oregon 97380 by January 10, 1991. Application forms filed after that date will be rejected for inclusion on the roll being prepared for failure to file on time regardless of whether the applicant otherwise meets the qualifications for enrollment.
            (3) For the purposes of establishing eligibility under paragraph (j) of this section, any available evidence establishing Coquille ancestry and the required degree of Indian blood shall be accepted. However, information shown on the Coquille roll prepared pursuant to the Act of August 30, 1954, shall be accepted as conclusive evidence of Coquille ancestry and blood degree information shown on the January 1, 1940, census roll of nonreservation Indians of the Grand Ronde-Siletz Agency shall be accepted as conclusive evidence in determining degree of Indian blood for applicants.
            (4) For the purposes of establishing eligibility under paragraph (j) of this section, persons who may be enrolled members of another federally recognized tribe or tribes may submit a conditional relinquishment of membership document in the other tribe or tribes with their application forms. A conditional relinquishment of membership document in the other tribe or tribes with their application forms. A conditional relinquishment will be accepted by the Superintendent only if it is executed by the person himself or herself unless the person is legally incompetent, in which case the legal guardian and only the legal guardian may execute the conditional relinquishment document. In the case of minors, only the parent or legal guardian may execute a conditional relinquishment document.
            (k) Western Shoshone Identifiable Group of Indians. (1) Under section 3(b)(1) of the Act of July 7, 2004, Pub. L. 108-270, 118 Stat. 805, the Secretary will prepare a roll of all individuals who meet the eligibility criteria established under the Act and who file timely applications prior to a date that will be established by a notice published in the Federal Register. The roll will be used as the basis for distributing the judgment funds awarded by the Indian Claims Commission to the Western Shoshone Identifiable Group of Indians in Docket No. 326-K. To be eligible a person must:
            (i) Have at least 1/4 degree of Western Shoshone blood;
            (ii) Be living on July 7, 2004;
            (iii) Be a citizen of the United States; and
            (iv) Not be certified by the Secretary to be eligible to receive a per capita payment from any other judgment fund based on an aboriginal land claim awarded by the Indian Claims Commission, the United States Claims Court, or the United States Court of Federal Claims, that was appropriated on or before July 7, 2004.
            (2) Indian census rolls prepared by the Agents or Superintendents at Carson or Western Shoshone Agencies between the years of 1885 and 1940, and other documents acceptable to the Secretary will be used in establishing proof of eligibility of an individual to:
            (i) Be listed on the judgment roll; and
            (ii) Receive a per capita payment under the Western Shoshone Claims Distribution Act.

            (3) Application forms for enrollment must be mailed to Tribal Government Services, BIA-Western Shoshone, Post Office Box 3838, Phoenix, Arizona 85030-3838.
            (4) The application period will remain open until further notice.
            (l)-(q) [Reserved]
            (r) Mdewakanton and Wahpakoota Tribe of Sioux Indians. (1) All lineal descendants of the Mdewakanton and Wahpakoota Tribe of Sioux Indians who were born on or prior to and were living on October 25, 1972, whose names or the name of a lineal ancestor appears on any available records and rolls acceptable to the Secretary of the Interior and who are not members of the Flandreau Santee Sioux Tribe of South Dakota, the Santee Sioux Tribe of Nebraska, the Lower Sioux Indian Community at Morton, Minn., the Prairie Island Indian Community at Welch, Minn., or the Shakopee Mdewakanton Sioux Community of Minnesota shall be entitled to be enrolled under title I, section 101(b) of the act of October 25, 1972 (86 Stat. 1168), to share in the distribution of funds derived from a judgment awarded the Mississippi Sioux Indians.
            (2) Applications for enrollment must have been filed with the Director, Aberdeen Area Office, Bureau of Indian Affairs, 820 South Main Street, Aberdeen, S. Dak. 57401, and must have been received no later than November 1, 1973. Applications received after that date will be denied for failure to file in time regardless of whether the applicant otherwise meets the requirements for enrollment.
            (3) Each application for enrollment with any of the tribes named in paragraph (r)(1) of this section which may be rejected by the tribes shall be reviewed by the Director to determine whether the applicant meets the requirements for enrollment as a descendant of the Mdewakanton and Wahpakoota Tribe of Sioux Indians under paragraph (r)(1) of this section. Each rejection notice issued by the tribes shall contain a statement to the effect that the application is being given such review.
            (s) Sisseton and Wahpeton Mississippi Sioux Tribe. (1) Persons meeting the criteria in this paragraph are entitled to enroll under 25 U.S.C. 1300d-3(b) to share in the distribution of certain funds derived from a judgment awarded to the Mississippi Sioux Indians. To be eligible a person must:
            (i) Be a lineal descendent of the Sisseton and Wahpeton Mississippi Sioux Tribe;
            (A) Those individuals who applied for enrollment before January 1, 1998, and whose applications were approved by the Aberdeen Area Director before that same date, are deemed to appear in records and rolls acceptable to the Secretary or have a lineal ancestor whose name appears in these records;
            (B) Those individuals who apply for enrollment after January 1, 1998, or whose application was not approved by the Aberdeen Area Director before that same date, must be able to trace ancestry to a specific Sisseton or Wahpeton Mississippi Sioux Tribe lineal ancestor who was listed on:
            (1) The 1909 Sisseton and Wahpeton annuity roll;
            (2) The list of Sisseton and Wahpeton Sioux prisoners convicted for participating in the outbreak referred to as the “1862 Minnesota Outbreak”;
            (3) The list of Sioux scouts, soldiers, and heirs identified as Sisseton and Wahpeton Sioux on the roll prepared under the Act of March 3, 1891 (26 Stat. 989 et seq., Chapter 543); or
            (4) Any other Sisseton or Wahpeton payment or census roll that preceded a roll referred to in paragraphs (s)(1)(i)(B)(1), (2), or (3) of this section.
            (ii) Be living on October 25, 1972;
            (iii) Be a citizen of the United States;
            (iv) Not be listed on the membership rolls for the following tribes:
            (A) The Flandreau Santee Sioux Tribe of South Dakota;
            (B) The Santee Sioux Tribe of Nebraska;
            (C) The Lower Sioux Indian Community at Morton, Minnesota;
            (D) The Prairie Island Indian Community at Welch, Minnesota;
            (E) The Shakopee Mdewakanton Sioux Community of Minnesota;
            (F) The Spirit Lake Tribe (formerly known as the Devils Lake Sioux of North Dakota);
            (G) The Sisseton-Wahpeton Sioux Tribe of South Dakota; or
            (H) The Assiniboine and Sioux Tribes of the Fort Peck Reservation.

            (v) Not be listed on the roll of Mdewakantan and Wahpakoota lineal descendants prepared under 25 U.S.C. 1300d-1(b).
            (2) The initial enrollment application period that closed on November 1, 1973, is reopened as of May 24, 1999. The application period will remain open until further notice.
            (t)-(v) [Reserved]
            (w) Lower Skagit Tribe of Indians. (1) All persons of Lower Skagit ancestry born on or prior to and living on February 18, 1975, who are lineal descendants of a member of the tribe as it existed in 1859 based on the 1919 Roblin Roll and other records acceptable to the Assistant Secretary, shall be entitled to have their names placed on the roll, to be prepared and used as the basis to distribute the judgment funds awarded the Lower Skagit Tribe in Indian Claims Commission docket 294. Proof of Upper Skagit ancestry will not be acceptable as proof of Lower Skagit ancestry.
            (2) Applications for enrollment must have been filed with the Superintendent, Puget Sound Agency, Bureau of Indian Affairs, 3006 Colby Avenue, Everett, Washington 88201, and must have been received by close of business on May 31, 1977. Applications received after that date will be denied for failure to file in time regardless of whether the applicant otherwise meets the requirements for enrollment.
            (3) Payment of shares will be made in accordance with parts 87 and 115 of this chapter.
            (x) Kikiallus Tribe of Indians. (1) All persons of Kikiallus ancestry born on or prior to and living on February 18, 1975, who are lineal descendants of a member of the tribe as it existed in 1859 based on the 1919 Roblin Roll and other records acceptable to the Assistant Secretary, shall be entitled to have their names placed on the roll, to be prepared and used as the basis to distribute the judgment funds awarded the Kikiallus Tribe in Indian Claims Commission docket 263.
            (2) Applications for enrollment must have been filed with the Superintendent, Puget Sound Agency, Bureau of Indian Affairs, 3006 Colby Avenue, Everett, Washington 98021, and must have been received by close of business on May 31, 1977. Applications received after that date will be denied for failure to file in time regardless of whether the applicant otherwise meets the requirements for enrollment.
            (3) Payment of shares will be made in accordance with parts 87 and 115 of this chapter.
            (y) Swinomish Tribe of Indians. (1) All persons of Swinomish ancestry born on or prior to and living on December 10, 1975, who are lineal descendants of a member of the tribe as it existed in 1859 based on the 1919 Roblin Roll and other records acceptable to the Assistant Secretary, shall be entitled to have their names placed on the roll, to be prepared and used as the basis to distribute the judgment funds awarded the Swinomish Tribe in Indian Claims Commission docket 233.
            (2) Application for enrollment must have been filed with the Superintendent, Puget Sound Agency, Bureau of Indian Affairs, 3006 Colby Avenue, Everett, Washington 98201, and must have been received by close of business on May 31, 1977. Applications received after that date will be denied for failure to file in time regardless of whether the applicant otherwise meets the requirements for enrollment.
            (3) Payment of shares will be made in accordance with parts 87 and 115 of this chapter.
            (z) Samish Tribe of Indians. (1) All persons of Samish ancestry born on or prior to and living on December 10, 1975, who are lineal descendants of a member of the tribe as it existed in 1859 based on any records acceptable to the Secretary, shall be entitled to have their names placed on the roll to be prepared and used as the basis to distribute the judgment funds awarded the Samish Tribe in Indian Claims Commission docket 261.

            (2) Applications for enrollment must have been filed with the Superintendent, Puget Sound Agency, Bureau of Indian Affairs, 3006 Colby Avenue, Everett, Washington 98201, and must have been received by close of business on May 31, 1977. Applicants received after that date will be denied for failure to file in time regardless of whether the applicant otherwise meets the requirements for enrollment.

            (3) Payment of shares will be made in accordance with parts 87 and 115 of this chapter.
            [50 FR 46430, Nov. 8, 1985, as amended at 53 FR 11272, Apr. 6, 1988; 54 FR 14193, Apr. 7, 1989; 55 FR 7494, Mar. 2, 1990; 55 FR 41519, Oct. 12, 1990; 56 FR 10806, Mar. 14, 1991; 64 FR 19898, Apr. 23, 1999; 72 FR 9840, Mar. 5, 2007]

            § 61.5
            Notices.
            (a) The Director or Superintendent shall give notice to all Directors of the Bureau of Indian Affairs and all Superintendents within the jurisdiction of the Director, of the preparation of the roll for public display in Bureau field offices. Reasonable efforts shall be made to place notices for public display in community buildings, tribal buildings, and Indian centers.
            (b) The Director or Superintendent shall, on the basis of available residence data, publish, and republish when advisable, notices of the preparation of the roll in appropriate locales utilizing media suitable to the circumstances.
            (c) The Director or Superintendent shall, when applicable, mail notices of the preparation of the roll to previous enrollees or tribal members at the last address of record or in the case of tribal members, the last address available.
            (d) Notices shall advise of the preparation of the roll and the relevant procedures to be followed including the qualifications for enrollment and the deadline for filing application forms to be eligible for enrollment. The notices shall also state how and where application forms may be obtained as well as the name, address, and telephone number of a person who may be contacted for further information.

            § 61.6
            Application forms.
            (a) Application forms to be filed by or for applicants for enrollment will be furnished by the Director, Superintendent, or other designated persons, upon written or oral request. Each person furnishing application forms shall keep a record of the names of individuals to whom forms are given, as well as the control numbers of the forms and the date furnished. Instructions for completing and filing applications shall be furnished with each form. The form shall indicate prominently the deadline for filing application forms.
            (b) Among other information, each application form shall contain:
            (1) Certification as to whether application form is for a natural child or an adopted child of the parent through whom eligibility is claimed.
            (2) If the application form is filed by a sponsor, the name and address of sponsor and relationship to applicant.
            (3) A control number for the purpose of keeping a record of forms furnished interested individuals.
            (4) Certification that the information given on the application form is true to the best of the knowledge and belief of the person filing the application. Criminal penalties are provided by statute for knowingly filing false information in such applications (18 U.S.C. 1001).
            (c) Application forms may be filed by sponsors on behalf of other persons.
            (d) Every applicant or sponsor shall furnish the applicant's mailing address on the application form. Thereafter, the applicant or sponsor shall promptly notify the Director or Superintendent of any change in address, giving appropriate identification of the application, otherwise the mailing address as stated on the form shall be acceptable as the address of record for all purposes under the regulations in this part 61.

            § 61.7
            Filing of application forms.
            (a) Application forms filed by mail must be postmarked no later than midnight on the deadline specified. Where there is no postmark date showing on the envelope or the postmark date is illegible, application forms mailed from within the United States, including Alaska and Hawaii, received more than 15 days and application forms mailed from outside of the United States received more than 30 days after the deadline specified in the office of the designated Director or Superintendent, will be denied for failure to file in time.
            (b) Application forms filed by personal delivery must be received in the office of the designated Director or Superintendent no later than close of business on the deadline specified.

            (c) If the deadline for filing application forms falls on a Saturday, Sunday, legal holiday, or other nonbusiness day, the deadline will be the next working day thereafter.
            (d) The provisions of this section shall not apply in the preparation of the rolls under paragraphs (r), (s), (w), (x), (y) and (z) of § 61.4.

            § 61.8
            Verification forms.

            If the Director or Superintendent is preparing a roll of Indians by adding names of eligible persons to and deleting names of ineligible persons from a previously approved roll, and individuals whose names appear on the previously approved roll are not required to file applications for enrollment, a verification form, to be completed and returned, shall be mailed to each previous enrollee using the last address of record. The verification form will be used to ascertain the previous enrollee's current name and address and that the enrollee is living, or if deceased, the enrollee's date of death. Name and/or address changes will only be made if the verification form is signed by an adult enrollee, if living, or the parent or guardian having legal custody of a minor enrollee, or an authorized sponsor. The verification form may also be used by any sponsor to notify the Director or Superintendent of the date of death of a previous enrollee.

            § 61.9
            Burden of proof.
            The burden of proof rests upon the applicant or tribal member to establish eligibility for enrollment. Documentary evidence such as birth certificates, death certificates, baptismal records, copies of probate findings, or affidavits, may be used to support claim of eligibility for enrollment. Records of the Bureau of Indian Affairs may be used to establish eligibility.

            § 61.10
            Review of applications by tribal authorities.
            (a) If tribal review is applicable, the Director or Superintendent shall submit all applications to the Tribal Committee for review and recommendations or determinations; except that, in the cases of adopted persons where the Bureau of Indian Affairs has assured confidentiality to obtain the information necessary to determine the eligibility for enrollment of the individual or has the statutory obligation to maintain the confidentiality of the information, the confidential information may not be released to the Tribal Committee, but the Director or Superintendent shall certify as to the eligibility for enrollment of the individual to the Tribal Committee.
            (b) The Tribal Committee shall review all applications and make its recommendations or determinations in writing stating the reasons for acceptance or rejection for enrollment.
            (c) The Tribal Committee shall return the applications to the Director or Superintendent with its recommendations or determinations and any additional evidence used in determining eligibility for enrollment within 30 days of receipt of the applications by the Tribal Committee. The Director or Superintendent may grant the Tribal Committee additional time, upon request, for its review.
            (d) Acceptance of an individual for enrollment by the Tribal Committee does not insure the individual's eligibility to share in the distribution of the judgment funds.

            § 61.11
            Action by the Director or Superintendent.
            (a) The Director or Superintendent shall consider each application, all documentation, and when applicable, tribal recommendations or determinations.
            (b) The Director or Superintendent, when tribal recommendations or determinations are applicable, shall accept the recommendations or determinations of the Tribal Committee unless clearly erroneous.
            (1) If the Director or Superintendent does not accept the tribal recommendation or determination, the Tribal Committee shall be notified in writing, by certified mail, return receipt requested, or by personal delivery, of the action and the reasons therefor.
            (2) The Tribal Committee may appeal the decision of the Director or Superintendent not to accept the tribal recommendation or determination. Such appeal must be in writing and must be filed pursuant to part 62 of this chapter.

            (3) Unless otherwise specified by law or in a tribal governing document, the determination of the Director or Superintendent shall only affect the individual's eligibility to share in the distribution of judgment funds.
            (c) The Director or Superintendent, upon determining an individual's eligibility, shall notify the individual, parent or guardian having legal custody of a minor, or sponsor, as applicable, in writing of the decision. If an individual files applications on behalf of more than one person, one notice of eligibility or adverse action may be addressed to the person who filed the applications. However, the notice must list the name of each person involved. Where an individual is represented by a sponsor, notification of the sponsor of eligibility or adverse action shall be considered to be notification of the individual.
            (1) If the Director or Superintendent determines that the individual is eligible, the name of the individual shall be placed on the roll.
            (2) If the Director or Superintendent determines that the individual is not eligible, he/she shall notify the individual's parent or guardian having legal custody of a minor, or sponsor, as applicable, in writing by certified mail, to be received by the addressee only, return receipt requested, and shall explain fully the reasons for the adverse action and the right to appeal to the Secretary. If correspondence is sent out of the United States, registered mail will be used. If a certified or registered notice is returned as “Unclaimed” the Director or Superintendent shall remail the notice by regular mail together with an acknowledgment of receipt form to be completed by the addressee and returned to the Director or Superintendent. If the acknowledgment of receipt is not returned, computation of the appeal period shall begin on the date the notice was remailed. Certified or registered notices returned for any reason other than “Unclaimed” need not be remailed.
            (d) Except as provided in paragraph (c)(2) of this section, a notice of adverse action is considered to have been made and computation of the appeal period shall begin on the earliest of the following dates:
            (1) Of delivery indicated on the return receipt;
            (2) Of acknowledgment of receipt;
            (3) Of personal delivery; or
            (4) Of the return by the post office of an undelivered certified or registered letter.
            (e) In all cases where an applicant is represented by an attorney, the attorney shall be recognized as fully controlling the application on behalf of the applicant and service on the attorney of any document relating to the application shall be considered to be service on the applicant. Where an applicant is represented by more than one attorney, service upon one of the attorneys shall be sufficient.
            (f) To avoid hardship or gross injustice, the Director or Superintendent may waive technical deficiencies in applications or other submissions. Failure to file by the deadline does not constitute a technical deficiency.

            § 61.12
            Appeals.
            Appeals from or on behalf of tribal members or applicants who have been denied enrollment must be in writing and must be filed pursuant to part 62 of this chapter. When the appeal is on behalf of more than one person, the name of each person must be listed in the appeal. A copy of part 62 of this chapter shall be furnished with each notice of adverse action.

            § 61.13
            Decision of the Assistant Secretary on appeals.
            The decision of the Assistant Secretary on an appeal shall be final and conclusive and written notice of the decision shall be given the individual, parent or guardian having legal custody of a minor, or sponsor, as applicable. The name of any person whose appeal has been sustained will be added to the roll. Unless otherwise specified by law or in a tribal governing document, the determination of the Assistant Secretary shall only affect the individual's eligibility to share in the distribution of the judgment funds.

            § 61.14
            Preparation, certification and approval of the roll.

            (a) The staff officer shall prepare a minimum of five copies of the roll of those persons determined to be eligible for enrollment. The roll shall contain for each person a roll number, name, address, sex, date of birth, date of death, when applicable, and when required by law, degree of Indian blood, and, in the remarks column, when applicable, the basic roll number, date of the basic roll, name and relationship of ancestor on the basic roll through whom eligibility was established.
            (b) A certificate shall be attached to the roll by the staff officer or Superintendent certifying that to the best of his/her knowledge and belief the roll contains only the names of those persons who were determined to meet the qualifications for enrollment.
            (c) The Director shall approve the roll.

            § 61.15
            Special instructions.
            To facilitate the work of the Director or Superintendent, the Assistant Secretary may issue special instructions not inconsistent with the regulations in this part 61.

          Pt. 62
          PART 62—ENROLLMENT APPEALS

            Sec.
            62.1
            Definitions.
            62.2
            Purpose.
            62.3
            Information collection.
            62.4
            Who may appeal.
            62.5
            An appeal.
            62.6
            Filing of an appeal.
            62.7
            Burden of proof.
            62.8
            Advising the tribal committee.
            62.9
            Action by the Superintendent.
            62.10
            Action by the Director.
            62.11
            Action by the Assistant Secretary.
            62.12
            Special instructions.

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

            Source:
            52 FR 30160, Aug. 13, 1987, unless otherwise noted.

            § 62.1
            Definitions.
            As used in these regulations:

              Assistant Secretary means the Assistant Secretary of the Interior for Indian Affairs or an authorized representative acting under delegated authority.

              Bureau means the Bureau of Indian Affairs of the Department of the Interior.

              Commissioner means the Commissioner of Indian Affairs or an authorized representative acting under delegated authority.

              Department means the Department of the Interior.

              Director means the Area Director of the Bureau of Indian Affairs area office which has administrative jurisdiction over the local field office responsible for administering the affairs of a tribe, band, or group of Indians or an authorized representative acting under delegated authority.

              Secretary means the Secretary of the Interior or an authorized representative acting under delegate authority.

              Sponsor means any authorized person, including an attorney, who files an appeal on behalf of another person.

              Superintendent means the official or other designated representative of the Bureau of Indian Affairs in charge of the field office which has immediate administrative responsibility with respect to the affairs of a tribe, band, or group of Indians or an authorized representative acting under delegated authority.

              Tribal committee means the body of a federally recognized tribal entity vested with final authority to act on enrollment matters.

              Tribal governing document means the written organizational statement governing a tribe, band or group of Indians and/or any valid document, enrollment ordinance or resolution enacted thereunder.

              Tribal member means a person who meets the requirements for enrollment in a tribal entity and has been duly enrolled.

            § 62.2
            Purpose.
            (a) The regulations in this part are to provide procedures for the filing and processing of appeals from adverse enrollment actions by Bureau officials.
            (b) The regulations in this part are not applicable and do not provide procedures for the filing of appeals from adverse enrollment actions by tribal committees, unless:
            (1) The adverse enrollment action is incident to the preparation of a tribal roll subject to Secretarial approval; or
            (2) An appeal to the Secretary is provided for in the tribal governing document.

            § 62.3
            Information collection.
            In accordance with the Office of Management and Budget regulations contained in 5 CFR 1320.3, approval of the information collection requirements contained in this part is not required.

            § 62.4
            Who may appeal.
            (a) A person who is the subject of an adverse enrollment action may file or have filed on his/her behalf an appeal. An adverse enrollment action is:
            (1) The rejection of an application for enrollment by a Bureau official incident to the preparation of a roll for Secretarial approval;
            (2) The removal of a name from a tribal roll by a Bureau official incident to review of the roll for Secretarial approval;
            (3) The rejection of an application for enrollment or the disenrollment of a tribal member by a tribal committee when the tribal governing document provides for an appeal of the action to the Secretary;
            (4) The change in degree of Indian blood by a tribal committee which affects a tribal member when the tribal governing document provides for an appeal of the action to the Secretary;
            (5) The change in degree of Indian blood by a Bureau official which affects an individual; and
            (6) The certification of degree of Indian blood by a Bureau official which affects an individual.
            (b) A tribal committee may file an appeal as provided for in § 61.11 of this chapter.
            (c) A sponsor may file an appeal on behalf of another person who is subject to an adverse enrollment action.

            § 62.5
            An appeal.
            (a) An appeal must be in writing and must be filed with the Bureau official designated in the notification of an adverse enrollment action, or in the absence of a designated official, with the Bureau official who issued the notification of an adverse enrollment action; or when the notification of an adverse action is made by a tribal committee with the Superintendent.
            (b) An appeal may be on behalf of more than one person. However, the name of each appellant must be listed in the appeal.
            (c) An appeal filed by mail or filed by personal delivery must be received in the office of the designated Bureau official or of the Bureau official who issued the notification of an adverse enrollment action by close of business within 30 days of the notification of an adverse enrollment action, except when the appeal is mailed from outside the United States, in which case the appeal must be received by the close of business within 60 days of the notification of an adverse enrollment action.
            (d) The appellant or sponsor shall furnish the appellant's mailing address in the appeal. Thereafter, the appellant or sponsor shall promptly notify the Bureau official with whom the appeal was filed of any change of address, otherwise the address furnished in the appeal shall be the address of record.
            (e) An appellant or sponsor may request additional time to submit supporting evidence. A period considered reasonable for such submissions may be granted by the Bureau official with whom the appeal is filed. However, no additional time will be granted for the filing of the appeal.
            (f) In all cases where an appellant is represented by a sponsor, the sponsor shall be recognized as fully controlling the appeal on behalf of the appellant. Service of any document relating to the appeal shall be on the sponsor and shall be considered to be service on the appellant. Where an appellant is represented by more than one sponsor, service upon one of the sponsors shall be sufficient.

            § 62.6
            Filing of an appeal.
            (a) Except as provided in paragraph (b) of this section, a notification of an adverse enrollment action will be mailed to the address of record or the last available address and will be considered to have been made and computation of the appeal period shall begin on:
            (1) The date of delivery indicated on the return receipt when notice of the adverse enrollment action has been sent by certified mail, return receipt requested; or

            (2) Ten (10) days after the date of the decision letter to the individual when notice of the adverse enrollment action has not been sent by certified mail return receipt requested and the letter has not been returned by the post office; or
            (3) The date the letter is returned by the post office as undelivered whether the notice of the adverse enrollment action has been sent by certified mail return receipt requested or by regular mail.
            (b) When notification of an adverse enrollment action is under the regulations contained in part 61 of this chapter, computation of the appeal period shall be in accordance with § 61.11.
            (c) In computing the 30 or 60 day appeal period, the count begins with the day following the notification of an adverse enrollment action and continues for 30 or 60 calendar days. If the 30th or 60th day falls on a Saturday, Sunday, legal holiday, or other nonbusiness day, the appeal period will end on the first working day thereafter.

            § 62.7
            Burden of proof.
            (a) The burden of proof is on the appellant or sponsor. The appeal should include any supporting evidence not previously furnished and may include a copy or reference to any Bureau or tribal records having a direct bearing on the action.
            (b) Criminal penalties are provided by statute for knowingly filing false or fraudulent information to an agency of the U.S. government (18 U.S.C. 1001).

            § 62.8
            Advising the tribal committee.
            Whenever applicable, the Superintendent or Director shall notify the tribal committee of the receipt of the appeal and shall give the tribal committee the opportunity to examine the appeal and to present such evidence as it may consider pertinent to the action being appealed. The tribal committee shall have not to exceed 30 days from receipt of notification of the appeal in which to present in writing such statements as if may deem pertinent, supported by any tribal records which have a bearing on the case. The Director or Superintendent may grant the tribal committee additional time, upon request, for its review.

            § 62.9
            Action by the Superintendent.
            When an appeal is from an adverse enrollment action taken by a Superintendent or tribal committee, the Superintendent shall acknowledge in writing receipt of the appeal and shall forward the appeal to the Director together with any relevant information or records; the recommendations of the tribal committee, when applicable; and his/her recommendations on the appeal.

            § 62.10
            Action by the Director.
            (a) Except as provided in paragraph (c) of this section, when an appeal is from an adverse enrollment action taken by a Superintendent or tribal committee, the Director will consider the record as presented together with such additional information as may be considered pertinent. Any additional information relied upon shall be specifically identified in the decision. The Director shall make a decision on the appeal which shall be final for the Department and which shall so state in the decision. The appellant or sponsor will be notified in writing of the decision. Provided that, the Director may waive his/her authority to make a final decision and forward the appeal to the Assistant Secretary for final action.
            (b) When an appeal is from an adverse enrollment action taken by a Director, the Director shall acknowledge in writing receipt of the appeal and shall forward the appeal to the Assistant Secretary for final action together with any relevant information or records; the recommendations of the tribal committee, when applicable; and his/her recommendations.
            (c) The Director shall forward the appeal to the Assistant Secretary for final action together with any relevant information or records; the recommendations of the tribal committee, when applicable; and his/her recommendations when the adverse enrollment action which is being appealed is either:

            (1) The change in degree of Indian blood by a tribal committee which affects a tribal member and the tribal governing document provides for an appeal of the action to the Secretary; or

            (2) The change in degree of Indian blood by a Bureau official which affects an individual.

            § 62.11
            Action by the Assistant Secretary.
            The Assistant Secretary will consider the record as presented, together with such additional information as may be considered pertinent. Any additional information relied upon shall be specifically identified in the decision. The Assistant Secretary shall make a decision on the appeal which shall be final for the Department and which shall so state in the decision. The appellant or sponsor will be notified in writing of the decision.

            § 62.12
            Special instructions.
            To facilitate the work of the Director, the Assistant Secretary may issue special instructions not inconsistent with the regulations in this part 62.

          Pt. 63
          PART 63—INDIAN CHILD PROTECTION AND FAMILY VIOLENCE PREVENTION

              Subpart A—Purpose, Policy, and Definitions
              Sec.
              63.1
              Purpose.
              63.2
              Policy.
              63.3
              Definitions.
              63.4
              Information collection.
              63.5-63.9
              [Reserved]

              Subpart B—Minimum Standards of Character and Suitability for Employment
              63.10
              Purpose.
              63.11
              What is a determination of suitability for employment and efficiency of service?
              63.12
              What are minimum standards of character?
              63.13
              What does the Indian Child Protection and Family Violence Prevention Act require of the Bureau of Indian Affairs and Indian tribes or tribal organizations receiving funds under the Indian Self-Determination and Education Assistance Act or the Tribally Controlled Schools Act?
              63.14
              What positions require a background investigation and determination of suitability for employment or retention?
              63.15
              What questions should an employer ask?
              63.16
              Who conducts the background investigation and prepares the determination of suitability for employment?
              63.17
              How does an employer determine suitability for employment and efficiency of service?
              63.18
              Are the requirements for Bureau of Indian Affairs adjudication different from the requirements for Indian tribes and tribal organizations?
              63.19
              When should an employer deny employment or dismiss an employee?
              63.20
              What should an employer do if an individual has been charged with an offense but the charge is pending or no disposition has been made by a court?
              63.21
              Are there other factors that may disqualify an applicant, volunteer or employee from placement in a position which involves regular contact with or control over Indian children?
              63.22
              Can an employer certify an individual with a prior conviction or substantiated misconduct as suitable for employment?
              63.23
              What rights does an applicant, volunteer or employee have during this process?
              63.24
              What protections must employers provide to applicants, volunteers and employees?
              63.25-63.29
              [Reserved]

              Subpart C—Indian Child Protection and Family Violence Prevention Program
              63.30
              What is the purpose of the Indian child protection and family violence prevention program?
              63.31
              Can both the Bureau of Indian Affairs and tribes operate Indian child protection and family violence prevention programs?
              63.32
              Under what authority are Indian child protection and family violence prevention program funds awarded?
              63.33
              What must an application for Indian child protection and family violence prevention program funds include?
              63.34
              How are Indian child protection and family violence prevention program funds distributed?
              63.35
              How may Indian child protection and family violence prevention program funds be used?
              63.36
              What are the special requirements for Indian child protection and family violence prevention programs?
              63.37-63.50
              [Reserved]

            Authority:
            5 U.S.C. 301; 25 U.S.C. 2, 9, 13, 200, 3201 et seq.; 42 U.S.C. 13041.

            Source:
            61 FR 32274, June 21, 1996, unless otherwise noted.

            Subpart A—Purpose, Policy, and Definitions

              § 63.1
              Purpose.
              The purpose of these regulations is to prescribe minimum standards of character and suitability for employment for individuals whose duties and responsibilities allow them regular contact with or control over Indian children, and to establish the method for distribution of funds to support tribally operated programs to protect Indian children and reduce the incidents of family violence in Indian country as authorized by the Indian Child Protection and Family Violence Prevention Act of 1990, Pub. L. 101-630, 104 Stat. 4544, 25 U.S.C. 3201 3211.

              § 63.2
              Policy.
              In enacting the Indian Child Protection and Family Violence Prevention Act, the Congress recognized there is no resource more vital to the continued existence and integrity of Indian tribes than their children and that the United States has a direct interest, as trustee, in protecting Indian children who are members of, or are eligible for membership in, an Indian tribe. The minimum standards of character and suitability of employment for individuals ensure that Indian children are protected, and the Indian child protection and family violence prevention programs will emphasize the unique values of Indian culture and community involvement in the prevention and treatment of child abuse, child neglect and family violence.

              § 63.3
              Definitions.

                Bureau means the Bureau of Indian Affairs of the Department of the Interior;

                Child means an individual who is not married, and has not attained 18 years of age.

                Child abuse includes but is not limited to any case in which a child is dead, or exhibits evidence of skin bruising, bleeding, malnutrition, failure to thrive, burns, fracture of any bone, subdural hematoma, or soft tissue swelling, and this condition is not justifiably explained or may not be the product of an accidental occurrence; and any case in which a child is subjected to sexual assault, sexual molestation, sexual exploitation, sexual contact, or prostitution.

                Child neglect includes but is not limited to, negligent treatment or maltreatment of a child by a person, including a person responsible for the child's welfare, under circumstances which indicate that the child's health or welfare is harmed or threatened.

                Crimes against persons are defined by local law. Adjudicating officers must contact local law enforcement agencies to determine if the crime for which an applicant or employee was found guilty (or entered a plea of nolo contendere or guilty) is defined as a crime against persons.

                Family violence means any act, or threatened act, of violence, including any forceful detention of an individual, which results, or threatens to result, in physical or mental injury, and is committed by an individual against another individual to whom such person is, or was, related by blood or marriage or otherwise legally related, or with whom such person is, or was, residing, or with whom such person has, or had, intimate or continuous social contact and household access.

                Indian means any individual who is a member of an Indian tribe.

                Indian child means any unmarried person who is under age eighteen and is either a member of an Indian tribe or eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.

                Indian country means:
              (1) All land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation;
              (2) All dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof; and,

              (3) All Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same. Unless otherwise indicated, the term “Indian country” is used instead of “Indian reservation” for consistency.

                Indian reservation means any Indian reservation, public domain Indian allotment, former Indian reservation in Oklahoma, or lands held by incorporated Native groups, regional corporations, or village corporations under the provisions of the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.).

                Indian tribe means any Indian tribe, band, nation, or other organized group or community, including any Alaska Native village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.) which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.

                Inter-tribal consortium means a partnership between an Indian tribe or tribal organization of an Indian tribe, and one or more Indian tribes or tribal organizations of one or more Indian tribes.

                Local child protective services agency is an agency of the Federal Government, state, or Indian tribe that has the primary responsibility for child protection on any Indian reservation, or within any community in Indian country.

                Local law enforcement agency is that Federal, tribal, or state law enforcement agency that has primary responsibility for the investigation of an instance of alleged child abuse within the involved Indian jurisdiction.

                Must is used in place of shall and indicates a mandatory or imperative act or requirement.

                Person responsible for a child's welfare is any person who has legal or other recognized duty for the care and safety of a child, and may include any employee or volunteer of a children's residential facility, and any person providing out-of-home care, education, or services to children.

                Related assistance means the counseling and self-help services for abusers, victims, and dependents in family violence situations; referrals for appropriate health-care services (including alcohol and drug abuse treatment); and may include food, clothing, child care, transportation, and emergency services for victims of family violence and their dependents.

                Secretary means the Secretary of the Interior.

                Service means the Indian Health Service of the Department of Health and Human Services.

                Shelter means the temporary refuge and related assistance in compliance with applicable Federal and tribal laws and regulations governing the provision, on a regular basis, of shelter, safe homes, meals, and related assistance to victims of family violence or their dependents.

                Tribal organization means the recognized governing body of any Indian tribe; any legally established organization of Indians which is controlled, sanctioned, or chartered by such governing body or which is democratically elected by the adult members of the Indian community to be served by such organization and which includes the maximum participation of Indians in all phases of its activities: Provided, That in any case where a contract is let, a grant is awarded, or funding agreement is made to an organization to perform services benefitting more than one Indian tribe, the approval of each such Indian tribe must be a prerequisite to the letting or making of such contract, grant, or funding agreement.

              § 63.4
              Information collection.
              The information collection requirement contained in § 63.15, § 63.33 and § 63.34 will be approved by the Office of Management and Budget under the Paperwork Reduction Act of 1995, 44 U.S.C. 3507(d), and assigned clearance number _____.

              §§ 63.5-63.9
              [Reserved]

            Subpart B—Minimum Standards of Character and Suitability for Employment

              § 63.10
              Purpose.
              The purpose of this part is to establish:

              (a) Procedures for determining suitability for employment and efficiency of service as mandated by the Indian Child Protection and Family Violence Prevention Act; and

              (b) Minimum standards of character to ensure that individuals having regular contact with or control over Indian children have not been convicted of certain types of crimes or acted in a manner that placed others at risk or raised questions about their trustworthiness.

              § 63.11
              What is a determination of suitability for employment and efficiency of service?
              (a) Determinations of suitability measure the fitness or eligibility of an applicant, volunteer, or employee for a particular position. Suitability for employment does not evaluate an applicant's education, skills, knowledge, experience, etc. Rather, it requires that the employer investigate the background of each applicant, volunteer, and employee to:
              (1) Determine the degree of risk the applicant, volunteer, or employee brings to the position; and
              (2) Certify that the applicant's, volunteer's, or employee's past conduct would not interfere with his/her performance of duties, nor would it create an immediate or long-term risk for any Indian child.
              (b) Efficiency of service is the employer's verification that the applicant or employee is able to perform the duties and responsibilities of the position, and his/her presence on the job will not inhibit other employees or the agency from performing their functions.

              § 63.12
              What are minimum standards of character?
              Minimum standards of character are established by an employer and refer to identifiable character traits and past conduct. An employer may use character traits and past conduct to determine whether an applicant, volunteer, or employee can effectively perform the duties of a particular position without risk of harm to others. Minimum standards of character ensure that no applicant, volunteer, or employee will be placed in a position with regular contact with or control over Indian children if he/she has been found guilty of or entered a plea of nolo contendere or guilty to any offense under Federal, state, or tribal law involving crimes of violence, sexual assault, sexual molestation, sexual exploitation, sexual contact or prostitution, or crimes against persons.

              § 63.13
              What does the Indian Child Protection and Family Violence Prevention Act require of the Bureau of Indian Affairs and Indian tribes or tribal organizations receiving funds under the Indian Self-Determination and Education Assistance Act or the Tribally Controlled Schools Act?
              (a) The Bureau of Indian Affairs must compile a list of all authorized positions which involve regular contact with or control over Indian children; investigate the character of each individual who is employed, or is being considered for employment; and, prescribe minimum standards of character which each individual must meet to be appointed to such positions.
              (b) All Indian tribes or tribal organizations receiving funds under the authority of the Indian Self-Determination and Education Assistance Act or the Tribally Controlled Schools Act of 1988 must conduct a background investigation for individuals whose duties and responsibilities would allow them regular contact with or control over Indian children, and employ only individuals who meet standards of character that are no less stringent than those prescribed for the Bureau of Indian Affairs.

              § 63.14
              What positions require a background investigation and determination of suitability for employment or retention?
              All positions that allow an applicant, employee, or volunteer regular contact with or control over Indian children are subject to a background investigation and determination of suitability for employment.

              § 63.15
              What questions should an employer ask?
              Employment applications must:

              (a) Ask whether the applicant, volunteer, or employee has been arrested or convicted of a crime involving a child, violence, sexual assault, sexual molestation, sexual exploitation, sexual contact or prostitution, or crimes against persons;

              (b) Ask the disposition of the arrest or charge;
              (c) Require that an applicant, volunteer or employee sign, under penalty of perjury, a statement verifying the truth of all information provided in the employment application; and
              (d) Inform the applicant, volunteer or employee that a criminal history record check is a condition of employment and require the applicant, volunteer or employee to consent, in writing, to a record check.

              § 63.16
              Who conducts the background investigation and prepares the determination of suitability for employment?
              (a) The Bureau of Indian Affairs must use the United States Office of Personnel Management (OPM) to conduct background investigations for Federal employees. The BIA must designate qualified security personnel to adjudicate the results of background investigations.
              (b) Indian tribes and tribal organizations may conduct their own background investigations, contract with private firms, or request the OPM to conduct an investigation. The investigation should cover the past five years of the individual's employment, education, etc.

              § 63.17
              How does an employer determine suitability for employment and efficiency of service?
              (a) Adjudication is the process employers use to determine suitability for employment and efficiency of service. The adjudication process protects the interests of the employer and the rights of applicants and employees. Adjudication requires uniform evaluation to ensure fair and consistent judgment.
              (b) Each case is judged on its own merits. All available information, both favorable and unfavorable, must be considered and assessed in terms of accuracy, completeness, relevance, seriousness, overall significance, and how similar cases have been handled in the past.
              (c) An adjudicating official conducts the adjudication. Each Federal agency, Indian tribe, or tribal organization must appoint an adjudicating official, who must first have been the subject of a favorable background investigation.
              (1) Indian tribes and tribal organizations must ensure that persons charged with the responsibility for adjudicating employee background investigations are well-qualified and trained.
              (2) Indian tribes and tribal organizations should also ensure that individuals who are not trained to adjudicate these types of investigations are supervised by someone who is experienced and receive the training necessary to perform the task.
              (d) Each adjudicating official must be thoroughly familiar with all laws, regulations, and criteria involved in making a determination for suitability.
              (e) The adjudicating official must review the background investigation to determine the character, reputation, and trustworthiness of the individual. At a minimum, the adjudicating official must:
              (1) Review each security investigation form and employment application and compare the information provided;
              (2) Review the results of written record searches requested from local law enforcement agencies, former employers, former supervisors, employment references, and schools; and
              (3) Review the results of the fingerprint charts maintained by the Federal Bureau of Investigation or other law enforcement information maintained by other agencies.
              (f) Relevancy is a key objective in evaluating investigative data. The adjudicating official must consider prior conduct in light of:
              (1) The nature and seriousness of the conduct in question;
              (2) The recency and circumstances surrounding the conduct in question;
              (3) The age of the individual at the time of the incident;
              (4) Societal conditions that may have contributed to the nature of the conduct;
              (5) The probability that the individual will continue the type of behavior in question; and,
              (6) The individual's commitment to rehabilitation and a change in the behavior in question.

              § 63.18
              Are the requirements for Bureau of Indian Affairs adjudication different from the requirements for Indian tribes and tribal organizations?
              Yes.

              (a) In addition to the minimum requirements for background investigations found in § 63.12, Bureau of Indian Affairs' adjudicating officials must review the OPM National Agency Check and Inquiries which includes a search of the OPM Security/Suitability Investigations Index (SII) and the Defense Clearance and Investigations Index (DCII), and any additional standards which may be established by the BIA.
              (b) All Bureau of Indian Affairs employees who have regular contact with or control over Indian children must be reinvestigated every five years during their employment in that or any other position which allows regular contact with or control over Indian children.
              (c) Indian tribes and tribal organizations may adopt these additional requirements but are not mandated to do so by law.

              § 63.19
              When should an employer deny employment or dismiss an employee?
              (a) An employer must deny employment or dismiss an employee when an individual has been found guilty of or entered a plea of guilty or nolo contendere to any Federal, state or tribal offense involving a crime of violence, sexual assault, sexual molestation, child exploitation, sexual contact, prostitution, or crimes against persons.
              (b) An employer may deny employment or dismiss an employee when an individual has been convicted of an offense involving a child victim, a sex crime, or a drug felony.
              [61 FR 32274, June 21, 1996, as amended at 64 FR 66771, Nov. 30, 1999]

              § 63.20
              What should an employer do if an individual has been charged with an offense but the charge is pending or no disposition has been made by a court?
              (a) The employer may deny the applicant employment until the charge has been resolved.
              (b) The employer may deny the employee any on-the-job contact with children until the charge is resolved.
              (c) The employer may detail or reassign the employee to other duties that do not involve contact with children.
              (d) The employer may place the employee on administrative leave until the court has disposed of the charge.

              § 63.21
              Are there other factors that may disqualify an applicant, volunteer or employee from placement in a position which involves regular contact with or control over Indian children?
              Yes.
              (a) An applicant, volunteer, or employee may be disqualified from consideration or continuing employment if it is found that:
              (1) The individual's misconduct or negligence interfered with or affected a current or prior employer's performance of duties and responsibilities.
              (2) The individual's criminal or dishonest conduct affected the individual's performance or the performance of others.
              (3) The individual made an intentional false statement, deception or fraud on an examination or in obtaining employment.
              (4) The individual has refused to furnish testimony or cooperate with an investigation.
              (5) The individual's alcohol or substance abuse is of a nature and duration that suggests the individual could not perform the duties of the position or would directly threaten the property or safety of others.
              (6) The individual has illegally used narcotics, drugs, or other controlled substances without evidence of substantial rehabilitation.
              (7) The individual knowingly and willfully engaged in an act or activities designed to disrupt government programs.
              (b) An individual must be disqualified for Federal employment if any statutory or regulatory provision would prevent his/her lawful employment.

              § 63.22
              Can an employer certify an individual with a prior conviction or substantiated misconduct as suitable for employment?
              (a) The Bureau of Indian Affairs must use Federal adjudicative standards which allow the BIA to certify that an individual is suitable for employment in a position that does not involve regular contact with or control over Indian children. The adjudicating officer must determine that the individual's prior conduct will not interfere with the performance of duties and will not create a potential for risk to the safety and well-being of Indian children.
              (b) Indian tribes and tribal organizations must identify those positions which permit contact with or control over Indian children and establish standards to determine suitability for employment. Those standards should then be used to determine whether an individual is suitable for employment in a position that permits contact with or control over Indian children. If not, the individual may only be placed in a position that does not permit contact with or control over Indian children.

              § 63.23
              What rights does an applicant, volunteer or employee have during this process?
              (a) The applicant, volunteer, or employee must be provided an opportunity to explain, deny, or refute unfavorable and incorrect information gathered in an investigation, before the adjudication is final. The applicant, volunteer, or employee should receive a written summary of all derogatory information and be informed of the process for explaining, denying, or refuting unfavorable information.
              (b) Employers and adjudicating officials must not release the actual background investigative report to an applicant, volunteer, or employee. However, they may issue a written summary of the derogatory information.
              (c) The applicant, volunteer, or employee who is the subject of a background investigation may obtain a copy of the reports from the originating (Federal, state, or other tribal) agency and challenge the accuracy and completeness of any information maintained by that agency.
              (d) The results of an investigation cannot be used for any purpose other than to determine suitability for employment in a position that involves regular contact with or control over Indian children.
              (e) Investigative reports contain information of a highly personal nature and should be maintained confidentially and secured in locked files. Investigative reports should be seen only by those officials who in performing their official duties need to know the information contained in the report.

              § 63.24
              What protections must employers provide to applicants, volunteers and employees?
              (a) Indian tribes and tribal organizations must comply with the privacy requirements of any Federal, state, or other tribal agency providing background investigations. Indian tribes and tribal organizations must establish and comply with personnel policies that safeguard information derived from background investigations.
              (b) The Bureau of Indian Affairs must comply with all policies, procedures, criteria, and guidance contained in the Bureau of Indian Affairs Manual or other appropriate guidelines.
              (c) Federal agencies exercising authority under this part by delegation from OPM must comply with OPM policies, procedures, criteria, and guidance.

              §§ 63.25-63.29
              [Reserved]

            Subpart C—Indian Child Protection and Family Violence Prevention Program

              § 63.30
              What is the purpose of the Indian child protection and family violence prevention program?
              The purpose of this program is to develop tribally-operated programs to protect Indian children and reduce the incidence of family violence on Indian reservations.

              § 63.31
              Can both the Bureau of Indian Affairs and tribes operate Indian child protection and family violence prevention programs?

              Yes. However, tribes are encouraged to develop and operate programs to protect Indian children and reduce the incidence of family violence in Indian country.

              § 63.32
              Under what authority are Indian child protection and family violence prevention program funds awarded?

              The Secretary is authorized to enter into contracts with Indian tribes, tribal organizations, or tribal consortia pursuant to the Indian Self-Determination and Education Assistance Act, as amended, 25 U.S.C. 450 et seq., for the development and establishment of Indian child protection and family violence prevention programs. This includes compacting with tribes under the Self-Governance program procedures.

              § 63.33
              What must an application for Indian child protection and family violence prevention program funds include?

              In addition to the Indian Self-Determination and Education Assistance Act, as amended, 25 U.S.C. 450 et seq., contracting requirements, each application must provide the following information:
              (a) The name and address of the agency or official to be responsible for the investigation of reported cases of child abuse and child neglect, the treatment and prevention of incidents of family violence, and the provision of immediate shelter and related assistance for victims of family violence and their dependents;
              (b) Projected service population of the program;
              (c) Projected service area of the program; and
              (d) Projected number of cases per month.

              § 63.34
              How are Indian child protection and family violence prevention program funds distributed?
              (a) Funds will be distributed, subject to the availability of appropriations, and:
              (1) In any fiscal year that the appropriation exceeds 50 percent of the level of funding authorized for this purpose by the Act, 49 percent must be distributed equally to all tribes and tribal organizations and 49 percent must be distributed on a per capita basis according to the population of children residing in the service area. Two percent of the annual appropriation will be set aside for distribution to tribes demonstrating special circumstances.
              (2) In any fiscal year that the appropriation does not exceed 50 percent of the level of funding authorized for this purpose by the Act, funding must be distributed in equal amounts to all tribes. Two percent of the annual appropriation will be set aside for distribution to tribes demonstrating special circumstances.
              (3) Special circumstances include but are not limited to a high incidence of child sexual abuse, a high incidence of violent crimes, a high incidence of violent crimes against women, or the existence of a significant victim population within the community.
              (i) This 2 percent will be subject to discretionary distribution by the Assistant Secretary—Indian Affairs, or his or her designee. Tribes may request these funds through their respective area offices. All requests must demonstrate a high incidence of child sexual abuse, a high incidence of violent crimes, a high incidence of violent crimes against women, or the existence of a significant victim population within the community.
              (ii) Special circumstances funds will remain available through the third quarter of each fiscal year. In the fourth quarter, unallocated special circumstances funds will be redistributed as set forth in paragraphs (a)(1) and (a)(2) of this section, except that there will be no additional set aside for special circumstances.
              (b) Any tribe not wishing to receive Indian child protection and family violence prevention funds must inform its respective area office in writing within 90 days after receiving notice of the allocation from the area office. Each area office may reallocate unused Indian child protection and family violence prevention program funds as provided in this section.

              (c) Funds may be used as matching shares for other federally funded programs which contribute to and promote prevention of child abuse, child neglect, and family violence on Indian reservations, but may not be used to supplant funds available for the same general purposes.

              (d) Any income resulting from the operation of Indian child protection and family violence prevention programs may be retained and used to promote prevention of child abuse, child neglect, and family violence on Indian reservations.

              § 63.35
              How may Indian child protection and family violence prevention program funds be used?
              Indian child protection and family violence prevention program funds may be used to:
              (a) Establish child protective services programs.
              (b) Establish family violence prevention and treatment programs.
              (c) Develop and implement multidisciplinary child abuse investigation and prosecution programs.
              (d) Provide immediate shelter and related assistance to victims of family violence and their dependents, including construction or renovation of facilities to establish family violence shelters.
              (e) Purchase equipment to assist in the investigation of cases of child abuse and child neglect.
              (f) Develop protocols and intergovernmental or interagency agreements among tribal, Federal, state law enforcement, courts of competent jurisdiction, and related agencies to ensure investigations of child abuse cases to minimize the trauma to the child victim, to define and specify each party's responsibilities, and to provide for the coordination of services to victims and their families.
              (g) Develop child protection codes and regulations that provide for the care and protection of children and families on Indian reservations.
              (h) Establish community education programs for tribal members and school children on issues of family violence, child abuse, and child neglect.
              (i) Establish training programs for child protective services, law enforcement, judicial, medical, education, and related services personnel in the investigation, prevention, protection, and treatment of child abuse, child neglect, and family violence.
              (j) Establish other innovative and culturally relevant programs and projects that show promise of successfully preventing and treating family violence, child abuse, and child neglect.

              § 63.36
              What are the special requirements for Indian child protection and family violence prevention programs?
              (a) Each tribe must develop appropriate standards of service, including caseload standards and staffing requirements. The following caseload standards and staffing requirements are comparable to those recommended by the Child Welfare League of America, and are included to assist tribes in developing standards for Indian child protection and family violence prevention programs:
              (1) Caseworkers providing services to abused and neglected children and their families have a caseload of 20 active ongoing cases and five active investigations per caseworker.
              (2) Caseworkers providing services to strengthen and preserve families with children have a caseload of 20 families. If intensive family-centered crisis services are provided, a caseload of 10 families per caseworker is recommended.
              (3) It is recommended that there be one supervisor for every six caseworkers.
              (b) The negotiation and award of contracts, grants, or funding agreements under these regulations must include the following requirements:
              (1) Performance of background investigations to ensure that only those individuals who meet the standards of character contained in § 63.12 are employed in positions which involve regular contact with or control over Indian children.
              (2) Submission of an annual report to the contracting officer's representative which details program activities, number of children and families served, and the number of child abuse, child neglect, and family violence reports received.

              (3) Assurance that the identity of any person making a report of child abuse or child neglect will not be disclosed without the consent of the individual and that all reports and records collected under these regulations are confidential and to be disclosed only as provided by Federal or tribal law.

              (4) Assurance that persons who, in good faith, report child abuse or child neglect will not suffer retaliation from their employers.

              §§ 63.37-63.50
              [Reserved]

          Pt. 67
          PART 67—PREPARATION OF A ROLL OF INDEPENDENT SEMINOLE INDIANS OF FLORIDA

            Sec.
            67.1
            Definitions.
            67.2
            Purpose.
            67.3
            Information collection.
            67.4
            Qualifications for enrollment and the deadline for filing application forms.
            67.5
            Notices.
            67.6
            Application forms.
            67.7
            Filing of application forms.
            67.8
            Burden of proof.
            67.9
            Action by Superintendent.
            67.10
            Appeals.
            67.11
            Decision of the Area Director on appeals.
            67.12
            Exhaustion of administrative remedies.
            67.13
            Preparation, certification and approval of the roll.
            67.14
            Preparation of a per capita payment roll.
            67.15
            Special instructions.

            Authority:
            5 U.S.C. 301; 25 U.S.C. 2 and 9; and Pub.L. 101-277, 104 Stat. 143.

            Source:
            59 FR 3291, Jan. 20, 1994, unless otherwise noted.

            § 67.1
            Definitions.
            As used in this part:

              Act means the Act of Congress approved April 30, 1990, Public Law 101-277, 104 Stat. 143, which authorizes the use and distribution of funds awarded the Seminole Indians in Dockets 73, 151, and 73-A of the Indian Claims Commission.

              Adopted person means a person whose natural parents' parental rights have been terminated by court order and persons other than the natural parents have exercised or do exercise parental rights with regard to the adopted person.

              Applicant means a person who is making application for inclusion on the roll prepared by the Secretary pursuant to the Act of April 30, 1990, by either personally filing an application or by having a sponsor complete and file an application on his or her behalf.

              Assistant Secretary means the Assistant Secretary for Indian Affairs or authorized representative.

              BIA means the Bureau of Indian Affairs, Department of the Interior.

              Commissioner means the Commissioner of Indian Affairs or authorized representative.

              Director means the Area Director, Eastern Area Office, Bureau of Indian Affairs or authorized representative.

              Lineal descendant(s) means those persons who are the issue of the ancestor through whom enrollment rights are claimed; namely, the children, grandchildren, etc. It does not include collateral relatives such as brothers, sisters, nieces, nephews, cousins, etc., or adopted children, adopted grandchildren, etc.

              Living means born on or before and alive on the date specified.

              Secretary means the Secretary of the Interior or authorized representative.

              Sponsor means any person who files an application for enrollment or an appeal on behalf of another person.

              Superintendent means the Superintendent, Seminole Agency, Bureau of Indian Affairs or authorized representative.

            § 67.2
            Purpose.
            The regulations in this part govern the compilation of a roll of persons who meet the requirements specified in section 7 of the Act who will be eligible to share in the distribution of a portion of the judgment funds awarded the Seminole Indians in Dockets 73, 151, and 73-A of the Indian Claims Commission.

            § 67.3
            Information collection.

            The information collection requirement contained in this part does not require approval by the Office of Management and Budget under 44 U.S.C. 3501 et seq.

            § 67.4
            Qualifications for enrollment and the deadline for filing application forms.
            (a) The roll shall contain the names of persons of Seminole Indian descent who:

            (1) Were born on or before, and living on April 30, 1990;

            (2) Are listed on or who are lineal descendants of persons listed on the annotated Seminole Agency Census of 1957 as Independent Seminoles; and

            (3) Are not members of an Indian tribe recognized by the Secretary on the most recent list of such Indian tribes published in the Federal Register.

            (b) To qualify for enrollment, all persons must file application forms with the Superintendent, Seminole Agency, Bureau of Indian Affairs, 6075 Stirling Road, Hollywood, Florida 33024 by June 19, 1994. An application filed after June 19, 1994 will be rejected for failure to file on time regardless of whether the applicant otherwise meets the qualifications for enrollment.

            § 67.5
            Notices.
            (a) The Director shall give notice to all Area Directors of the BIA and all Superintendents within the jurisdiction of the Director of the preparation of the roll for public display in BIA field offices. Notices shall be placed for public display in community buildings, tribal buildings and Indian centers.
            (b) The Superintendent shall, on the basis of available residence data, publish, and republish when advisable, notices of the preparation of the roll in appropriate localities utilizing media suitable to the circumstances.
            (c) Notices shall advise of the preparation of the roll and the relevant procedures to be followed, including the qualifications for enrollment and the deadline for filing application forms to be eligible for enrollment. The notices shall also state how and where application forms may be obtained, as well as the name, address, and telephone number of a person who may be contacted for further information.

            § 67.6
            Application forms.
            (a) Application forms to be filed by or for applicants for enrollment shall be furnished by the Area Director, Superintendent, or other designated persons upon written or oral request. Each person furnishing application forms shall keep a record of the names of individuals to whom forms are given, as well as the control numbers of the forms and the date furnished. Instructions for completing and filing application forms shall be furnished with each form. The form shall indicate prominently the deadline date for filing application forms.
            (b) Among other information, each application form shall contain:
            (1) Certification as to whether the application form is for a natural child or an adopted child of the parent through whom eligibility is claimed.
            (2) If the application form is filed by a sponsor, the name and address of the sponsor and the sponsor's relationship to the applicant.
            (3) A control number for the purpose of keeping a record of forms furnished to interested individuals.
            (4) Certification that the information given on the application form is true to the best of the knowledge and belief of the person filing the application. Criminal penalties are provided by statute for knowingly filing false information in such applications (18 U.S.C. 1001).
            (5) An election by the applicant as to whether the applicant, if determined to meet the qualifications for enrollment, wishes to share in the per capita payment.
            (c) Sponsors may file application forms on behalf of other persons, but may not file elections to share in the per capita payment.
            (1) The election to share in the per capita payment shall be made as follows:
            (i) If the applicant is a competent adult, the election shall be made by the applicant.
            (ii) If the applicant is not a competent adult, the election shall be made by the applicant's legal guardian.
            (iii) If the applicant is a minor, the election shall be made by the applicant's parent or legal guardian.
            (2) When an application is filed by a sponsor, the Superintendent shall:
            (i) Furnish the sponsor a copy of the application for forwarding to the applicant or his/her guardian for completion of the election to share in the per capita payment; and

            (ii) Make a reasonable effort to furnish a copy of the application directly to the applicant or his/her guardian for completion of the election to share in the per capita payment.

            (d) Every applicant or sponsor shall furnish the applicant's mailing address on the application form. Thereafter, the applicant or sponsor shall promptly notify the Superintendent of any change in address, giving appropriate identification of the applicant. Otherwise, the mailing address as stated on the application form shall be accepted as the address of record for all purposes under the regulations in this part.

            § 67.7
            Filing of application forms.
            (a) Application forms filed by mail must be postmarked no later than midnight on the deadline date specified in § 67.4(b). Where there is no postmark date showing on the envelope or the postmark date is illegible, application forms mailed from within the United States, including Alaska and Hawaii, received more than 15 days after the specified deadline, and application forms mailed from outside of the United States received more than 30 days after the specified deadline in the office of the Superintendent, will be rejected for failure to file in time.
            (b) Application forms filed by personal delivery must be received in the office of the Superintendent no later than close of business on the deadline date specified in § 67.4(b).
            (c) If the deadline date for filing application forms falls on a Saturday, Sunday, legal holiday, or other nonbusiness day, the deadline will be the next working day thereafter.

            § 67.8
            Burden of proof.
            The burden of proof rests upon the applicant to establish eligibility for enrollment. Documentary evidence such as birth certificates, death certificates, baptismal records, copies of probate findings, or affidavits may be used to support claims of eligibility for enrollment. Records of the BIA may be used to establish eligibility.

            § 67.9
            Action by Superintendent.
            (a) The Superintendent shall notify each individual applicant or sponsor, as applicable, upon receipt of an application. The Superintendent shall consider each application and all documentation. Upon determining an individual's eligibility, the Superintendent shall notify the individual; the parent or guardian having legal custody of a minor or incompetent adult; or the sponsor, as applicable.
            (1) Written notification of the Superintendent's decision shall be sent to the applicant by certified mail, for receipt by the addressee only, return receipt requested.
            (2) If a decision by the Superintendent is sent out of the United States, registered mail will be used. If a certified or registered notice is returned as “Unclaimed,” the Superintendent shall remail the notice by regular mail together with an acknowledgment of receipt form to be completed by the addressee and returned to the Superintendent. If the acknowledgment of receipt is not returned, computation of the period specified for changes in election and for appeals shall begin on the date the notice was remailed. A certified or registered notice returned for any reason other than “Unclaimed” need not be remailed.
            (3) If an individual files an application on behalf of more than one person, one notice of eligibility or adverse action may be addressed to the person who filed the applications. However, the notice must list the name of each person to whom the notice is applicable. Where an individual is represented by a sponsor, notification to the sponsor of eligibility or adverse action shall be considered notification to the individual.
            (b) On the basis of an applicant's election with regard to whether he or she wishes to share in the per capita payment, the Superintendent's decision shall also state whether the applicant's name will be included on the per capita payment roll. If no election has been made by the applicant, parent, or legal guardian on the application form, the individual applicant's name will not be included on the per capita payment roll.

            (1) The eligible individual will have 30 days from notification of his or her eligibility in which to request a change in the election of whether to share in the per capita payment. Computation of the 30-day period will be in accordance with § 67.9(a)(2) and § 67.9(d). Upon written request received within the 30-day period, to avoid hardship or gross injustice, the Superintendent may grant an applicant additional time, not to exceed 30 days, in which to submit a request for a change in election.
            (2) A change in the election of whether to share in the per capita payment can only be made by competent adult applicants; by the legal guardian of an incompetent adult; or, in the case of a minor, by the minor's parent or legal guardian.
            (c) If the Superintendent determines that an applicant is not eligible for enrollment as an Independent Seminole Indian of Florida, the Superintendent shall notify the applicant of the decision and shall fully explain the reasons for the adverse action and explain the rejected applicant's right to appeal to the Area Director. The decision of the Area Director shall be final and conclusive.
            (d) Except as provided in paragraph (a)(2) of this section, a notice of adverse action concerning an individual's enrollment eligibility or the inclusion or exclusion of an individual's name on the per capita payment roll is considered to have been made, and computation of the period for appeal shall begin on the earliest of the following dates:
            (1) Delivery date indicated on the return receipt;
            (2) Date of acknowledgment of receipt;
            (3) Date of personal delivery; or
            (4) Date of return by the post office of an undelivered certified or registered letter.
            (e) To avoid hardship or gross injustice, the Area Director or the Superintendent may waive technical deficiencies in application forms or other submittals. Failure to file by the deadline date does not constitute a technical deficiency.

            § 67.10
            Appeals.
            (a) Appeals from or on behalf of applicants who have been rejected for enrollment must be in writing and must be filed pursuant to part 62 of this chapter. When the appeal is on behalf of more than one person, the name of each person must be listed in the appeal.
            (b) A copy of part 62 of this chapter shall be furnished with each notice of adverse action. All sections of part 62 shall be applicable to appeals filed under this part except §§ 62.10, 62.11 and 62.12.

            § 67.11
            Decision of the Area Director on appeals.
            (a) The Area Director will consider the record as presented, together with such additional information as may be considered pertinent. Any additional information relied upon shall be specifically identified in the decision.
            (b) The decision of the Area Director on an appeal shall be final and conclusive, and written notice, which shall state that the decision is final and conclusive, shall be given to the individual applicant, parent, legal guardian, or sponsor, as applicable.
            (c) If an individual files an appeal on behalf of more than one applicant, one notice of the Area Director's decision may be addressed to the person who filed the appeal. The Area Director's decision must list the name of each person to whom the decision is applicable. Where an individual applicant is represented by a sponsor, notification to the sponsor of the Area Director's decision is sufficient.
            (d) Written notice of the Area Director's decision on the appeal shall be sent to the applicant by certified mail, to be received by the addressee only, return receipt requested.
            (1) On the basis of the individual's election with regard to whether he or she wishes to share in the per capita payment, the Area Director's decision shall also state whether the individual's name will be included on the per capita payment roll. If no election is made by the individual applicant, parent, or legal guardian, the individual's name will not be included on the per capita payment roll.

            (2) The eligible individual will have 30 days from notification of his or her eligibility in which to request a change in the election of whether to share in the per capita payment. Computation of the 30-day period will be in accordance with § 67.9(a)(2) and § 67.9(d). Upon written request received within the 30-day period, to avoid hardship or gross injustice, the Area Director may grant additional time, not to exceed 30 days, in which to submit a request for a change in election.

            (3) The change in the election of whether to share in the per capita payment can only be made by adult applicants, or by the legal guardian of an incompetent adult, or in the case of minors, by the parents or legal guardian of such minors.

            § 67.12
            Exhaustion of administrative remedies.
            The decision of the Area Director on appeal, which shall be final for the Department, is subject to judicial review under 5 U.S.C. 704.

            § 67.13
            Preparation, certification and approval of the roll.
            (a) The Superintendent shall prepare a minimum of three (3) copies of the roll of those persons determined to be qualified for enrollment as an Independent Seminole Indian of Florida. The roll shall contain for each person a roll number or identification number, name, address, sex, date of birth, date of death (when applicable), and the name and relationship of the ancestor on the annotated Seminole Agency Census of 1957 through whom eligibility for enrollment was established.
            (b) A certificate shall be attached to the roll by the Superintendent certifying that to the best of his or her knowledge and belief, the roll contains only the names of those persons who were determined to meet the qualifications for enrollment.
            (c) The Area Director shall approve the roll.

            § 67.14
            Preparation of a per capita payment roll.
            (a) The Superintendent shall, based on the roll approved under § 67.12(c), prepare a per capita payment roll. The payment roll shall be comprised of those persons whose names appear on the approved roll and who have elected to share in the per capita payment.
            (b) The per capita payment roll shall contain for each person a roll number or identification number, name, and address.
            (c) The Area Director shall authorize the distribution of the judgment funds to those persons named on the per capita payment roll.

            § 67.15
            Special instructions.
            To facilitate the work of the Superintendent and Area Director, the Assistant Secretary may issue special instructions not inconsistent with the regulations in this part.

          Pt. 75
          PART 75—REVISION OF THE MEMBERSHIP ROLL OF THE EASTERN BAND OF CHEROKEE INDIANS, NORTH CAROLINA

            Sec.
            75.1
            Definitions.
            75.2
            Purpose.
            75.3
            Announcement of revision of roll.
            75.4
            Basic membership roll.
            75.5
            Removal of deceased persons from the roll.
            75.6
            Additions to the roll.
            75.7
            Applications for enrollment.
            75.8
            Applications for minors and incompetents.
            75.9
            Application form.
            75.10
            Where application forms may be obtained.
            75.11
            Proof of relationship.
            75.12
            Enrollment Committee.
            75.13
            Tenure of Enrollment Committee.
            75.14
            Appeals.
            75.15
            Current membership roll.
            75.16
            Eligibility for enrollment of persons born after August 21, 1957.
            75.17
            Relinquishment of membership.
            75.18
            Adoption.
            75.19
            Distribution of judgment funds.

            Authority:
            Sec. 2, 71 Stat. 374.

            Source:
            24 FR 201, Jan. 8, 1959, unless otherwise noted. Redesignated at 47 FR 13327, Mar. 30, 1982.

            § 75.1
            Definitions.
            As used in this part:
            (a) Band means the Eastern Band of Cherokee Indians in North Carolina.
            (b) Reservation means the lands of the Eastern Band of Cherokee Indians in the counties of Jackson, Swain, Graham, Cherokee and Haywood in North Carolina.
            (c) Tribal Council means the Tribal Council of the Eastern Band of Cherokee Indians in North Carolina.
            (d) Announcement means the announcement of the revision of the membership roll issued as required in § 75.3.
            (e) Tribal Enrollment Office means the Tribal Enrollment Clerk working in concert with the Enrollment Committee.
            (f) Tribal Enrollment Clerk means the individual working in the Tribal Enrollment Office.
            (g) Enrollment Committee means the three individuals appointed by the Tribal Council in accordance with § 75.12.
            [24 FR 201, Jan. 8, 1959, as amended at 25 FR 2516, Mar. 25, 1960; 38 FR 9998, Apr. 23, 1973. Redesignated at 47 FR 13327, Mar. 30, 1982]

            § 75.2
            Purpose.
            The regulations in this part are to govern the revision, as authorized by the Act approved August 21, 1957 (71 Stat. 374), of the membership roll of the Eastern Band of Cherokee Indians, North Carolina, prepared and approved in accordance with the Act of June 4, 1924 (43 Stat. 376), and the Act of March 4, 1931 (46 Stat. 1518).

            § 75.3
            Announcement of revision of roll.
            When the Tribal Council has authorized the expenditure of tribal funds to supply sufficient staff to perform the work necessary to revise the membership roll of the Band and such staff has been employed and when the application forms and other necessary documents have been devised and printed, the Principal Chief, or in his absence the Vice Chief or the Chairman of the Tribal Council shall announce that a revision of the membership roll of the Band shall commence on a specified date. The date specified shall be not less than 15 days nor more than 30 days from the date of issuance of the announcement. A press release should be prepared announcing the date the revision of the roll shall begin, together with other pertinent information such as the membership requirements and where application forms may be obtained. The press release should be distributed to all newspapers and radio stations within the region of the Reservation with a request that it be given wide publicity. Copies of the press release should also be posted in the Agency Office and at various other public places throughout the Reservation as well as in Post Offices of the towns adjacent to the Reservation.

            § 75.4
            Basic membership roll.
            All persons whose names appear on the roll of the Eastern Band of Cherokee Indians of North Carolina, prepared and approved pursuant to the act of June 4, 1924 (43 Stat. 376), and the act of March 4, 1931 (46 Stat. 1518), shall be members of the Band.

            § 75.5
            Removal of deceased persons from the roll.
            The name of any person who was not alive as of midnight August 21, 1957, shall be stricken from the basic membership roll by the Tribal Enrollment Office upon receipt of a death certificate or other evidence of death acceptable to the Tribal Enrollment Office.
            [38 FR 9998, Apr. 23, 1973. Redesignated at 47 FR 13327, Mar. 30, 1982]

            § 75.6
            Additions to the roll.
            There shall be added to the roll of the Band the names of persons living on August 21, 1957, who meet the following qualifications:
            (a) Persons born during the period, beginning on or after June 4, 1924, and ending midnight August 21, 1957, who are direct descendants of persons whose names appear on the roll prepared and approved pursuant to the act of June 4, 1924 (43 Stat. 376), and the act of March 4, 1931 (46 Stat. 1518); provided, such persons:
            (1) Who applied for membership before August 14, 1963 possess at least 1/32 degree of Eastern Cherokee Indian blood, and those persons who apply for membership on or after August 14, 1963, possess at least 1/16 degree Eastern Cherokee Indian blood, except that persons who also possess Indian blood of another tribe shall not be enrolled if they are enrolled as members of the other tribe.

            (2) Have themselves or have parents who have maintained and dwelt in a home at sometime during the period from June 4, 1924, through August 21, 1957, on the lands of the Eastern Band of Cherokee Indians in the counties of Swain, Jackson, Graham, Cherokee and Haywood in North Carolina, except that this specific part of this section shall not apply to those persons and members of their families who were temporarily away from the Reservation due to one or both parents being in the U.S. Armed Services or who were employed by the U.S. Government and neither shall it apply to those individuals who were in mental or penal institutions during this period of time.
            (3) Have filed an application for enrollment with the Band in accordance with the procedures set forth in this part.
            (b) A child born out of wedlock to a mother who is either an enrolled member of the Band, or who meets the qualifications for enrollment as a member, may be enrolled if such child otherwise meets the requirements for enrollment as set forth in this section.
            (c) A child born out of wedlock to a mother who is not a member of the Band may be enrolled if the mother files with the Enrollment Committee proof established in accordance with the laws of North Carolina as to the paternity of the child and the person adjudged to be the father is either an enrolled member of the Band, or meets the requirements for enrollment as a member, and if the child otherwise meet the requirements for enrollment as set forth in this section.
            [24 FR 201, Jan. 8, 1959, as amended at 25 FR 2516, Mar. 25, 1960; 28 FR 8314, Aug. 14, 1963. Redesignated at 47 FR 13327, Mar. 30, 1982]

            § 75.7
            Applications for enrollment.
            Each adult person who believes he meets the requirements for enrollment established herein may submit to the Tribal Enrollment Office an application for enrollment as a member of the Eastern Band of Cherokee Indians.
            [38 FR 9998, Apr. 23, 1973. Redesignated at 47 FR 13327, Mar. 30, 1982]

            § 75.8
            Applications for minors and incompetents.
            Applications for enrollment of minors may be filed by the parent, next of kin, recognized guardian, or other person responsible for their care. Applications for enrollment of persons known to be in mental or penal institutions may be filed by the Principal Chief of the Eastern Band of Cherokee.
            [38 FR 9998, Apr. 23, 1973. Redesignated at 47 FR 13327, Mar. 30, 1982]

            § 75.9
            Application form.
            The form of application for enrollment will be prepared by the Tribal Enrollment Office and, in addition to whatever information the Enrollment Committee may deem necessary, shall contain the following:
            (a) The name and address of the applicant. If the application is filed on behalf of a minor, the name and address of the person filing the application and his relationship to the minor.
            (b) The name, relationship, tribe and roll number of the ancestor or ancestors through whom enrollment rights are claimed, and whether applicant is enrolled with another tribe.
            (c) The date of death of such ancestor, if deceased.
            [38 FR 9998, Apr. 23, 1973. Redesignated at 47 FR 13327, Mar. 30, 1982]

            § 75.10
            Where application forms may be obtained.
            Application forms will be supplied by the Tribal Enrollment Office of the Eastern Band of Cherokee Indians, Council House, Cherokee, N.C. 28719, upon request, either in person or by mail.
            [38 FR 9998, Apr. 23, 1973. Redesignated at 47 FR 13327, Mar. 30, 1982]

            § 75.11
            Proof of relationship.
            If the applicant's parents or other Eastern Cherokee ancestors through whom the applicant claims enrollment rights are unknown to the Tribal Enrollment Office, the Tribal Enrollment Office may request the applicant to furnish such additional information and evidence as it may deem necessary to determine the applicant's eligibility for enrollment. Failure of the applicant to furnish the information requested may be deemed sufficient cause for rejection.
            [38 FR 9998, Apr. 23, 1973. Redesignated at 47 FR 13327, Mar. 30, 1982]

            § 75.12
            Enrollment Committee.

            The Tribal Council shall appoint either from within or without the membership of the Council, but not from without the membership of the Band, a committee of three (3) persons to serve as the Enrollment Committee. The Enrollment Committee shall review all applications for enrollment filed in accordance with the existing regulations, and shall determine the qualifications of the applicant for enrollment with the Band. The Enrollment Committee may perform such other functions relating to the enrollment and membership in the Band as the Tribal Council may from time to time direct.
            [38 FR 9999, Apr. 23, 1973. Redesignated at 47 FR 13327, Mar. 30, 1982]

            § 75.13
            Tenure of Enrollment Committee.
            The members of the Enrollment Committee shall be appointed to serve a term of office of 2 years by each newly elected Tribal Council.
            [38 FR 9999, Apr. 23, 1973. Redesignated at 47 FR 13327, Mar. 30, 1982]

            § 75.14
            Appeals.

            Any person whose application for enrollment has been rejected by the Enrollment Committee shall have the right to appeal to the Tribal Council from the determination made by the Enrollment Committee: Provided, That such appeal shall be made in writing and shall be filed in the office of the Principal Chief for presentation to the Tribal Council within sixty (60) days from the date on which the Enrollment Committee issues notice to the applicant of his rejection. The applicant may submit with his appeal any additional data to support his claim to enrollment not previously furnished. The decision of the Tribal Council as to whether the applicant meets the requirements for enrollment set forth in this part shall be final. The Tribal Council shall review no applications for enrollment except in those cases where the rejected applicant appeals to the Council in writing from the determination made by the Enrollment Committee.
            [38 FR 9999, Apr. 23, 1973. Redesignated at 47 FR 13327, Mar. 30, 1982]

            § 75.15
            Current membership roll.
            The membership roll of the Eastern Band of Cherokee Indians shall be kept current by striking therefrom the names of persons who have relinquished their membership in the Band as provided in § 75.17 and of deceased persons upon receipt of a death certificate or other evidence of death acceptable to the Tribal Enrollment Office, and by adding thereto the names of individuals who meet the qualifications and are accepted for membership in the Band as set forth in this part.
            [38 FR 9999, Apr. 23, 1973. Redesignated at 47 FR 13327, Mar. 30, 1982]

            § 75.16
            Eligibility for enrollment of persons born after August 21, 1957.
            (a) Persons possessing one-sixteenth or more degree Eastern Cherokee Indian blood and born after August 21, 1957, may be enrolled in either of the following manners:
            (1) An application to have the person enrolled must be filed by or on behalf of the person by the parent or recognized guardian or person responsible for his care, which application shall be accompanied by the applicant's birth certificate or by other evidence of eligibility of the applicant for enrollment that the Tribal Enrollment Office may require.
            (2) In the absence of such application within 6 months after a person's birth, the Tribal Enrollment Office shall be authorized and encouraged to obtain evidence relating to the eligibility of the person for enrollment in the Eastern Band, and present an application in his behalf to the Enrollment Committee which may proceed to enroll the person if the evidence submitted meets the criteria.
            (b) A person adopted in accordance with applicable laws by either tribal members or nonmembers, shall be considered for enrollment as a tribal member if the person otherwise meets the requirements for enrollment.
            (c) A person born to an enrolled member of the Band and an enrolled member of another Tribe, and said person is enrolled in the other Tribe, may be transferred from the rolls of the other and added to the rolls of the Eastern Band if he meets the general requirements for enrollment and, in addition:

            (1) A death certificate or other acceptable evidence of the death of the parent enrolled in the other Tribe is received and the surviving parent who is a member of the Eastern Band makes application for enrollment by way of transfer.
            (2) Upon receipt of divorce documents in the Tribal Enrollment Office, there is evidence of custody of the minors being awarded to the parent who is a member of the Band and the parent awarded custody makes application for enrollment of the minors with the Eastern Band by way of transfer.
            (d) In order for a child to be enrolled under paragraph (b) or (c) of this section, either:
            (1) An application to have the child enrolled must be filed on behalf of the child by the parent or recognized guardian or person responsible for his care, which application shall be accompanied by the child's birth certificate or by other evidence as to the eligibility of the child for enrollment as the Enrollment Committee may require, which application must be filed within one year from the date of birth of such child, or
            (2) In the absence of such application, the Tribal Enrollment Committee may on its own motion, proceed to enroll any eligible child upon receipt by it of such evidence as shall satisfy the Committee as to the eligibility of the child to be enrolled, within one year from date of birth of such child.
            [28 FR 8315, Aug. 14, 1963, as amended at 29 FR 9326, July 8, 1964; 38 FR 9999, Apr. 23, 1973. Redesignated at 47 FR 13327, Mar. 30, 1982]

            § 75.17
            Relinquishment of membership.
            Any member of the Eastern Band of Cherokee Indians may relinquish his membership in the Band by filing notice in writing that he no longer desires to be enrolled as a member of the Band. On receipt of such notice the name of the members shall be stricken from the roll and he shall no longer be considered as a member of the Band and shall not be entitled to share in any use or in any distribution of tribal assets which may be made in the future to the enrolled members of the Band.

            § 75.18
            Adoption.
            The Tribal Council of the Eastern Band of Cherokee Indians shall be empowered to enact ordinances governing the adoption of new members.
            [39 FR 43391, Dec. 13, 1974. Redesignated at 47 FR 13327, Mar. 30, 1982]

            § 75.19
            Distribution of judgment funds.
            The membership roll of the Eastern Band of Cherokee Indians of North Carolina will be brought up to date as of October 10, 1974, to serve as the basis for distributing certain judgment funds awarded to the Band in Indian Claims Commission dockets 282-A through L.
            (a) Filing of and action on applications shall be in accordance with regulations in this part 75, except as otherwise provided in paragraphs (b) through (g) of this section.

            (b) In lieu of notice provisions contained in § 75.3, the Commissioner of Indian Affairs or his authorized representative shall provide notice of the bringing up to date of the membership roll through publication of these amended regulations in the Federal Register and through appropriate press releases and other public notices.
            (c) Application forms may be obtained from the Tribal Enrollment Office of the Eastern Band of Cherokee Indians, Council House, Cherokee, North Carolina 28719. Completed applications must be received by the Tribal Enrollment Office no later than midnight January 8, 1975.
            (d) Requests for applications for enrollment in the Band received after midnight of the deadline date will not be furnished until after the funds have been distributed.
            (e) In lieu of the procedures given in § 75.14, appeals from rejected applicants must be in writing and filed pursuant to part 62 of this subchapter, a copy of which shall be furnished with each notice of rejection.
            (f) The Tribal Council and the Superintendent shall attach separate statements to the roll certifying that to the best of their knowledge and belief, the roll contains only the names of those persons who were determined to meet the requirements for enrollment. The roll shall then be submitted through the Area Director to the Commissioner for approval.

            (g) To facilitate the work of the Tribal Enrollment Committee the Commissioner may issue special instructions not inconsistent with the regulations in this part 75.
            [39 FR 43391, Dec. 13, 1974. Redesignated at 47 FR 13327, Mar. 30, 1982]

          Pt. 81
          PART 81—SECRETARIAL ELECTION PROCEDURES

              Subpart A—Purpose and Scope
              Sec.
              81.1
              What is the purpose of this part?
              81.2
              When does this part apply?
              81.3
              Information collection.

              Subpart B—Definitions
              81.4
              What terms do I need to know?

              Subpart C—Provisions Applicable to All Secretarial Elections
              81.5
              What informal review is available to a tribe or petitioner when anticipating adopting or amending a governing document?
              81.6
              How is a Secretarial election requested?
              81.7
              What technical assistance will the Bureau provide after receiving a request for election?
              81.8
              What happens if a governing Federal statute and this part disagree?
              81.9
              Will the Secretary give deference to the Tribe's interpretation of its own documents?
              81.10
              Who may cast a vote in a Secretarial election?
              81.11
              May a tribe establish a voting age different from 18 years of age for Secretarial elections?
              81.12
              What type of electioneering is allowed before and during a Secretarial election?
              81.13
              What types of voting assistance are provided for a Secretarial election?
              81.14
              May Secretarial elections be scheduled at the same time as tribal elections?
              81.15
              How are conflicting proposals to amend a single document handled?
              81.16
              Who pays for holding the Secretarial election?
              81.17
              May a tribe use its funds to pay non-Federal election officials?
              81.18
              Who can withdraw a request for a Secretarial election?

              Subpart D—The Secretarial Election Process under the Indian Reorganization Act (IRA)
              81.19
              How does the Bureau proceed after receiving a request for a Secretarial election?
              81.20
              What is the first action to be taken by the Chair of the Election Board?
              81.21
              What are the responsibilities of the Secretarial Election Board in conducting a Secretarial election?
              81.22
              How is the Secretarial election conducted?
              81.23
              What documents are included in the Secretarial Election Notice Packet?
              81.24
              What information must be included on the Secretarial election notice?
              81.25
              Where will the Secretarial election notice be posted?
              81.26
              How does BIA use the information I provide on the registration form?
              81.27
              Must I re-register if I have already registered for a tribal or Secretarial election?
              81.28
              How do I submit my registration form?
              81.29
              Why does the Secretarial Election Board compile a Registered Voters List?
              81.30
              What information is contained in the Registered Voters List?
              81.31
              Where is the Registered Voters List posted?
              81.32
              May the Registered Voters List be challenged?
              81.33
              How does the Secretarial Election Board respond to challenges?
              81.34
              How are the official ballots prepared?
              81.35
              When must the Secretarial Election Board send ballots to voters?
              81.36
              What will the mailout or absentee ballot packet include?
              81.37
              How do I cast my vote at a polling site?
              81.38
              When are ballots counted?
              81.39
              How does the Board determine whether the required percentage of registered voters have cast ballots?
              81.40
              What happens if a ballot is spoiled before it is cast?
              81.41
              Who certifies the results of the Election?
              81.42
              Where are the results of the Election posted?
              81.43
              How are the results of the Election challenged?
              81.44
              What documents are sent to the Authorizing Official?
              81.45
              When are the results of the Secretarial election final?

              Subpart E—The Secretarial Election Process under the Oklahoma Indian Welfare Act (OIWA)
              81.46
              How does the Bureau proceed upon receiving a request for an OIWA Election if no provisions are contrary to applicable law?
              81.47
              How is the OIWA Secretarial election conducted?
              81.48
              When are the results of the OIWA Election final?

              Subpart F—Formulating Petitions to Request a Secretarial Election
              81.49
              What is the purpose of this subpart?
              81.50
              Who must follow these requirements?
              81.51
              How do tribal members circulate a petition to adopt or amend the tribe's governing document?
              81.52
              Who may initiate a petition?
              81.53
              Who may sign a petition?
              81.54
              Who is authorized to submit a petition to the Secretary?
              81.55
              How is the petition formatted and signed?
              81.56
              Do petitions have a minimum or maximum number of pages?
              81.57
              How do I determine how many signatures are needed for a petition to be valid?
              81.58
              How long do tribal members have to gather the signatures?
              81.59
              How does the spokesperson file a petition?
              81.60
              How does the Local Bureau Official process the petition?
              81.61
              How can signatures to the petition be challenged?
              81.62
              How is the petition validated?
              81.63
              May the same petition be used for more than one Secretarial election?

            Authority:
            : 25 U.S.C. 473a, 476, 477, as amended, and 503.

            Source:
            80 FR 63106, Oct. 19, 2015, unless otherwise noted.

            Subpart A—Purpose and Scope

              § 81.1
              What is the purpose of this part?
              This part prescribes the Department's procedures for authorizing and conducting elections when Federal statute or the terms of a tribal governing document require the Secretary to conduct and approve an election to:
              (a) Adopt, amend, or revoke tribal governing documents; or
              (b) Adopt or amend charters.

              § 81.2
              When does this part apply?
              (a) This part applies only to federally recognized tribes, in the circumstances shown in the following table.

                  If a tribe wants to . . .
                  And . . .

                  (1) Adopt a new governing document to reorganize under Federal statute
                  The Federal statute requires an election before or after Secretarial approval.

                  (2) Adopt a new governing document to reorganize outside Federal statute
                  The governing document requires approval under the Secretary's general authority to approve.

                  (3) Amend or revoke a governing document adopted under Federal statute
                  The Federal statute requires an election and approval for amendment or revocation.

                  (4) Amend or revoke a governing document adopted outside Federal statute
                  The governing document requires Secretarial approval of an amendment or revocation.

                  (5) Ratify a federal charter of incorporation
                  The charter requires Secretarial approval or is being ratified under the Oklahoma Indian Welfare Act (OIWA).

                  (6) Amend a federal charter of incorporation
                  The charter requires a Secretarial election to amend.

                  (7) Take other action
                  A Federal statute or tribal law requires a Secretarial election in order to take that action.

                  (8) Remove the requirement for a Secretarial approval from a governing document
                  A Federal statute or tribal law requires a Secretarial election in order to take that action.

              (b) Secretarial elections will be conducted in accordance with the procedures in this part unless the amendment article of the tribe's governing document provides otherwise and is not contrary to Federal voting qualifications or substantive provisions, in which case the provisions of those documents shall rule, where applicable.
              (c) If the amendment provisions of a tribal governing document have become outdated and the amendment cannot be effected under them, and the recognized tribal governing body requests a Secretarial election, the Bureau may authorize a Secretarial election under this part to amend the documents.

              § 81.3
              Information collection.
              The information collection requirements contained in this part are approved by the Office of Management and Budget under the Paperwork Reduction Act of 1995, 44 U.S.C. 3507(d), and has been assigned OMB control number 1076-0183. This information is collected when, under Federal statute or the tribe's governing documents, the Secretarial election is authorized to adopt, amend, or revoke governing documents; or adopt or amend charters. This information is required to obtain or retain benefits. A Federal agency may not collect or sponsor an information collection without a valid OMB control number.

            Subpart B—Definitions

              § 81.4
              What terms do I need to know?
              For purposes of this part:

                Absentee ballot means a ballot the Secretarial Election Board provides to a registered voter, upon request, to allow him or her to vote by mail even though polling sites are used.

                Amendment means any modification or change to one or more provisions of an existing governing document or charter.

                Applicable law means any treaty, statute, Executive Order, regulation, or final decision of a Federal court, which is applicable to the tribe.

                Authorizing Official means the Bureau official with delegated Federal authority to authorize a Secretarial election.

                Bureau means the Bureau of Indian Affairs, Department of the Interior.

                Business day means a weekday (Monday through Friday), excluding Federal holidays.

                Cast means the action of a registered voter, when the ballot is received through the mail by the Secretarial Election Board, or placed in the ballot box at the polling site.

                Charter means a charter of incorporation issued under a Federal statute and ratified by the governing body in accordance with tribal law or, if adopted before May 24, 1990, by a majority vote in an election conducted by the Secretary.

                Day means a calendar day. A Secretarial election may be held on a Saturday, Sunday or Federal holiday.

                Department means the Department of the Interior.

                Director means the Director of the Bureau of Indian Affairs or his or her authorized representative.

                Electioneering means campaigning for or against the adoption, ratification, revocation or amendment of a proposed governing document or a charter.

                Eligible voter means a tribal member who will be 18 years of age or older on the date of the Secretarial election (and, if the tribe's governing document imposes additional requirements for voting in a Secretarial election, also meets those requirements).

                Eligible Voters List means a list of eligible voters, including their birthdates and their last known mailing addresses. The Eligible Voters List is compiled and certified by the tribe's governing body or the Bureau if the Bureau maintains the current membership roll for the tribe.

                Federal statute means the Indian Reorganization Act (IRA), 25 U.S.C. 476, 477, as amended, the Oklahoma Indian Welfare Act (OIWA), 25 U.S.C. 503, and any tribe-specific Federal statute that requires a Secretarial election for the adoption of a governing document.

                Final agency action means the Authorizing Official's approval or disapproval of a Secretarial election or acknowledgment of the tribe's or petitioners' withdrawal of a request for Secretarial election, and is final for the Department.

                Governing document means any written document that prescribes the extent, limitations, and manner in which the tribe exercises its sovereign powers.

                Local Bureau office means the local administrative office of the Bureau that is the primary point of contact between the Bureau and the tribe.

                Local Bureau Official means the Superintendent, Field Representative, or other official having delegated Federal administrative responsibility under this part.

                Mailout ballot means a ballot the Secretarial Election Board provides to a registered voter to allow him or her to vote by mail in an election conducted entirely by mail.

                Member of a tribe or tribal member means any person who meets the criteria for membership in a tribe and, if required by the tribe, is formally enrolled.

                Petition means the official document submitted by the petitioners to the Secretary to call a Secretarial election for the purpose of adopting or ratifying a new governing document, amending the tribe's existing governing document, or revoking the tribe's existing governing document.

                Petitioner means a tribal member who is 18 years of age or older (and, if the tribe's governing document imposes additional requirements for petitioning, also meets those requirements), and signs a petition.

                Polling site ballot means the ballot the Secretarial Election Board provides to a registered voter, allowing him or her to vote when polling sites are required by the amendment and adoption article of the tribe's governing document.

                Recognized governing body means the tribe's governing body recognized by the Bureau for the purposes of government-to-government relations.

                Registered Voter means an eligible voter who has registered to vote in the Secretarial election.

                Registered Voters List means the list of all Registered Voters showing only names and, where applicable, voting districts.

                Registration means the process by which an eligible voter signs up to vote in the Secretarial election.

                Revocation means that act whereby the registered voters of a tribe vote to revoke their current governing document.

                Secretarial election means a Federal election conducted by the Secretary under a Federal statute or tribal governing document under this part.

                Secretarial Election Board means the body of officials appointed by the Bureau and the tribe (and the spokesperson for petitioners, as applicable) to conduct the Secretarial election.

                Secretary means the Secretary of the Interior or his or her authorized representative.

                Spoiled ballot means the ballot is mismarked, mutilated, rendered impossible to determine the voter's intent, or marked so as to violate the secrecy of the ballot.

                Spokesperson for the petitioners or spokesperson means a tribal member who provides a document signed by other tribal members that provides him or her authority to speak or submit a petition on their behalf.

                Tribal request means a request that includes all of the components set out in 81.6.

                Tribe means any Indian or Alaska Native tribe, band, nation, pueblo, village or community that is listed in the Federal Register under 25 U.S.C. 479a—1(a), as recognized and receiving services from the Bureau of Indian Affairs.

                Voting district means a geographic area established to facilitate the voting process, if required, by the amendment and adoption articles of the tribe's governing document.

            Subpart C—Provisions Applicable to All Secretarial Elections

              § 81.5
              What informal review is available to a tribe or petitioner when anticipating adopting or amending a governing document?
              A tribe that plans to adopt or amend a governing document or a spokesperson for a petitioner may, but is not required to, submit the proposed document with a request for informal review to the Local Bureau Official.
              (a) During the informal review:
              (1) Bureau personnel will help the tribal government or petitioner spokesperson in drafting governing documents, bylaws, charters, amendments and revocations, explain the Secretarial election process, and provide guidance on methods for voter education, such as informational meetings.
              (2) The Local Bureau Official will review the proposed document and will offer technical assistance and comments to the tribe or petitioner spokesperson, including but not limited to guidance on whether any of the provisions of the proposed document or amendment may be contrary to applicable laws.
              (b) The Bureau will provide technical assistance for a petition only upon request of the spokesperson. Bureau personnel will provide a courtesy copy to the tribe's governing body of all correspondence regarding technical assistance to the petitioners. The spokesperson will be responsible for obtaining the approval of the tribal members it represents on changes to the content of the petition.

              § 81.6
              How is a Secretarial election requested?
              To request a Secretarial election:
              (a) The tribe or petitioner must submit:

              (1) A duly adopted tribal resolution, tribal ordinance, other appropriate tribal document requesting the Secretary to call a Secretarial election, or, in the absence of an existing governing document or if authorized or required by the existing governing documents, a petition that has been verified by the Bureau as having the minimum number of required signatures of tribal members; and
              (2) The exact document or amended language to be voted on; and
              (b) The tribe must submit a list in an electronically sortable format with names, last known addresses, dates of birth, and voting district, if any, of all tribal members who:
              (1) Will be 18 years of age or older within 120 days of the date of the request; and
              (2) Meet any other voting restrictions imposed by the tribe's governing document for voting in the Secretarial election.

              § 81.7
              What technical assistance will the Bureau provide after receiving a request for election?
              After receiving a tribal request for election under § 81.6, the Bureau will provide the following technical assistance.
              (a) The Local Bureau Official will review and make a recommendation on the proposed document or amendment, prepare background information on the tribe, and submit to the Authorizing Official.
              (b) The Authorizing Official must do all of the following:
              (1) Review the proposed document or amendment and offer technical assistance to the tribe (and spokesperson, for petitions);
              (2) Consult with the Office of the Solicitor to determine whether any of the provisions of the proposed document or amendment may be contrary to applicable law; and
              (3) Notify the tribe (and spokesperson, for petitions) in writing of the results of the review.
              (i) If the review finds that a provision is or may be contrary to applicable law, the notification must explain how the provision may be contrary to applicable law and list changes to the document that would be required to allow the Authorizing Official to approve the document as not contrary to applicable law.
              (ii) The notification must be sent to the tribe (and spokesperson, for petitions) promptly but in no case less than 30 days before calling the election.
              (iii) For IRA elections, the tribe may choose to proceed with the election without incorporating required changes, but the Authorizing Official may not approve election results ratifying provisions that are contrary to applicable law.
              (iv) For OIWA elections, the Authorizing Official may not authorize a Secretarial election on any proposed document that contains provisions that may be contrary to applicable law.

              § 81.8
              What happens if a governing Federal statute and this part disagree?
              If a conflict appears to exist between this part and a specific requirement of the Federal statute, this part must be interpreted to conform to the statute.

              § 81.9
              Will the Secretary give deference to the Tribe's interpretation of its own documents?
              The Secretary will give deference to the tribe's reasonable interpretation of the amendment and adoption articles of the tribe's governing documents. The Secretary retains authority, however, to interpret tribal law when necessary to carry out the government-to-government relationship with the tribe or when a provision, result, or interpretation may be contrary to Federal law.

              § 81.10
              Who may cast a vote in a Secretarial election?

                  If the tribe:
                  Then the following individuals may cast a vote:

                  (a) Is reorganizing under Federal statute for the first time,
                  Any member of the tribe who:(1) Will be 18 years of age or older on the date of the Secretarial election; and
                    (2) Has duly registered, regardless of residence or other qualifications contained in the tribe's governing documents or charter

                  (b) Is already reorganized under Federal statute,
                  Any member of the tribe who:(1) Will be 18 years of age or older on the date of the Secretarial election; and
                    (2) Otherwise meets the qualifications required by the tribe's governing documents or charter for that particular type of Secretarial election; and
                    (3) Has duly registered.

                  (c) Is not reorganized under a Federal statute but tribal law requires a Secretarial election
                  Any member of the tribe who:(1) Will be 18 years of age or older on the date of the Secretarial election; and
                    (2) Otherwise meets the qualifications, if any, required by the tribe's governing documents or charter for that particular type of Secretarial election, if any; and
                    (3) Has duly registered.

              § 81.11
              May a tribe establish a voting age different from 18 years of age for Secretarial elections?
              No. A Secretarial election is a Federal election. According to the 26th Amendment of the U.S. Constitution, adopted July 1, 1971, all individuals 18 years of age and older must be allowed to vote in Federal elections.

              § 81.12
              What type of electioneering is allowed before and during Secretarial election?
              There shall be no electioneering within 50 feet of the entrance of a polling site.

              § 81.13
              What types of voting assistance are provided for a Secretarial election?
              If polling sites are required by the amendment or adoption article of the tribe's governing document, the Chair of the Secretarial Election Board will:
              (a) Appoint interpreters;
              (b) Ensure that audio or visual aids for the hearing or visually impaired are provided;
              (c) Ensure that reasonable accommodations are made for others with impairments that would impede their ability to vote; and
              (d) Allow the interpreter or Secretarial Election Board member to explain the election process and voting instructions. At the request of the voter, the interpreter or Board member may accompany the voter into the voting booth, but must not influence the voter in casting the ballot.

              § 81.14
              May Secretarial elections be scheduled at the same time as tribal elections?
              The Secretarial Election Board will, generally, avoid scheduling Secretarial elections at the same time as tribal elections to avoid confusion. If the Secretarial Election Board decides to schedule a Secretarial election at the same time as a tribal election, the Secretarial Election Board must clearly inform eligible voters of any differences between the tribal election and the Secretarial election and separate ballots must be used for each type of election.

              § 81.15
              How are conflicting proposals to amend a single document handled?
              When conflicting proposals to amend a single provision of a tribal governing document or charter provision are submitted, the proposal first received by the Local Bureau Official, if properly submitted as a complete tribal request, must be voted on before any consideration is given other proposals. Other proposals must be considered in order of their receipt if they are resubmitted following final agency action on the first submission. This procedure applies regardless of whether the proposal is a new or revised tribal governing document.

              § 81.16
              Who pays for holding the Secretarial election?

              (a) A Secretarial election is a Federal election; therefore, Federal funding will be used to cover costs. The Bureau will pay for the costs, unless the tribe has received funding for this function through contracts or self-governance compacts entered into under the Indian Self-Determination and Education Assistance Act, as amended, 25 U.S.C. 450f, et seq.

              (b) Once a tribe removes the requirement for Secretarial approval, all subsequent elections it holds to amend the governing document are tribal elections and the tribe is responsible for the costs of those elections.

              § 81.17
              May a tribe use its funds to pay non-Federal election officials?
              A recognized tribal governing body may use tribal funds to compensate non-Federal personnel to respond to the needs of the tribal government in the conduct of the Secretarial election.

              § 81.18
              Who can withdraw a request for a Secretarial election?
              The tribe may withdraw the request for Secretarial election in the same manner in which the Secretarial election was requested. The petitioners may withdraw the request for Secretarial election by submitting a new petition, with signatures of at least a majority of the signers of the original petition, seeking withdrawal of the original petition. However, the request for a Secretarial election cannot be withdrawn after the established deadline for voter registration.

            Subpart D—The Secretarial Election Process under the Indian Reorganization Act (IRA)

              § 81.19
              How does the Bureau proceed after receiving a request for a Secretarial election?
              (a) Upon receiving a request for a Secretarial election, the Local Bureau Official will forward the request to the Authorizing Official with any appropriate background information.
              (b) The Authorizing Official will issue a memorandum to the Local Bureau official. The memorandum will do all of the following:
              (1) Direct the Local Bureau Official to call and conduct a Secretarial election by one of the following deadlines:
              (i) If the tribal request is to amend an existing governing document, within 90 days from the date of receipt of the request;
              (ii) If the tribal request is to adopt a new governing document (including an amendment to a governing document in the nature of an entire substitute) or to revoke an existing governing document, within 180 days after receiving the request.
              (2) Include as an attachment the document or proposed language to be voted upon;

              (3) Include as an attachment the Certificate of Results of Election with instructions to return it after the Secretarial election. The Certificate shall read as follows:

                Certificate of Results of Election
                Under a Secretarial election authorized by (name and title of authorizing official) on (date), the attached [insert: Governing document and Bylaws, charter of incorporation, amendment or revocation] of the (official name of tribe) was submitted to the registered voters of the tribe and on (date) duly (insert: adopted, ratified, rejected or revoked) by a vote of (number) for and (number) against and (number) cast ballots found spoiled in an election in which at least 30 percent (or such “percentages” as may be required to amend according the governing document) of the (number) registered voters cast their ballot in accordance with (appropriate Federal statute).
                Signed:
                (by the Chair of the Secretarial Election Board and Board Members)
                Date: ____; and

              (4) Advise that no changes or modifications can be made to any attached document, without the Authorizing Official's prior approval.
              (c) The Local Bureau Official will appoint a Bureau employee to serve as the Chair of the Secretarial Election Board and notify the tribe of the need to appoint at least two tribal members, who are at least 18 years of age, to the Secretarial Election Board. If the election is to be held as the result of a petition, then the Local Bureau Official will appoint a Bureau employee to serve as the Chair of the Secretarial Election Board and notify the tribe and the spokesperson for the petitioners of the need to appoint one tribal member each, who is at least 18 years of age, to the Secretarial Election Board. If the tribe or spokesperson for the petitioners declines or fails for any reason to make the appointment(s) by close of business on the 10th day after the date the notice letter is issued, the Chair of the Secretarial Election Board must appoint the representative(s), who are tribal members, if available, on the 11th day after the notice letter is issued.

              § 81.20
              What is the first action to be taken by the Chair of the Election Board?
              Within 5 days after the Secretarial Election Board representatives are appointed, the Chair must hold the first meeting of the Secretarial Election Board to set the election date.

              § 81.21
              What are the responsibilities of the Secretarial Election Board in conducting a Secretarial election?
              The Secretarial Election Board conducts the Secretarial election. Except as provided in § 81.43, decisions of the Secretarial Election Board are not subject to administrative appeal.

              § 81.22
              How is the Secretarial election conducted?
              The Secretarial Election Board:
              (a) Uses the list provided in the tribal request as the basis for the Eligible Voters List;
              (b) Assembles and mails the Secretarial Election Notice Packet at least 30 days, but no more than 60 days, before the date of the Secretarial election to all persons on the Eligible Voters List;
              (c) Confirms that registration forms were received on or before the deadline date;
              (d) Retains the completed registration form as part of the record;
              (e) Develops the Registered Voters List for posting;
              (f) Where the election is conducted entirely by mailout ballot, notes on a copy of the Registered Voters List, by the individual's name, the date the ballot was mailed, and the date the ballot was returned; and
              (g) Where polling sites are required and an individual requests an absentee ballot, notes on a copy of the Registered Voters List, by the individual's name, the date his or her absentee ballot request was received, the date the absentee ballot was mailed, and the date the absentee ballot was returned.

              § 81.23
              What documents are included in the Secretarial Election Notice Packet?
              The Secretarial Election Notice Packet includes the following:
              (a) Mailout Balloting:
              (1) The Secretarial election notice;
              (2) A registration form with instructions for returning the completed form by mail;
              (3) An addressed envelope with which to return the completed registration form;
              (4) If the entire document is to be amended or adopted, a copy of the proposed document including proposed language; and if applicable, a copy of the current document proposed for change; and
              (5) A side-by-side comparison showing the current language to be changed, if applicable, in the left column and the proposed language in the right column.
              (b) Polling Sites (if required by the amendment or adoption articles of the tribe's governing document):
              (1) The Secretarial election notice;
              (2) A registration form with instructions for returning the completed form by mail;
              (3) An absentee ballot request form with instructions for returning the completed form by mail;
              (4) An addressed envelope with which to return the completed registration form and absentee ballot request form;
              (5) If the entire document is to be amended or adopted, a copy of the proposed document including proposed language; and if applicable, a copy of the current document proposed for change; and
              (6) A side-by-side comparison showing the current language to be changed, if applicable, in the left column and the proposed language in the right column.

              § 81.24
              What information must be included on the Secretarial election notice?
              The Secretarial election notice must contain all of the following items.
              (a) The date of the Secretarial election;
              (b) The date which registration forms must be received by the Secretarial Election Board;
              (c) A description of the purpose of the Secretarial election;
              (d) A description of the statutory and tribal authority under which the Secretarial election is held;
              (e) The deadline for filing challenges to the Registered Voters List;
              (f) If polling sites are to be used, the date an absentee ballot request must be received by the Secretarial Election Board;

              (g) A statement as to whether the Secretarial election is being held entirely by mailout ballot or with polling sites, in accordance with the tribe's governing document's amendment or adoption articles; and
              (h) The locations and hours of established polling sites, if any.

              § 81.25
              Where will the Secretarial election notice be posted?
              The Secretarial election notice will be posted at the local Bureau office, if any, the tribal headquarters, and other public places determined by the Secretarial Election Board.

              § 81.26
              How does BIA use the information I provide on the registration form?
              We use the information you provide on the registration form to determine whether you will be registered for and vote in the Secretarial election. The registration form must include the following statements:
              (a) Completing and returning this registration is necessary if you desire to vote in the forthcoming Secretarial election;
              (b) This form, upon completion and return to the Secretarial Election Board, will be the basis for determining whether your name will be placed upon the list of registered voters, and therefore may receive a ballot, and
              (c) Completion and return of this form is voluntary, but failure to do so will prevent you from participating in the Secretarial election.

              § 81.27
              Must I re-register if I have already registered for a tribal or Secretarial election?
              Yes. A Secretarial election is a Federal election and you must register for each Secretarial election.

              § 81.28
              How do I submit my registration form?
              You must submit your registration form to the Secretarial Election Board by U.S. mail.

              § 81.29
              Why does the Secretarial Election Board compile a Registered Voters List?
              The Registered Voters List is a list of eligible voters who have registered and are, therefore, entitled to vote in the Secretarial election. We use this list, after all challenges have been resolved, to determine whether voter participation in the Secretarial election satisfies the minimum requirements of the tribe's governing documents and Federal law.

              § 81.30
              What information is contained in the Registered Voters List?
              The Registered Voters List must contain the names, in alphabetical order, of all registered voters and their voting districts, if voting districts are required by the tribe's governing document's amendment or adoption articles.

              § 81.31
              Where is the Registered Voters List posted?
              A copy of the Registered Voters List, showing only names and, where applicable, voting districts, must be posted at the local Bureau office, the tribal headquarters, and other public places the Secretarial Election Board designates.

              § 81.32
              May the Registered Voters List be challenged?
              (a) It is possible to challenge in writing the inclusion or exclusion or omission of a name on the Registered Voters List. The written challenge must be received by the Secretarial Election Board by the established deadline and include the following:
              (1) The name of the affected individual or individuals;
              (2) The reason why the individual's name should be added to or removed from the Registered Voters List; and
              (3) Supporting documentation.
              (b) If an individual failed to submit his or her registration form on time, that individual is precluded from challenging the omission of his/her name from the list.

              § 81.33
              How does the Secretarial Election Board respond to challenges?
              All challenges must be resolved by close of business on the third day after the date of the challenge deadline established by the Secretarial Election Board and all determinations of the Secretarial Election Board are final for the purpose of determining who can vote in the Secretarial election.

              (a) If the challenge was received after the deadline, the Secretarial Election Board must deny the challenge.

              (b) If the challenge was received on or before the deadline, the Secretarial Election Board will decide the challenge by reviewing the documentation submitted. Thereafter, the Secretarial Election Board will include the name of any individual whose name should appear or remove the name of any individual who should not appear on the Registered Voters List.

              § 81.34
              How are the official ballots prepared?

              (a) The Secretarial Election Board must prepare the official ballot so that it is easy for the voters to indicate a choice between no more than two alternatives (i.e., adopting or rejecting the proposed language). Separate ballots should be prepared for each proposed amendment or a single ballot for adoption of a proposed document (with a reference to the document provided in the Secretarial election notice).
              (b) The following information must appear on the face of the mailout or absentee ballot:

                OFFICIAL BALLOT
                (Facsimile Signature)
                CHAIR, SECRETARIAL ELECTION BOARD

              (c) When polling places are required by the tribe's governing document, the official ballot may be a paper ballot, voting machine ballot, or other type of ballot supporting the secret ballot process.

              § 81.35
              When must the Secretarial Election Board send ballots to voters?
              (a) Unless the amendment or adoption articles of the tribe's governing document require the use of polling sites in the election, the election must be conducted entirely by mailout ballots, and the Secretarial Election Board must send mailout ballots to registered voters promptly upon completion of the Registered Voters List.
              (b) When the amendment or adoption articles of the tribe's governing document require the use of polling sites in the election, the Secretarial Election Board must send an absentee ballot to every registered voter who requests an absentee ballot, as long as the request is received before the Secretarial election date.
              (c) All mailout or absentee ballot deliveries must be via U.S. Mail or by hand-delivery to the location identified in the Secretarial election notice before the date of the Secretarial election.

              § 81.36
              What will the mailout or absentee ballot packet include?
              The mailout or absentee ballot packet contains:
              (a) A cover letter summarizing what the ballot packet contains and, if there is more than one ballot included in the packet, enumerating the ballots and advising voters to give consideration to each enumerated ballot;
              (b) A mailout or absentee ballot (or, if several amendments are to be voted on, multiple ballots, each printed on a different colored sheet if possible);
              (c) Instructions for voting by mailout or absentee ballot including the date the ballot must be received by the Secretarial Election Board;
              (d) An inner envelope with the words “Mailout Ballot” or “Absentee Ballot” printed on the outside, as applicable;
              (e) A copy of the proposed governing document or amendment, if the full text is not printed on the mailout ballot and if the entire document is to be amended or adopted; and
              (f) A pre-addressed outer envelope with the following certification printed on the back:

                I, (print name of voter), hereby certify I am a registered voter of the (name of Tribe); I will be 18 years of age or older on the day of the Secretarial election; I am entitled to vote in the Secretarial election to be held on (date of Secretarial election). I further certify that I marked the enclosed mailout ballot in secret.
                Signed:
                (voter's signature)

              § 81.37
              How do I cast my vote at a polling site?
              If polling sites are required by the tribe's governing document's amendment or adoption articles, the Secretarial Election Board will establish procedures for how polling site ballots will be presented and collected, including, but not limited to, paper ballots, voting machines, or other methods supporting a secret ballot.

              § 81.38
              When are ballots counted?
              The ballots will be counted under the supervision of the Secretarial Election Board, after the deadline established for receiving all ballots or closing of the polls, if polling sites are required by the tribe's governing document's amendment or adoption articles.

              § 81.39
              How does the Board determine whether the required percentage of registered voters have cast ballots?
              The Secretarial Election Board must count the number of valid ballots and cast spoiled ballots to determine total voter participation. The Board must take the total voter participation and divide it by the total number of Registered Voters. This total is used to determine whether the percentage of Registered Voters who cast votes meets the requirements of the tribe's governing documents or Federal statute that requires at least 30 percent voter participation. For example:
              (a) If there were 200 registered voters of which 75 cast valid ballots and 5 cast spoiled ballots for a total of 80 cast ballots (75 + 5 = 80). The percentage of voter participation would be determined as follows:
              Total number of votes cast (80) divided by the total number registered voters (200) or 80 ÷ 200 = 0.40 or 40 percent voter participation.
              (b) This example meets the Federal statutory requirement of at least 30 percent voter participation.

              § 81.40
              What happens if a ballot is spoiled before it is cast?
              If a ballot is spoiled before it is cast, this section applies.
              (a) The registered voter may return the spoiled ballot to the Secretarial Election Board by mail or in person at the local Bureau office with a request for a new ballot before the election date. The new ballot will be promptly provided to the registered voter. The Secretarial Election Board must retain all “spoiled uncast ballots” for recordkeeping purposes.
              (b) If polling sites are required, the voter may return the spoiled ballot to the polling site worker and request a new ballot. Upon receiving the new ballot, the voter must then complete the voting process. The polling site worker will mark the spoiled ballot “spoiled uncast” and record that the ballot has been spoiled. The polling site worker must retain all “spoiled uncast ballots” for recordkeeping purposes.

              § 81.41
              Who certifies the results of the Election?
              The Chair and all members of the Secretarial Election Board must be present during the counting of the ballots and must sign the Certificate of Results of Election.

              § 81.42
              Where are the results of the Election posted?
              The Secretarial Election Board must post a copy of the Certificate of Results of Election at the local Bureau office, the tribal headquarters, and at other public places listed in the election notice. The Board also has the discretion to publicize the results using additional methods, such as by posting on the tribe's Web site.

              § 81.43
              How are the results of the Election challenged?
              Any person who was listed on the Eligible Voters List and who submitted a voter registration form may challenge the results of the Secretarial election. The written challenge, with substantiating evidence, must be received by the Chairman of the Secretarial Election Board within 5 days after the Certificate of Results of Election is posted, not including the day the Certificate of Results of Election is posted. Challenges received after the deadline for filing challenges will not be considered. If the third day falls on a weekend or Federal holiday, the challenge must be received by close of business on the next business day.

              § 81.44
              What documents are sent to the Authorizing Official?
              The Chair of the Secretarial Election Board must transmit all documents pertaining to the Secretarial election to the Authorizing Official, including:
              (a) The original text of the material voted on;
              (b) The Eligible Voters List;
              (c) The Registered Voters List;
              (d) The Secretarial Election Notice Packet;

              (e) Any challenges to the Secretarial election results; and
              (f) The Certificate of Results of Election.

              § 81.45
              When are the results of the Secretarial election final?
              The Authorizing Official will review election results and challenges, if any, as follows:
              (a) If a challenge alleges errors that would invalidate the election, and the Authorizing Official sustains any such challenges, the Authorizing Official must authorize a recount or call for a new Secretarial election. The Authorizing Official will take the appropriate steps necessary to provide for a recount or a new Secretarial election.
              (b) If all challenges are denied or dismissed, the Authorizing Official will review and make a decision based on the following:
              (1) The percentage of total votes cast was at least 30 percent, or other percentages required according to the tribe's governing document's amendment or adoption articles.
              (2) The voters rejected or accepted the proposed document or each proposed amendment; and
              (3) The proposed documents or amendments are not contrary to Federal law.
              (c) The Authorizing Official must notify, in writing, the recognized governing body of the tribe, and the Director of the Bureau, of the following:
              (1) The decisions on challenges;
              (2) The outcome of the voting;
              (3) Whether the proposed governing document, proposed amendment(s) or charter or charter amendments are approved or ratified, or if the proposed documents contain language that is contrary to Federal law and, therefore, disapproved; and
              (4) That the decision is a final agency action.
              (d) The Authorizing Official must:
              (1) Forward the original text of the document, Original Certificate of Approval or Disapproval, and the Certificate of Results of Election to the tribe and a copy of all documents to the Bureau Director; and
              (2) Retain, as required by the Records Disposition Schedule, a copy of all document(s) relevant to the Secretarial election.
              (e) If the certified election results show that the tribal members ratified the documents, but the Authorizing Official does not approve or disapprove the governing document or amendment by close of business on the 45th day after the date of the Secretarial election, the Secretary's approval of the documents must be considered as given.
              (f) The Authorizing Official's decision to approve or disapprove the governing document or amendment is a final agency action.

            Subpart E—The Secretarial Election Process Under the Oklahoma Indian Welfare Act (OIWA)

              § 81.46
              How does the Bureau proceed upon receiving a request for an OIWA Election if no provisions are contrary to applicable law?
              If the proposed document does not contain any provision that may be contrary to applicable law, the Bureau will take the following steps.
              (a) The Authorizing Official will issue a memorandum to the Local Bureau Official:
              (1) Approving the proposed document or proposed amendments;
              (2) Authorizing the Local Bureau Official to call and conduct a Secretarial election, within 90 days from the date of receiving the tribal request;
              (3) Attaching the document or proposed language to be voted upon;
              (4) Attaching the Certificate of Results of Election, with instructions to return it at the conclusion of the Secretarial election. The Certificate shall read as follows:

                Certificate of Results of Election

                Under a Secretarial election authorized by (name and title of authorizing official) on (date), the attached [insert: Governing document and Bylaws, charter of incorporation, amendment or revocation] of the (official name of tribe) was submitted to the registered voters of the tribe and on (date) duly (insert: adopted, ratified, rejected or revoked) by a vote of (number) for and (number) against and (number) cast ballots found spoiled in an election in which at least 30 percent (or such “percentages” as may be required to amend according the governing document) of the (number) registered voters cast their ballot in accordance with (appropriate Federal statute).
                Signed: ___________________
                (by the Chair of the Secretarial Election Board and Board Members)
                Date: _________________.; and

              (5) Advising that no changes or modifications can be made to any of the attached documents, without prior approval from the Authorizing Official.
              (b) The Local Bureau Official will appoint the Chair of the Secretarial Election Board and notify the tribe of the need to appoint at least two tribal members to the Secretarial Election Board. If the election is to be held as the result of a petition, then the Local Bureau Official will appoint a Bureau employee to serve as the Chair of the Secretarial Election Board and notify the tribe and the spokesperson for the petitioners of the need to appoint one tribal member each, who is at least 18 years of age, to the Secretarial Election Board. If the tribe or spokesperson declines or fails for any reason to make the appointment(s) by close of business on the 10th day after the date the notice letter is issued, the Chair of the Secretarial Election Board must appoint the representative(s), who are tribal members, if available, on the 11th day after the notice letter is issued.

              § 81.47
              How is the OIWA Secretarial election conducted?
              After the Chair of the Election Board receives the authorization of the Election, the Chair of the Secretarial Election Board will conduct the election following the procedures set out in §§ 81.19 through § 81.45 of subpart D.

              § 81.48
              When are the results of the OIWA Election final?
              (a) If a challenge is sustained and has an effect on the outcome of the election, the Authorizing Official must authorize a recount or call for a new Secretarial election. The Authorizing Official will take the appropriate steps necessary to provide for a recount or a new Secretarial election.
              (b) If the challenges are denied or dismissed, the Authorizing Official will review and determine whether:
              (1) The percentage of total votes cast was at least 30 percent, or such percentages as may be required according to the tribe's governing document's amendment or adoption articles; and
              (2) The voters ratified or rejected the proposed document, proposed amendment or revocation.
              (c) The Authorizing Official must notify, in writing, the recognized governing body of the tribe, and the Director of the Bureau, of the following:
              (1) The decisions on challenges;
              (2) The outcome of the voting; and
              (3) That the proposed document, proposed amendments or revocation becomes effective as of the date of the Secretarial election; and
              (4) That the decision is a final agency action.
              (d) The Authorizing Official must:
              (1) Forward the original text of the document, Original Certificate of Approval, and the Certificate of Results of Election to the tribe and a copy of all documents to the Director of the Bureau; and
              (2) Retain, as required by the Records Disposition Schedule, a copy of all document(s) relevant to the Secretarial election.

            Subpart F—Formulating Petitions To Request a Secretarial Election

              § 81.49
              What is the purpose of this subpart?
              This subpart establishes requirements for formulating and submitting petitions to request the Secretary to call a Secretarial election as required by the governing documents or charters of incorporation of tribes issued under the Indian Reorganization Act (IRA), 25 U.S.C. 476 and 477, as amended, and the Oklahoma Indian Welfare Act (OIWA), 25 U.S.C. 503. This Subpart may also be used by a federally recognized tribe that is adopting a governing document, under Federal statute, for the first time.

              § 81.50
              Who must follow these requirements?

              Any tribe meeting the criteria in paragraphs (a) or (b) of this section must follow the requirements of this subpart.

              (a) A tribe whose governing document or charter of incorporation provides for petitioning the Secretary to call a Secretarial election for any of the following purposes:
              (1) Amending or revoking the governing document;
              (2) Amending a charter of incorporation ratified under 25 U.S.C. 477 of the IRA before May 24, 1990 where the amendments section or article specifically requires it;
              (3) Amending or ratifying a charter of incorporation under 25 U.S.C. 503 of the OIWA; or
              (4) Taking any other action authorized by the governing document or charter of incorporation.
              (b) A federally recognized tribe, without an existing governing document, adopting a governing document under Federal statute, for the first time.

              § 81.51
              How do tribal members circulate a petition to adopt or amend the tribe's governing document?
              Tribal members wishing to circulate a petition to adopt or amend the tribe's governing document may submit the proposed document to the Local Bureau Official for review and comment. The Local Bureau Official may help the petitioners in drafting governing documents, bylaws, charters, amendments and revocations. The Bureau may also explain the Secretarial election process.

              § 81.52
              Who may initiate a petition?
              A member of the tribe who is 18 years of age or older whose tribe's governing document or charter of incorporation permits tribal members to petition the Secretary to authorize a Secretarial election.

              § 81.53
              Who may sign a petition?
              A member of the tribe who is 18 years of age or older may sign a petition. Where the tribe's governing document imposes additional requirements (other than age requirements) on who may petition, those requirements also apply.

              § 81.54
              Who is authorized to submit a petition to the Secretary?
              The petitioners must designate a spokesperson to submit the petition and act on their behalf for the petitioning process.

              § 81.55
              How is the petition formatted and signed?
              (a) Each page of the petition must contain:
              (1) A summary of the purpose of the petition, or proposed document, or proposed amendment language;
              (2) Numbered lines for each individual to print their legal name, current mailing address, date, and signature, and;

              (3) The following declaration at the bottom of each page to confirm the collector was present when each signature was collected:

                “I, (Collector's Printed Name) , hereby declare that each individual whose name appears above signed and dated the petition. To the best of my knowledge, the individual signing the petition is a member of the tribe and is 18 years or older.
                (Signature of Collector)

                  (Notary Certification)”,

              (b) Each individual must print their legal name, current mailing address, date, and sign on a numbered line.
              (c) Each collector must complete and sign the declaration on each page in front of a notary, who will sign and certify.

              § 81.56
              Do petitions have a minimum or maximum number of pages?
              A petition can have as many pages as necessary to obtain the required signatures. However, each page must have the information shown in § 81.58 of this subpart.

              § 81.57
              How do I determine how many signatures are needed for a petition to be valid?
              (a) For a tribe whose governing document or charter of incorporation provides for petitioning the Secretary to call a Secretarial election:
              (1) The spokesperson for the petitioners may ask the tribe or the Local Bureau Official how many signatures are required.
              (2) The Local Bureau Official will:

              (i) Contact the tribal governing body to obtain the current number of tribal members, 18 years of age or older, to determine the number of tribal members who must sign a petition as required by the tribe's governing document; and
              (ii) Notify the petitioners' spokesperson how many signatures are required and that the number is valid for 180 days from the date of this notification.
              (b) For a federally recognized tribe adopting a governing document under Federal statute for the first time, the petition must have signatures of 50 percent of the tribal members who are 18 years of age or older.

              § 81.58
              How long do tribal members have to gather the signatures?
              Tribal members have one year from the date of the first signature to gather the required signatures.

              § 81.59
              How does the spokesperson file a petition?
              The spokesperson must submit the original petition to the Local Bureau Official.

              § 81.60
              How does the Local Bureau Official process the petition?
              (a) The Local Bureau Official must, on the date of receipt, date stamp the petition to record the Official Filing Date, and make four copies of the petition for use as follows:
              (1) Posting at the local Bureau office for 30 days from the Official Filing Date, including a statement of the proposal contained in the petition and instructions for filing a challenge;
              (2) Use in determining sufficiency of petition; and
              (3) For viewing at the Local Bureau Office by a member of the tribe, 18 years of age or older.
              (b) The Local Bureau Official must, within one week of the Official Filing Date:
              (1) Provide the spokesperson written acknowledgment of receiving the petition, which contains the Official Filing Date, the exact number of signatures submitted on the petition, and the statement “The petitioners may not add or withdraw any signatures from the petition after the Official Filing Date”; and
              (2) Provide a copy of the written acknowledgment of receipt and petition to the recognized tribal governing body.
              (c) The Local Bureau Official must:
              (1) Consult with the Office of the Solicitor to determine if any of the provisions that are the subject of the petition are or may be contrary to applicable law; and
              (2) If it appears that a provision is or may be contrary to applicable law, notify the petitioner's spokesperson in writing (with a copy to the recognized tribal governing body) how the provision may be contrary to applicable law.
              (d) The Local Bureau Official must promptly notify the petitioners (with a copy to the recognized tribal governing body) of any problems identified under paragraph (c) of this section at least 30 days before calling the election.

              § 81.61
              How can signatures to the petition be challenged?
              Any member of the tribe, 18 years of age or older, may challenge in writing the signatures appearing on the petition. The challenge must be submitted to the Local Bureau Official, within 30 days of the Official Filing Date of the petition and must:
              (a) Identify the page and line on which a signature appears; and
              (b) Provide documentation supporting a challenge that at least one of the following is true:
              (1) A signature was forged;
              (2) An individual was ineligible to sign the petition;
              (3) A petition page is inconsistent or improperly formatted; or
              (4) A petition page contains an incomplete or un-notarized declaration statement.

              § 81.62
              How is the petition validated?
              (a) The Local Bureau Official must:
              (1) Confirm the petition has the required number of signatures;
              (2) Indicate any signatures appearing more than once and include only one in the count;
              (3) Make recommendations regarding any challenge to the validity of signatures based upon the documentation provided by the challenger; and
              (4) Verify the petitioning procedures complied with this Subpart.

              (5) Transmit within 45 calendar days of the Official Filing Date the original petition, challenges, and recommendations to the Authorizing Official.
              (b) The Authorizing Official must within 60 calendar days of the Official Filing Date:
              (1) Determine whether the petition complies with the requirements of this Subpart;
              (2) Inform the spokesperson for the petitioners and the recognized tribal governing body, in writing, whether the petition is valid, the basis for that determination, and a statement that the decision of the Authorizing Official is a final agency action.
              (i) If the petition is determined valid for the purposes of calling a Secretarial election, it will be deemed a “tribal request” for the purposes of this part, and the Authorizing Official will instruct the Local Bureau Official to call and conduct the Secretarial election in accordance with §§ 81.19 through 81.45 of subpart D.
              (ii) If the petition is determined invalid, the Authorizing Official will notify the spokesperson for the petitioners, with a courtesy copy to the tribe's governing body, that the petition was not valid and a Secretarial election will not be called.

              § 81.63
              May the same petition be used for more than one Secretarial election?
              No. A petition may not be used for more than one Secretarial election. Each request for a Secretarial election requires a new petition.

          PART 82 [RESERVED]

          Pt. 83
          PART 83—PROCEDURES FOR FEDERAL ACKNOWLEDGMENT OF INDIAN TRIBES

              Subpart A—General Provisions
              Sec.
              83.1
              What terms are used in this part?
              83.2
              What is the purpose of the regulations in this part?
              83.3
              Who does this part apply to?
              83.4
              Who cannot be acknowledged under this part?
              83.5
              How does a petitioner obtain Federal acknowledgment under this part?
              83.6
              What are the Department's duties?
              83.7
              How does this part apply to documented petitions submitted before July 31, 2015?
              83.8
              May the deadlines in this part be extended?
              83.9
              How does the Paperwork Reduction Act affect the information collections in this part?

              Subpart B—Criteria for Federal Acknowledgment
              83.10
              How will the Department evaluate each of the criteria?
              83.11
              What are the criteria for acknowledgment as a federally recognized Indian tribe?
              83.12
              What are the criteria for a previously federally acknowledged petitioner?

              Subpart C—Process for Federal Acknowledgment

                Documented Petition Submission
                83.20
                How does an entity request Federal acknowledgment?
                83.21
                What must a documented petition include?
                83.22
                What notice will OFA provide upon receipt of a documented petition?

                Review of Documented Petition
                83.23
                How will OFA determine which documented petition to consider first?
                83.24
                What opportunity will the petitioner have to respond to comments before OFA reviews the petition?
                83.25
                Who will OFA notify when it begins review of a documented petition?
                83.26
                How will OFA review a documented petition?
                83.27
                What are technical assistance reviews?
                83.28
                When does OFA review for previous Federal acknowledgment?
                83.29
                What will OFA consider in its reviews?
                83.30
                Can a petitioner withdraw its documented petition?
                83.31
                Can OFA suspend review of a documented petition?

                Proposed Finding
                83.32
                When will OFA issue a proposed finding?
                83.33
                What will the proposed finding include?
                83.34
                What notice of the proposed finding will OFA provide?

                Comment and Response Periods, Hearing
                83.35
                What opportunity will there be to comment after OFA issues the proposed finding?
                83.36
                What procedure follows the end of the comment period for a favorable proposed finding?
                83.37

                What procedure follows the end of the comment period on a negative proposed finding?

                83.38
                What options does the petitioner have at the end of the response period on a negative proposed finding?
                83.39
                What is the procedure if the petitioner elects to have a hearing before an ALJ?

                AS-IA Evaluation and Preparation of Final Determination
                83.40
                When will the Assistant Secretary begin review?
                83.41
                What will the Assistant Secretary consider in his/her review?
                83.42
                When will the Assistant Secretary issue a final determination?
                83.43
                How will the Assistant Secretary make the final determination decision?
                83.44
                Is the Assistant Secretary's final determination final for the Department?
                83.45
                When will the final determination be effective?
                83.46
                How is a petitioner with a positive final determination integrated into Federal programs as a federally recognized Indian tribe?

            Authority:
            5 U.S.C. 301; 25 U.S.C. 2, 9, 479a-1; Pub. L. 103-454 Sec. 103 (Nov. 2, 1994); and 43 U.S.C. 1457.

            Source:
            80 FR 37887, July 1, 2015, unless otherwise noted.

            Subpart A—General Provisions

              § 83.1
              What terms are used in this part?
              As used in this part:

                ALJ means an administrative law judge in the Departmental Cases Hearings Division, Office of Hearings and Appeals (OHA), Department of the Interior, appointed under 5 U.S.C. 3105.

                Assistant Secretary or AS-IA means the Assistant Secretary—Indian Affairs within the Department of the Interior, or that officer's authorized representative, but does not include representatives of the Office of Federal Acknowledgment.

                Autonomous means independent of the control of any other Indian governing entity.

                Bureau means the Bureau of Indian Affairs within the Department of the Interior.

                Continental United States means the contiguous 48 states and Alaska.

                Department means the Department of the Interior, including the Assistant Secretary and OFA.

                Documented petition means the detailed arguments and supporting documentary evidence submitted by a petitioner claiming that it meets the Indian Entity Identification (§ 83.11(a)), Governing Document (§ 83.11(d)), Descent (§ 83.11(e)), Unique Membership (§ 83.11(f)), and Congressional Termination (§ 83.11(g)) Criteria and claiming that it:
              (1) Demonstrates previous Federal acknowledgment under § 83.12(a) and meets the criteria in § 83.12(b); or
              (2) Meets the Community (§ 83.11(b)) and Political Authority (§ 83.11(c)) Criteria.

                Federally recognized Indian tribe means an entity listed on the Department of the Interior's list under the Federally Recognized Indian Tribe List Act of 1994, which the Secretary currently acknowledges as an Indian tribe and with which the United States maintains a government-to-government relationship.

                Historical means before 1900.

                Indigenous means native to the continental United States in that at least part of the petitioner's territory at the time of first sustained contact extended into what is now the continental United States.

                Member of a petitioner means an individual who is recognized by the petitioner as meeting its membership criteria and who consents to being listed as a member of the petitioner.

                Office of Federal Acknowledgment or OFA means the Office of Federal Acknowledgment within the Office of the Assistant Secretary—Indian Affairs, Department of the Interior.

                Petitioner means any entity that has submitted a documented petition to OFA requesting Federal acknowledgment as a federally recognized Indian tribe.

                Previous Federal acknowledgment means action by the Federal government clearly premised on identification of a tribal political entity and indicating clearly the recognition of a relationship between that entity and the United States.

                Roll means a list exclusively of those individuals who have been determined by the tribe to meet the tribe's membership requirements as set forth in its governing document. In the absence of such a document, a roll means a list of those recognized as members by the tribe's governing body. In either case, those individuals on a roll must have affirmatively demonstrated consent to being listed as members.

                Secretary means the Secretary of the Interior within the Department of the Interior or that officer's authorized representative.

                Tribe means any Indian tribe, band, nation, pueblo, village or community.

              § 83.2
              What is the purpose of the regulations in this part?
              The regulations in this part implement Federal statutes for the benefit of Indian tribes by establishing procedures and criteria for the Department to use to determine whether a petitioner is an Indian tribe eligible for the special programs and services provided by the United States to Indians because of their status as Indians. A positive determination will result in Federal recognition status and the petitioner's addition to the Department's list of federally recognized Indian tribes. Federal recognition:
              (a) Is a prerequisite to the protection, services, and benefits of the Federal Government available to those that qualify as Indian tribes and possess a government-to-government relationship with the United States;
              (b) Means the tribe is entitled to the immunities and privileges available to other federally recognized Indian tribes;
              (c) Means the tribe has the responsibilities, powers, limitations, and obligations of other federally recognized Indian tribes; and
              (d) Subjects the Indian tribe to the same authority of Congress and the United States as other federally recognized Indian tribes.

              § 83.3
              Who does this part apply to?
              This part applies only to indigenous entities that are not federally recognized Indian tribes.

              § 83.4
              Who cannot be acknowledged under this part?
              The Department will not acknowledge:
              (a) An association, organization, corporation, or entity of any character formed in recent times unless the entity has only changed form by recently incorporating or otherwise formalizing its existing politically autonomous community;
              (b) A splinter group, political faction, community, or entity of any character that separates from the main body of a currently federally recognized Indian tribe, petitioner, or previous petitioner unless the entity can clearly demonstrate it has functioned from 1900 until the present as a politically autonomous community and meets § 83.11(f), even though some have regarded them as part of or associated in some manner with a federally recognized Indian tribe;
              (c) An entity that is, or an entity whose members are, subject to congressional legislation terminating or forbidding the government-to-government relationship; or
              (d) An entity that previously petitioned and was denied Federal acknowledgment under these regulations or under previous regulations in part 83 of this title (including reconstituted, splinter, spin-off, or component groups who were once part of previously denied petitioners).

              § 83.5
              How does a petitioner obtain Federal acknowledgment under this part?
              To be acknowledged as a federally recognized Indian tribe under this part, a petitioner must meet the Indian Entity Identification (§ 83.11(a)), Governing Document (§ 83.11(d)), Descent (§ 83.11(e)), Unique Membership (§ 83.11(f)), and Congressional Termination (§ 83.11(g)) Criteria and must:
              (a) Demonstrate previous Federal acknowledgment under § 83.12(a) and meet the criteria in § 83.12(b); or
              (b) Meet the Community (§ 83.11(b)) and Political Authority (§ 83.11(c)) Criteria.

              § 83.6
              What are the Department's duties?
              (a) The Department will publish in the Federal Register, by January 30 each year, a list of all Indian tribes which the Secretary recognizes to be eligible for the special programs and services provided by the United States to Indians because of their status as Indians, in accordance with the Federally Recognized Indian Tribe List Act of 1994. The list may be published more frequently, if the Assistant Secretary deems it necessary.
              (b) OFA will maintain guidelines limited to general suggestions on how and where to conduct research. The guidelines may be supplemented or updated as necessary. OFA will also make available examples of portions of documented petitions in the preferred format, though OFA will accept other formats.
              (c) OFA will, upon request, give prospective petitioners suggestions and advice on how to prepare the documented petition. OFA will not be responsible for the actual research on behalf of the petitioner.

              § 83.7
              How does this part apply to documented petitions submitted before August 17, 2015?
              (a) Any petitioner who has not submitted a complete documented petition as of July 31, 2015 must proceed under these revised regulations. We will notify these petitioners and provide them with a copy of the revised regulations by July 31, 2015.
              (b) By August 31, 2015, OFA will notify each petitioner that has submitted complete documented petitions but has not yet received a final agency decision that it must proceed under these revised regulations unless it chooses by September 29, 2015 to complete the petitioning process under the previous version of the acknowledgment regulations as published in 25 CFR part 83, revised as of April 1, 1994.
              (c) Any petitioner who has submitted a documented petition under the previous version of the acknowledgment regulations and chooses to proceed under these revised regulations does not need to submit a new documented petition, but may supplement its petition.

              § 83.8
              May the deadlines in this part be extended?
              (a) The AS-IA may extend any of the deadlines in this part upon a finding of good cause.
              (b) For deadlines applicable to the Department, AS-IA may extend the deadlines upon the consent of the petitioner.
              (c) If AS-IA grants a time extension, it will notify the petitioner and those listed in § 83.22(d).

              § 83.9
              How does the Paperwork Reduction Act affect the information collections in this part?

              The collections of information contained in this part have been approved by the Office of Management and Budget under 44 U.S.C. 3501 et seq. and assigned OMB Control Number 1076-0104. Response is required to obtain a benefit. A Federal agency may not conduct or sponsor, and you are not required to respond to, a collection of information unless the form or regulation requesting the information displays a currently valid OMB Control Number. Send comments regarding this collection of information, including suggestions for reducing the burden, to the Information Collection Clearance Officer—Indian Affairs, 1849 C Street, NW., Washington, DC 20240.

            Subpart B—Criteria for Federal Acknowledgment

              § 83.10
              How will the Department evaluate each of the criteria?
              (a) The Department will consider a criterion in § 83.11 to be met if the available evidence establishes a reasonable likelihood of the validity of the facts relating to that criterion.
              (1) The Department will not require conclusive proof of the facts relating to a criterion in order to consider the criterion met.
              (2) The Department will require existence of community and political influence or authority be demonstrated on a substantially continuous basis, but this demonstration does not require meeting these criteria at every point in time. Fluctuations in tribal activity during various years will not in themselves be a cause for denial of acknowledgment under these criteria.
              (3) The petitioner may use the same evidence to establish more than one criterion.

              (4) Evidence or methodology that the Department found sufficient to satisfy any particular criterion in a previous decision will be sufficient to satisfy the criterion for a present petitioner.

              (b) When evaluating a petition, the Department will:
              (1) Allow criteria to be met by any suitable evidence, rather than requiring the specific forms of evidence stated in the criteria;
              (2) Take into account historical situations and time periods for which evidence is demonstrably limited or not available;
              (3) Take into account the limitations inherent in demonstrating historical existence of community and political influence or authority;
              (4) Require a demonstration that the criteria are met on a substantially continuous basis, meaning without substantial interruption; and
              (5) Apply these criteria in context with the history, regional differences, culture, and social organization of the petitioner.

              § 83.11
              What are the criteria for acknowledgment as a federally recognized Indian tribe?
              The criteria for acknowledgment as a federally recognized Indian tribe are delineated in paragraphs (a) through (g) of this section.
              (a) Indian entity identification. The petitioner has been identified as an American Indian entity on a substantially continuous basis since 1900. Evidence that the group's character as an Indian entity has from time to time been denied will not be considered to be conclusive evidence that this criterion has not been met. Evidence to be relied upon in determining a group's Indian identity may include one or a combination of the following, as well as other evidence of identification.
              (1) Identification as an Indian entity by Federal authorities.
              (2) Relationships with State governments based on identification of the group as Indian.
              (3) Dealings with a county, parish, or other local government in a relationship based on the group's Indian identity.
              (4) Identification as an Indian entity by anthropologists, historians, and/or other scholars.
              (5) Identification as an Indian entity in newspapers and books.
              (6) Identification as an Indian entity in relationships with Indian tribes or with national, regional, or state Indian organizations.
              (7) Identification as an Indian entity by the petitioner itself.
              (b) Community. The petitioner comprises a distinct community and demonstrates that it existed as a community from 1900 until the present. Distinct community means an entity with consistent interactions and significant social relationships within its membership and whose members are differentiated from and distinct from nonmembers. Distinct community must be understood flexibly in the context of the history, geography, culture, and social organization of the entity. The petitioner may demonstrate that it meets this criterion by providing evidence for known adult members or by providing evidence of relationships of a reliable, statistically significant sample of known adult members.
              (1) The petitioner may demonstrate that it meets this criterion at a given point in time by some combination of two or more of the following forms of evidence or by other evidence to show that a significant and meaningful portion of the petitioner's members constituted a distinct community at a given point in time:
              (i) Rates or patterns of known marriages within the entity, or, as may be culturally required, known patterned out-marriages;
              (ii) Social relationships connecting individual members;
              (iii) Rates or patterns of informal social interaction that exist broadly among the members of the entity;
              (iv) Shared or cooperative labor or other economic activity among members;
              (v) Strong patterns of discrimination or other social distinctions by non-members;
              (vi) Shared sacred or secular ritual activity;

              (vii) Cultural patterns shared among a portion of the entity that are different from those of the non-Indian populations with whom it interacts. These patterns must function as more than a symbolic identification of the group as Indian. They may include, but are not limited to, language, kinship organization or system, religious beliefs or practices, and ceremonies;

              (viii) The persistence of a collective identity continuously over a period of more than 50 years, notwithstanding any absence of or changes in name;
              (ix) Land set aside by a State for the petitioner, or collective ancestors of the petitioner, that was actively used by the community for that time period;
              (x) Children of members from a geographic area were placed in Indian boarding schools or other Indian educational institutions, to the extent that supporting evidence documents the community claimed; or
              (xi) A demonstration of political influence under the criterion in § 83.11(c)(1) will be evidence for demonstrating distinct community for that same time period.
              (2) The petitioner will be considered to have provided more than sufficient evidence to demonstrate distinct community and political authority under § 83.11(c) at a given point in time if the evidence demonstrates any one of the following:
              (i) More than 50 percent of the members reside in a geographical area exclusively or almost exclusively composed of members of the entity, and the balance of the entity maintains consistent interaction with some members residing in that area;
              (ii) At least 50 percent of the members of the entity were married to other members of the entity;
              (iii) At least 50 percent of the entity members maintain distinct cultural patterns such as, but not limited to, language, kinship system, religious beliefs and practices, or ceremonies;
              (iv) There are distinct community social institutions encompassing at least 50 percent of the members, such as kinship organizations, formal or informal economic cooperation, or religious organizations; or
              (v) The petitioner has met the criterion in § 83.11(c) using evidence described in § 83.11(c)(2).
              (c) Political influence or authority. The petitioner has maintained political influence or authority over its members as an autonomous entity from 1900 until the present. Political influence or authority means the entity uses a council, leadership, internal process, or other mechanism as a means of influencing or controlling the behavior of its members in significant respects, making decisions for the entity which substantially affect its members, and/or representing the entity in dealing with outsiders in matters of consequence. This process is to be understood flexibly in the context of the history, culture, and social organization of the entity.
              (1) The petitioner may demonstrate that it meets this criterion by some combination of two or more of the following forms of evidence or by other evidence that the petitioner had political influence or authority over its members as an autonomous entity:
              (i) The entity is able to mobilize significant numbers of members and significant resources from its members for entity purposes.
              (ii) Many of the membership consider issues acted upon or actions taken by entity leaders or governing bodies to be of importance.
              (iii) There is widespread knowledge, communication, or involvement in political processes by many of the entity's members.
              (iv) The entity meets the criterion in § 83.11(b) at greater than or equal to the percentages set forth under § 83.11(b)(2).
              (v) There are internal conflicts that show controversy over valued entity goals, properties, policies, processes, or decisions.
              (vi) The government of a federally recognized Indian tribe has a significant relationship with the leaders or the governing body of the petitioner.
              (vii) Land set aside by a State for petitioner, or collective ancestors of the petitioner, that is actively used for that time period.
              (viii) There is a continuous line of entity leaders and a means of selection or acquiescence by a significant number of the entity's members.
              (2) The petitioner will be considered to have provided sufficient evidence of political influence or authority at a given point in time if the evidence demonstrates any one of the following:
              (i) Entity leaders or other internal mechanisms exist or existed that:

              (A) Allocate entity resources such as land, residence rights, and the like on a consistent basis;

              (B) Settle disputes between members or subgroups by mediation or other means on a regular basis;
              (C) Exert strong influence on the behavior of individual members, such as the establishment or maintenance of norms or the enforcement of sanctions to direct or control behavior; or
              (D) Organize or influence economic subsistence activities among the members, including shared or cooperative labor.
              (ii) The petitioner has met the requirements in § 83.11(b)(2) at a given time.
              (d) Governing document. The petitioner must provide:
              (1) A copy of the entity's present governing document, including its membership criteria; or
              (2) In the absence of a governing document, a written statement describing in full its membership criteria and current governing procedures.
              (e) Descent. The petitioner's membership consists of individuals who descend from a historical Indian tribe (or from historical Indian tribes that combined and functioned as a single autonomous political entity).
              (1) The petitioner satisfies this criterion by demonstrating that the petitioner's members descend from a tribal roll directed by Congress or prepared by the Secretary on a descendancy basis for purposes of distributing claims money, providing allotments, providing a tribal census, or other purposes, unless significant countervailing evidence establishes that the tribal roll is substantively inaccurate; or
              (2) If no tribal roll was directed by Congress or prepared by the Secretary, the petitioner satisfies this criterion by demonstrating descent from a historical Indian tribe (or from historical Indian tribes that combined and functioned as a single autonomous political entity) with sufficient evidence including, but not limited to, one or a combination of the following identifying present members or ancestors of present members as being descendants of a historical Indian tribe (or of historical Indian tribes that combined and functioned as a single autonomous political entity):
              (i) Federal, State, or other official records or evidence;
              (ii) Church, school, or other similar enrollment records;
              (iii) Records created by historians and anthropologists in historical times;
              (iv) Affidavits of recognition by tribal elders, leaders, or the tribal governing body with personal knowledge; and
              (v) Other records or evidence.
              (f) Unique membership. The petitioner's membership is composed principally of persons who are not members of any federally recognized Indian tribe. However, a petitioner may be acknowledged even if its membership is composed principally of persons whose names have appeared on rolls of, or who have been otherwise associated with, a federally recognized Indian tribe, if the petitioner demonstrates that:
              (1) It has functioned as a separate politically autonomous community by satisfying criteria in paragraphs (b) and (c) of this section; and
              (2) Its members have provided written confirmation of their membership in the petitioner.
              (g) Congressional termination. Neither the petitioner nor its members are the subject of congressional legislation that has expressly terminated or forbidden the Federal relationship. The Department must determine whether the petitioner meets this criterion, and the petitioner is not required to submit evidence to meet it.

              § 83.12
              What are the criteria for a previously federally acknowledged petitioner?

              (a) The petitioner may prove it was previously acknowledged as a federally recognized Indian tribe, or is a portion that evolved out of a previously federally recognized Indian tribe, by providing substantial evidence of unambiguous Federal acknowledgment, meaning that the United States Government recognized the petitioner as an Indian tribe eligible for the special programs and services provided by the United States to Indians because of their status as Indians with which the United States carried on a relationship at some prior date including, but not limited to, evidence that the petitioner had:

              (1) Treaty relations with the United States;
              (2) Been denominated a tribe by act of Congress or Executive Order;
              (3) Been treated by the Federal Government as having collective rights in tribal lands or funds; or
              (4) Land held for it or its collective ancestors by the United States.
              (b) Once the petitioner establishes that it was previously acknowledged, it must demonstrate that it meets:
              (1) At present, the Community Criterion; and
              (2) Since the time of previous Federal acknowledgment or 1900, whichever is later, the Indian Entity Identification Criterion and Political Authority Criterion.

            Subpart C—Process for Federal Acknowledgment

              Documented Petition Submission and Review

                § 83.20
                How does an entity request Federal acknowledgment?
                Any entity that believes it can satisfy the criteria in this part may submit a documented petition under this part to: Department of the Interior, Office of the Assistant Secretary—Indian Affairs, Attention: Office of Federal Acknowledgment, Mail Stop 4071 MIB, 1849 C Street NW, Washington, DC 20240.
                [83 FR 33826, July 18, 2018]

                § 83.21
                What must a documented petition include?
                (a) The documented petition may be in any readable form and must include the following:
                (1) A certification, signed and dated by the petitioner's governing body, stating that it is the petitioner's official documented petition;
                (2) A concise written narrative, with citations to supporting documentation, thoroughly explaining how the petitioner meets each of the criteria in § 83.11, except the Congressional Termination Criterion (§ 83.11 (g))—
                (i) If the petitioner chooses to provide explanations of and supporting documentation for the Congressional Termination Criterion (§ 83.11 (g)), the Department will accept it; but
                (ii) The Department will conduct the research necessary to determine whether the petitioner meets the Congressional Termination Criterion (§ 83.11 (g)).
                (3) Supporting documentation cited in the written narrative and containing specific, detailed evidence that the petitioner meets each of the criteria in § 83.11;
                (4) Membership lists and explanations, including:
                (i) An official current membership list, separately certified by the petitioner's governing body, of all known current members of the petitioner, including each member's full name (including maiden name, if any), date of birth, and current residential address;
                (ii) A statement describing the circumstances surrounding the preparation of the current membership list;
                (iii) A copy of each available former list of members based on the petitioner's own defined criteria; and
                (iv) A statement describing the circumstances surrounding the preparation of the former membership lists, insofar as possible.
                (b) If the documented petition contains any information that is protectable under Federal law such as the Privacy Act and Freedom of Information Act, the petitioner must provide a redacted version, an unredacted version of the relevant pages, and an explanation of the legal basis for withholding such information from public release. The Department will not publicly release information that is protectable under Federal law, but may release redacted information if not protectable under Federal law.

                § 83.22
                What notice will OFA provide upon receipt of a documented petition?
                When OFA receives a documented petition, it will do all of the following:
                (a) Within 30 days of receipt, acknowledge receipt in writing to the petitioner.
                (b) Within 60 days of receipt:

                (1) Publish notice of receipt of the documented petition in the Federal Register and publish the following on the OFA Web site:

                (i) The narrative portion of the documented petition, as submitted by the petitioner (with any redactions appropriate under § 83.21(b));
                (ii) The name, location, and mailing address of the petitioner and other information to identify the entity;
                (iii) The date of receipt;
                (iv) The opportunity for individuals and entities to submit comments and evidence supporting or opposing the petitioner's request for acknowledgment within 120 days of the date of the Web site posting; and
                (v) The opportunity for individuals and entities to request to be kept informed of general actions regarding a specific petitioner.
                (2) Notify, in writing, the following:
                (i) The governor of the State in which the petitioner is located;
                (ii) The attorney general of the State in which the petitioner is located;
                (iii) The government of the county-level (or equivalent) jurisdiction in which the petitioner is located; and
                (iv) Notify any recognized tribe and any petitioner that appears to have a historical or present relationship with the petitioner or that may otherwise be considered to have a potential interest in the acknowledgment determination.
                (c) Publish the following additional information to the OFA Web site:
                (1) Other portions of the documented petition, to the extent feasible and allowable under Federal law, except documentation and information protectable from disclosure under Federal law, as identified by Petitioner under § 83.21(b) or otherwise;
                (2) Any comments or materials submitted by third parties to OFA relating to the documented petition;
                (3) Any substantive letter, proposed finding, recommended decision, and final determination issued by the Department;
                (4) OFA's contact list for each petitioner, including the point of contact for the petitioner; attorneys, and representatives; and
                (5) Contact information for any other individuals and entities that request to be kept informed of general actions regarding the petitioner.
                (d) All subsequent notices that the Department provides under this part will be provided via the most efficient means for OFA to:
                (1) The governor of the State in which the petitioner is located;
                (2) The attorney general of the State in which the petitioner is located;
                (3) The government of the county-level (or equivalent) jurisdiction in which the petitioner is located;
                (4) Any recognized tribe and any petitioner that appears to have a historical or present relationship with the petitioner or that may otherwise be considered to have a potential interest in the acknowledgment determination; and
                (5) Any individuals and entities that request to be kept informed of general actions regarding a specific petitioner.

              Review of Documented Petition

                § 83.23
                How will OFA determine which documented petition to consider first?
                (a) OFA will begin reviews of documented petitions in the order of their receipt.
                (1) At each successive review stage, there may be points at which OFA is waiting on additional information or clarification from the petitioner. Upon receipt of the additional information or clarification, OFA will return to its review of the documented petition as soon as possible.
                (2) To the extent possible, OFA will give highest priority to completing reviews of documented petitions it has already begun to review.
                (b) OFA will maintain a numbered register of documented petitions that have been received.

                (c) OFA will maintain a numbered register of any letters of intent, which were allowable prior to July 31, 2015, or incomplete (i.e., not fully documented) petitions and the original dates of their filing with the Department. If two or more documented petitions are ready for review on the same date, this register will determine the order of consideration.

                § 83.24
                What opportunity will the petitioner have to respond to comments before OFA reviews the petition?

                Before beginning review of a documented petition, OFA will provide the petitioner with any comments on the petition received from individuals or entities under § 83.22(b) and provide the petitioner with 90 days to respond to such comments. OFA will not begin review until it receives the petitioner's response to the comments or the petitioner requests that OFA proceed without its response.

                § 83.25
                Who will OFA notify when it begins review of a documented petition?
                OFA will notify the petitioner and those listed in § 83.22(d) when it begins review of a documented petition and will provide the petitioner and those listed in § 83.22(d) with:
                (a) The name, office address, and telephone number of the staff member with primary administrative responsibility for the petition;
                (b) The names of the researchers conducting the evaluation of the petition; and
                (c) The name of their supervisor.

                § 83.26
                How will OFA review a documented petition?
                (a) Phase I. When reviewing a documented petition, OFA will first determine if the petitioner meets the Governing Document Criterion (§ 83.11(d)), Descent Criterion (§ 83.11(e)), Unique Membership Criterion (§ 83.11(f)), and Termination Criterion (§ 83.11(g)), in accordance with the following steps.
                (1)(i) OFA will conduct a Phase I technical assistance review and notify the petitioner by letter of any deficiencies that would prevent the petitioner from meeting the Governing Document, Descent, Unique Membership, or Termination Criteria. Upon receipt of the letter, the petitioner must submit a written response that:
                (A) Withdraws the documented petition to further prepare the petition;
                (B) Submits additional information and/or clarification; or
                (C) Asks OFA to proceed with the review.
                (ii) If the documented petition claims previous Federal acknowledgment and/or includes evidence of previous Federal acknowledgment, the Phase I technical assistance review will include a review to determine whether that evidence meets the requirements of previous Federal acknowledgment (§ 83.12).
                (2) Following the receipt of the petitioner's written response to the Phase I technical assistance review, OFA will provide the petitioner with:
                (i) Any comments and evidence OFA may consider that the petitioner does not already have, to the extent allowable by Federal law; and
                (ii) The opportunity to respond in writing to the comments and evidence provided.
                (3) OFA will publish a negative proposed finding if it issues a deficiency letter under paragraph (a)(1)(i) of this section, and the petitioner:
                (i) Does not withdraw the documented petition or does not respond with information or clarification sufficient to address the deficiencies; or
                (ii) Asks OFA in writing to proceed with the review.
                (4) OFA will publish a positive proposed finding and proceed to Phase II if it determines that the petitioner meets the Governing Document, Descent, Unique Membership, and Termination criteria.
                (b) Phase II. If the petitioner meets the Governing Document, Descent, Unique Membership, and Termination criteria, OFA will next review whether the petitioner meets the Indian Entity Identification Criterion (§ 83.11(a)), the Community Criterion (§ 83.11(b)), and the Political Influence/Authority Criterion (§ 83.11(c)). If the petitioner claims previous Federal acknowledgment, the Department will also review whether petitioner proves previous Federal acknowledgment and, if so, will review whether the petitioner meets the criteria under § 83.12(b).
                (1) OFA will conduct a Phase II technical assistance review and notify the petitioner by letter of any deficiencies that would prevent the petitioner from meeting these criteria. Upon receipt of the letter, the petitioner must submit a written response that:
                (i) Withdraws the documented petition to further prepare the petition;
                (ii) Provides additional information and/or clarification; or
                (iii) Asks OFA to proceed with the review.
                (2) Following receipt of the petitioner's written response to the Phase II technical assistance review, OFA will provide the petitioner with:

                (i) Any comments and evidence OFA may consider in preparing the proposed finding that the petitioner does not already have, to the extent allowable by Federal law; and
                (ii) The opportunity to respond in writing to the comments and evidence provided.
                (3) OFA will then review the record to determine:
                (i) For petitioners with previous Federal acknowledgment, whether the criteria at § 83.12(b) are met; or
                (ii) For petitioners without previous Federal acknowledgment, whether the Indian Entity Identification (§ 83.11(a)), Community (§ 83.11(b)) and Political Authority (§ 83.11(c)) Criteria are met.
                (4) OFA will publish a negative proposed finding if it issues a deficiency letter under paragraph (a)(1) of this section, and the petitioner:
                (i) Does not withdraw the documented petition or does not respond with information or clarification sufficient to address the deficiencies; or
                (ii) Asks OFA in writing to proceed with the review.
                (5) OFA will publish a positive proposed finding if it determines that the petitioner meets the Indian Entity Identification (§ 83.11(a)), Community (§ 83.11(b)) and Political Authority (§ 83.11(c)) Criteria or, for petitioners with previous Federal acknowledgment, that the petitioner meets the criteria at § 83.12(b).

                § 83.27
                What are technical assistance reviews?
                Technical assistance reviews are preliminary reviews for OFA to tell the petitioner where there appear to be evidentiary gaps for the criteria that will be under review in that phase and to provide the petitioner with an opportunity to supplement or revise the documented petition.

                § 83.28
                When does OFA review for previous Federal acknowledgment?
                (a) OFA reviews the documented petition for previous Federal acknowledgment during the Phase II technical assistance review of the documented petition.
                (b) If OFA cannot verify previous Federal acknowledgment during this technical assistance review, the petitioner must provide additional evidence. If a petitioner claiming previous Federal acknowledgment does not respond or does not demonstrate the claim of previous Federal acknowledgment, OFA will consider its documented petition on the same basis as documented petitions submitted by petitioners not claiming previous Federal acknowledgment.

                § 83.29
                What will OFA consider in its reviews?
                (a) In any review, OFA will consider the documented petition and evidence submitted by the petitioner, any comments and evidence on the petition received during the comment period, and petitioners' responses to comments and evidence received during the response period.
                (b) OFA may also:
                (1) Initiate and consider other research for any purpose relative to analyzing the documented petition and obtaining additional information about the petitioner's status; and
                (2) Request and consider timely submitted additional explanations and information from commenting parties to support or supplement their comments on the proposed finding and from the petitioner to support or supplement their responses to comments.
                (c) OFA must provide the petitioner with the additional material obtained in paragraph (b) of this section, and provide the petitioner with the opportunity to respond to the additional material. The additional material and any response by the petitioner will become part of the record.

                § 83.30
                Can a petitioner withdraw its documented petition?
                A petitioner can withdraw its documented petition at any point in the process but the petition will be placed at the end of the numbered register of documented petitions upon re-submission and may not regain its initial priority number.

                § 83.31
                Can OFA suspend review of a documented petition?
                (a) OFA can suspend review of a documented petition, either conditionally or for a stated period, upon:

                (1) A showing to the petitioner that there are technical or administrative problems that temporarily preclude continuing review; and
                (2) Approval by the Assistant Secretary.
                (b) Upon resolution of the technical or administrative problems that led to the suspension, the documented petition will have the same priority on the numbered register of documented petitions to the extent possible.
                (1) OFA will notify the petitioner and those listed in § 83.22(d) when it suspends and when it resumes review of the documented petition.
                (2) Upon the resumption of review, OFA will have the full six months to issue a proposed finding.

              Proposed Finding

                § 83.32
                When will OFA issue a proposed finding?
                (a) OFA will issue a proposed finding as shown in the following table:

                    OFA must
                    within . . .

                    (1) Complete its review under Phase I and either issue a negative proposed finding and publish a notice of availability in the Federal Register, or proceed to review under Phase II
                    six months after notifying the petitioner under § 83.25 that OFA has begun review of the petition.

                    (2) Complete its review under Phase II and issue a proposed finding and publish a notice of availability in the Federal Register

                    six months after the deadline in paragraph (a)(1) of this section.

                (b) The times set out in paragraph (a) of this section will be suspended any time the Department is waiting for a response or additional information from the petitioner.
                (c) OFA will strive to limit the proposed finding and any reports to no more than 100 pages, cumulatively, excluding source documents.

                § 83.33
                What will the proposed finding include?
                The proposed finding will summarize the evidence, reasoning, and analyses that are the basis for OFA's proposed finding regarding whether the petitioner meets the applicable criteria.
                (a) A Phase I negative proposed finding will address that the petitioner fails to meet any one or more of the following criteria: Governing Document (§ 83.11(d)), Descent (§ 83.11(e)), Unique Membership (§ 83.11(f)), or Congressional Termination (§ 83.11(g)).
                (b) A Phase II proposed finding will address whether the petitioner meets the following criteria: Indian Entity Existence (§ 83.11(a)), Community (§ 83.11(b)), and Political Influence/Authority (§ 83.11(c)).

                § 83.34
                What notice of the proposed finding will OFA provide?

                In addition to publishing notice of the proposed finding in the Federal Register, OFA will:
                (a) Provide copies of the proposed finding and any supporting reports to the petitioner and those listed in § 83.22(d); and
                (b) Publish the proposed finding and reports on the OFA Web site.

              Proposed Finding—Comment and Response Periods, Hearing

                § 83.35
                What opportunity to comment will there be after OFA issues the proposed finding?
                (a) Publication of notice of the proposed finding will be followed by a 120-day comment period. During this comment period, the petitioner or any individual or entity may submit the following to OFA to rebut or support the proposed finding:
                (1) Comments, with citations to and explanations of supporting evidence; and
                (2) Evidence cited and explained in the comments.
                (b) Any individual or entity that submits comments and evidence must provide the petitioner with a copy of their submission.

                § 83.36
                What procedure follows the end of the comment period on a favorable proposed finding?
                (a) At the end of the comment period for a favorable proposed finding, AS-IA will automatically issue a final determination acknowledging the petitioner as a federally recognized Indian tribe if OFA does not receive a timely objection with evidence challenging the proposed finding that the petitioner meets the acknowledgment criteria.

                (b) If OFA has received a timely objection and evidence challenging the favorable proposed finding, then the petitioner will have 60 days to submit a written response, with citations to and explanations of supporting evidence, and the supporting evidence cited and explained in the response. The Department will not consider additional comments or evidence on the proposed finding submitted by individuals or entities during this response period.

                § 83.37
                What procedure follows the end of the comment period on a negative proposed finding?
                If OFA has received comments on the negative proposed finding, then the petitioner will have 60 days to submit a written response, with citations to and explanations of supporting evidence, and the supporting evidence cited and explained in the response. The Department will not consider additional comments or evidence on the proposed finding submitted by individuals or entities during this response period.

                § 83.38
                What options does the petitioner have at the end of the response period on a negative proposed finding?
                (a) At the end of the response period for a negative proposed finding, the petitioner will have 60 days to elect to challenge the proposed finding before an ALJ by sending to the Departmental Cases Hearings Division, Office of Hearings and Appeals, with a copy to OFA a written election of hearing that lists:
                (1) Grounds for challenging the proposed finding, including issues of law and issues of material fact; and
                (2) The witnesses and exhibits the petitioner intends to present at the hearing, other than solely for impeachment purposes, including:
                (i) For each witness listed, his or her name, address, telephone number, and qualifications and a brief narrative summary of his or her expected testimony; and
                (ii) For each exhibit listed, a statement confirming that the exhibit is in the administrative record reviewed by OFA or is a previous final determination of a petitioner issued by the Department.
                (b) The Department will not consider additional comments or evidence on the proposed finding submitted by individuals or entities during this period.

                § 83.39
                What is the procedure if the petitioner elects to have a hearing before an ALJ?
                (a) If the petitioner elects a hearing to challenge the proposed finding before an ALJ, OFA will provide to the Departmental Cases Hearings Division, Office of Hearings and Appeals, copies of the negative proposed finding, critical documents from the administrative record that are central to the portions of the negative proposed finding at issue, and any comments and evidence and responses sent in response to the proposed finding.
                (1) Within 5 business days after receipt of the petitioner's hearing election, OFA will send notice of the election to each of those listed in § 83.22(d) and the Departmental Cases Hearings Division by express mail or courier service for delivery on the next business day.
                (2) OFA will retain custody of the entire, original administrative record.
                (b) Hearing process. The assigned ALJ will conduct the hearing process in accordance with 43 CFR part 4, subpart K.
                (c) Hearing record. The hearing will be on the record before an ALJ. The hearing record will become part of the record considered by AS-IA in reaching a final determination.
                (d) Recommended decision. The ALJ will issue a recommended decision and forward it along with the hearing record to the AS-IA in accordance with the timeline and procedures in 43 CFR part 4, subpart K.

              AS-IA Evaluation and Preparation of Final Determination

                § 83.40
                When will the Assistant Secretary begin review?
                (a) AS-IA will begin his/her review in accordance with the following table:

                    If the PF was:
                    And:
                    AS-IA will begin review upon:

                    (1) Negative
                    The petitioner did not elect a hearing
                    Expiration of the period for the petitioner to elect a hearing.

                    (2) Negative
                    The petitioner elected a hearing
                    Receipt of the ALJ's recommended decision.

                    (3) Positive
                    No objections with evidence were received
                    Expiration of the comment period for the positive PF.

                    (4) Positive
                    Objections with evidence were received
                    Expiration of the period for the petitioner to respond to comments on the positive PF.

                (b) AS-IA will notify the petitioner and those listed in § 83.22(d) of the date he/she begins consideration.

                § 83.41
                What will the Assistant Secretary consider in his/her review?
                (a) AS-IA will consider all the evidence in the administrative record, including any comments and responses on the proposed finding and any the hearing transcript and recommended decision.
                (b) AS-IA will not consider comments submitted after the close of the comment period in § 83.35, the response period in § 83.36 or § 83.37, or the hearing election period in § 83.38.

                § 83.42
                When will the Assistant Secretary issue a final determination?

                (a) AS-IA will issue a final determination and publish a notice of availability in the Federal Register within 90 days from the date on which he/she begins its review. AS-IA will also
                (1) Provide copies of the final determination to the petitioner and those listed in § 83.22(d); and
                (2) Make copies of the final determination available to others upon written request.
                (b) AS-IA will strive to limit the final determination and any reports to no more than 100 pages, cumulatively, excluding source documents.

                § 83.43
                How will the Assistant Secretary make the determination decision?
                (a) AS-IA will issue a final determination granting acknowledgment as a federally recognized Indian tribe when AS-IA finds that the petitioner meets the Governing Document (§ 83.11(d)), Descent (§ 83.11(e)), Unique Membership (§ 83.11(f)), and Congressional Termination (§ 83.11(g)) Criteria and:
                (1) Demonstrates previous Federal acknowledgment under § 83.12(a) and meets the criteria in § 83.12(b); or
                (2) Meets the Indian Entity Identification (§ 83.11(a)), Community (§ 83.11(b)) and Political Authority (§ 83.11(c)) Criteria.
                (b) AS-IA will issue a final determination declining acknowledgement as a federally recognized Indian tribe when he/she finds that the petitioner:
                (1) In Phase I, does not meet the Governing Document (§ 83.11(d)), Descent (§ 83.11(e)), Unique Membership (§ 83.11(f)), or Congressional Termination (§ 83.11(g)) Criteria: or
                (2) In Phase II, does not:
                (i) Demonstrate previous Federal acknowledgment under § 83.12(a) and meet the criteria in § 83.12(b); or
                (ii) Meet the Indian Entity Identification (§ 83.11(a)), Community (§ 83.11(b)) and Political Authority (§ 83.11(c)) Criteria.

                § 83.44
                Is the Assistant Secretary's final determination final for the Department?
                Yes. The AS-IA's final determination is final for the Department and is a final agency action under the Administrative Procedure Act (5 U.S.C. 704).

                § 83.45
                When will the final determination be effective?

                The final determination will become immediately effective. Within 10 business days of the decision, the Assistant Secretary will submit to the Federal Register a notice of the final determination to be published in the Federal Register.

                § 83.46
                How is a petitioner with a positive final determination integrated into Federal programs as a federally recognized Indian tribe?
                (a) Upon acknowledgment, the petitioner will be a federally recognized Indian tribe entitled to the privileges and immunities available to federally recognized Indian tribes. It will be included on the list of federally recognized Indian tribes in the next scheduled publication.
                (b) Within six months after acknowledgment, the appropriate Bureau of Indian Affairs Regional Office will consult with the newly federally recognized Indian tribe and develop, in cooperation with the federally recognized Indian tribe, a determination of needs and a recommended budget. These will be forwarded to the Assistant Secretary. The recommended budget will then be considered with other recommendations by the Assistant Secretary in the usual budget request process.

                (c) While the newly federally acknowledged Indian tribe is eligible for benefits and services available to federally recognized Indian tribes, acknowledgment as a federally recognized Indian tribe does not create immediate access to existing programs. The newly federally acknowledged Indian tribe may participate in existing programs after it meets the specific program requirements, if any, and upon appropriation of funds by Congress. Requests for appropriations will follow a determination of the needs of the newly federally acknowledged Indian tribe.

          Pt. 84
          PART 84—ENCUMBRANCES OF TRIBAL LAND—CONTRACT APPROVALS

            Sec.
            84.001
            What is the purpose of this part?
            84.002
            What terms must I know?
            84.003
            What types of contracts and agreements require Secretarial approval under this part?
            84.004
            Are there types of contracts and agreements that do not require Secretarial approval under this part?
            84.005
            Will the Secretary approve contracts or agreements even where such approval is not required under this part?
            84.006
            Under what circumstances will the Secretary disapprove a contract or agreement that requires Secretarial approval under this part?
            84.007
            What is the status of a contract or agreement that requires Secretarial approval under this part but has not yet been approved?
            84.008
            What is the effect of the Secretary's disapproval of a contract or agreement that requires Secretarial approval under this part?

            Authority:
            25 U.S.C. 81, Pub. L. 106-179.

            Source:
            66 FR 38923, July 26, 2001, unless otherwise noted.

            § 84.001
            What is the purpose of this part?
            The purpose of this part is to implement the provisions of the Indian Tribal Economic Development and Contract Encouragement Act of 2000, Public Law 106-179, which amends section 2103 of the Revised Statutes, found at 25 U.S.C. 81.

            § 84.002
            What terms must I know?
            The Act means the Indian Tribal Economic Development and Contract Encouragement Act of 2000, Public Law 106-179, which amends section 2103 of the Revised Statutes, found at 25 U.S.C. 81.

              Encumber means to attach a claim, lien, charge, right of entry or liability to real property (referred to generally as encumbrances). Encumbrances covered by this part may include leasehold mortgages, easements, and other contracts or agreements that by their terms could give to a third party exclusive or nearly exclusive proprietary control over tribal land.

              Indian tribe, as defined by the Act, means any Indian tribe, nation, or other organized group or community, including any Alaska Native Village or regional or village corporation as defined in or established under the Alaska Native Claims Settlement Act, which is recognized as eligible for special programs and services provided by the Secretary to Indians because of their status as Indians.

              Secretary means the Secretary of the Interior or his or her designated representative.

              Tribal lands means those lands held by the United States in trust for an Indian tribe or those lands owned by an Indian tribe subject to federal restrictions against alienation, as referred to Public Law 106-179 as “Indian lands.”

            § 84.003
            What types of contracts and agreements require Secretarial approval under this part?
            Unless otherwise provided in this part, contracts and agreements entered into by an Indian tribe that encumber trial lands for a period of seven or more years require Secretarial approval under this part.

            § 84.004
            Are there types of contracts and agreements that do not require Secretarial approval under this part?
            Yes, the following types of contracts or agreements do not require Secretarial approval under this part:

            (a) Contracts or agreements otherwise reviewed and approved by the Secretary under this title or other federal law or regulation. See, for example, 25 CFR parts 152 (patents in fee, certificates or competency); 162 (non-mineral leases, leasehold mortgages); 163 (timber contracts); 166 (grazing permits); 169 (rights-of-way); 200 (coal leases); 211 (mineral leases); 216 (surface mining permits and leases); and 225 (mineral development agreements);
            (b) Leases of tribal land that are exempt from approval by the Secretary under 25 U.S.C. 415 or 25 U.S.C. 477;
            (c) Sublease and assignments of leases of tribal land that do not require approval by the Secretary under part 162 of this title;
            (d) Contracts or agreements that convey to tribal members any rights for temporary use of tribal lands, assigned by Indian tribes in accordance with tribal laws or custom;
            (e) Contracts or agreements that do not convey exclusive or nearly exclusive proprietary control over tribal lands for a period of seven years or more;
            (f) Contracts or agreements that are exempt from Secretarial approval under the terms of a corporate charter authorized by 25 U.S.C. 477;
            (g) Tribal attorney contracts, including those for the Five Civilized Tribes that are subject to our approval under 25 U.S.C. 82a;
            (h) Contracts or agreements entered into in connection with a contract under the Indian Self-Determination Act, 25 U.S.C. 450f, or a compact under the Tribal Self-Governance Act, 25 U.S.C. 458aa.

            (i) Contracts or agreements that are subject to approval by the National Indian Gaming Commission under the Indian Gaming Regulatory Act, 25 U.S.C. 2701 et seq., and the Commission's regulations; or
            (j) Contracts or agreements relating to the use of tribal lands for hydropower projects where the tribal lands meet the definition of a “reservation” under the Federal Power Act (FPA), provided that:
            (1) Federal Energy Regulatory Commission (FERC) has issued a license or an exemption;
            (2) FERC has made the finding under section 4(e) of the FPA (16 U.S.C. 797(e)) that the license or exemption will not interfere or be inconsistent with the purpose for which such reservation was created or acquired; and
            (3) FERC license or exemption includes the Secretary's conditions for protection and utilization of the reservation under section 4(e) and payment of annual use charges to the tribe under section 10(e) of the FPA (16 U.S.C. 803(e)).

            § 84.005
            Will the Secretary approve contracts or agreements even where such approval is not required under this part?
            No, the Secretary will not approve contracts or agreements that do not encumber tribal lands for a period of seven or more years. Within thirty days after receipt of final, executed documents, the Secretary will return such contracts and agreements with a statement explaining why Secretarial approval is not required. The provisions of the Act will not apply to those contracts or agreements the Secretary determines are not covered by the Act.

            § 84.006
            Under what circumstances will the Secretary disapprove a contract or agreement that requires Secretarial approval under this part?
            (a) The Secretary will disapprove a contract or agreement that requires Secretarial approval under this part if the Secretary determines that such contract or agreement:
            (1) Violates federal law; or
            (2) Does not contain at least one of the following provisions that:
            (i) Provides for remedies in the event the contract or agreement is breached;
            (ii) References a tribal code, ordinance or ruling of a court of competent jurisdiction that discloses the right of the tribe to assert sovereign immunity as a defense in an action brought against the tribe; or
            (iii) Includes an express waiver of the right of the tribe to assert sovereign immunity as a defense in any action brought against the tribe, including a waiver that limits the nature of relief that may be provided or the jurisdiction of a court with respect to such an action.
            (b) The Secretary will consult with the Indian tribe as soon as practicable before disapproving a contract or agreement regarding the elements of the contract or agreement that may lead to disapproval.

            § 84.007
            What is the status of a contract or agreement that requires Secretarial approval under this part but has not yet been approved?
            A contract or agreement that requires Secretarial approval under this part is not valid until the Secretary approves it.

            § 84.008
            What is the effect of the Secretary's disapproval of a contract or agreement that requires Secretarial approval under this part?
            If the Secretary disapproves a contract or agreement that requires Secretarial approval under this part, the contract or agreement is invalid as a matter of law.

          Pt. 87
          PART 87—USE OR DISTRIBUTION OF INDIAN JUDGMENT FUNDS

            Sec.
            87.1
            Definitions.
            87.2
            Purpose.
            87.3
            Time limits.
            87.4
            Conduct of hearings of record.
            87.5
            Submittal of proposed plan by Secretary.
            87.6
            Extension of period for submitting plans.
            87.7
            Submittal of proposed legislation by Secretary.
            87.8
            Enrollment aspects of plans.
            87.9
            Programing aspects of plans.
            87.10
            Per capita payment aspects of plans and protection of funds accruing to minors, legal incompetents and deceased beneficiaries.
            87.11
            Investment of judgment funds.
            87.12
            Insuring the proper performance of approved plans.

            Authority:
            5 U.S.C. 301; 87 Stat. 466, 467, 468.

            Source:
            39 FR 1835, Jan. 15, 1974, unless otherwise noted. Redesignated at 47 FR 13327, Mar. 30, 1982.

            § 87.1
            Definitions.
            As used in this part 87, terms shall have the meanings set forth in this section.
            (a) Act means the Act of October 19, 1973 (Pub. L. 93-134; 87 Stat. 466, 467, 468).
            (b) Secretary means the Secretary of the Interior or his authorized representative.
            (c) Commissioner means the Commissioner of Indian Affairs or his authorized representative.
            (d) Area Director means the Area Director or his equivalent of any one of the Area Offices of the Bureau of Indian Affairs or his authorized representative.
            (e) Superintendent means the Superintendent or Officer in Charge of any one of the Agency Offices or other local offices of the Bureau of Indian Affairs or his authorized representative.
            (f) Congressional Committees means the Committees on Interior and Insular Affairs of the Senate and House of Representatives of the United States.
            (g) Indian tribe or group means any Indian tribe, nation, band, pueblo, community or identifiable group of Indians, or Alaska Native entity.
            (h) Tribal governing body means, as recognized by the Secretary, the governing body of a formally organized or recognized tribe or group; the governing body of any informally organized tribe or group, the governing body of a formally organized Alaska Native entity or recognized tribe in Oklahoma, and for the purposes of the Act the recognized spokesmen or representatives of any descendant group.
            (i) Plan means the document submitted by the Secretary, together with all pertinent records, for the use or distribution of judgment funds, to the Congressional Committees.
            (j) Enrollment means that aspect of a plan which pertains to making or bringing current a roll of members of an organized, reservation-based tribe with membership criteria approved or accepted by the Secretary, a roll of members of an organized or recognized entity in Oklahoma, or Alaska or elsewhere, or a roll prepared for the purpose of making per capita payments for judgments awarded by the Indian Claims Commission or United States Court of Claims; or which pertains to using an historical roll or records of names, including tribal rolls closed and made final, for research or other purposes.
            (k) Program means that aspect of a plan which pertains to using part or all of the judgment funds for tribal social and economic development projects.
            (l) Per capita payment means that aspect of a plan which pertains to the individualization of the judgment funds in the form of shares to tribal members or to individual descendants.
            (m) Use or distribution means any utilization or disposition of the judgment funds, including programming, per capita payments, or a combination thereof.
            (n) Individual beneficiary means a tribal member or any individual descendant, found by the Secretary to be eligible to participate in a plan, who was born on or prior to, and is living on, the approval date of the plan.
            (o) Approval date means the date that a plan is approved by the Congress. Except for a plan disapproved by either House, the approval date of a plan shall be the sixtieth (60) day after formal submittal of a plan by the Secretary to the Congressional Committees, excluding days on which either the House of Representatives or the Senate is not in session because of an adjournment of more than three (3) calendar days to a day certain. In the event a proposed plan is disapproved by either House, or in the event the Secretary is unable to submit a plan and therefore proposes legislation, the approval date shall be the date of the enabling legislation for the disposition of the judgment funds.
            (p) Minor is an individual beneficiary who is eligible to participate in a per capita payment and who has not reached the age of eighteen (18) years.
            (q) Legal incompetent is an individual beneficiary eligible to participate in a per capita payment and who has been declared to be under a legal disability, other than being a minor, by a court of competent jurisdiction, including tribal courts.
            (r) Attorney fees and litigation expenses means all fees and expenses incurred in litigating and processing tribal claims before the Indian Claims Commission or the United States Court of Claims.

            § 87.2
            Purpose.
            The regulations in this part govern the preparation of proposed plans for the use or distribution, pursuant to the Act, of all judgment funds awarded from the date of the Act to Indian tribes and groups by the Indian Claims Commission or the United States Court of Claims, excepting any tribe or group whose trust relationship with the Federal Government has been terminated and for which there exists legislation authorizing the disposition of its judgment funds; and of all funds deriving from judgments entered prior to the date of the Act for which there has been no enabling legislation.

            § 87.3
            Time limits.
            (a) The Secretary shall cause to begin as early as possible the necessary research to determine the identity of the ultimate or present day beneficiaries of judgments. Such research shall be done under the direction of the Commissioner of Indian Affairs. The affected tribes or groups shall be encouraged to submit pertinent data. All pertinent data, including cultural, political and historical material, and records, including membership, census and other rolls shall be considered. If more than one entity is determined to be eligible to participate in the use or distribution of the funds, the results of the research shall include a proposed formula for the division or apportionment of the judgment funds among or between the involved entities.
            (b) The results of all research shall be provided to the governing bodies of all affected tribes and groups. The Area Director shall assist the affected tribe or group in arranging for preliminary sessions or meetings of the tribal governing body, or public meetings. The Area Director shall make a presentation of the results of the research and shall arrange for expertise of the Bureau of Indian Affairs to be available at these meetings to assist the tribe or group in developing a use or distribution proposal, bearing in mind that under the Act not less than twenty (20) per centum of the judgment funds, including investment income thereon, is to be used for tribal programs unless the Secretary determines that the particular circumstances of the affected Indian tribe clearly warrant otherwise.

            § 87.4
            Conduct of hearings of record.

            (a) As soon as appropriate after the tribal meetings have been held and the Commissioner has reviewed the tribal proposal(s), the Area Director, or such other official of the Department of the Interior as he shall designate to act for him, shall hold a hearing of record to receive testimony on the tribal proposal(s).
            (b) The hearing shall be held after appropriate public notice beginning at least twenty (20) days prior to the date of such hearing, and after consultation with the governing body of the tribe or group regarding the date and location of the hearing, to obtain the testimony of members of the governing body and other representatives, spokesmen or members of the tribe or group on the proposal(s).
            (c) All testimony at the hearing shall be transcribed and a transcript thereof shall be furnished to the Commissioner and the tribal governing body immediately subsequent to the hearing. Particular care shall be taken to insure that minority views are given full opportunity for expression either during the hearing or in the form of written communications by the date of the hearing.
            (d) Whenever two or more tribes or groups are involved in the use or distribution of the judgment funds, including situations in which two or more Area Offices are concerned, every effort shall be made by the Area Director or Directors to arrange for a single hearing to be conducted at a time and location as convenient to the involved tribes and groups as possible. Should the tribes and groups not reach agreement on such time or place, or on the number of entities to be represented at the hearing, the Commissioner, after considering the views of the affected tribes and groups, shall within twenty (20) days of receipt of such advice by the Area Director, designate a location and date for such hearing and invite the participation of all entities he considers to be involved and the Commissioner's decision shall be final.

            § 87.5
            Submittal of proposed plan by Secretary.
            Subsequent to the hearing of record, the Commissioner shall prepare all pertinent materials for the review of the Secretary. Pertinent materials shall include:
            (a) The tribal use or distribution proposal or any alternate proposals;
            (b) A copy of the transcript of the hearing of record;
            (c) A statement on the hearing of record and other evidence reflecting the extent to which such proposal(s) meets the desires of the affected tribe or group, including minorities views;
            (d) Copies of all pertinent resolutions and other communications or documents received from the affected tribe or group, including minorities;
            (e) A copy of the tribal constitution and bylaws, or other organizational document, if any; a copy of the tribal enrollment ordinance, if any; and a statement as to the availability or status of the membership roll of the affected tribe or group;
            (f) A statement reflecting the nature and results of the investment of the judgment funds as of thirty (30) days of the submittal of the proposed plan, including a statement concerning attorney fees and litigation expenses;
            (g) A statement justifying any compromise proposal developed by the Commissioner in the event of the absence of agreement among any and all entities on the division or apportionment of the funds, should two or more entities be involved;
            (h) And a statement regarding the feasibility of the proposed plan, including a timetable prepared in cooperation with the tribal governing body, for the implementation of programming and roll preparation.
            Within one hundred and eighty (180) days of the appropriation of the judgment funds the Secretary shall submit a proposed plan, together with the pertinent materials described above, simultaneously to each of the Chairmen of the Congressional Committees, at the same time sending copies of the proposed plan and materials to the governing body of the affected tribe or group. The one hundred and eighty (180) day period shall begin on the date of the Act with respect to all judgments for which funds have been appropriated and for which enabling legislation has not been enacted.

            § 87.6
            Extension of period for submitting plans.

            An extension of the one hundred and eighty (180) day period, not to exceed ninety (90) days, may be requested by the Secretary or by the governing body of any affected tribe or group submitting such request to both Congressional Committees through the Secretary, and any such request shall be subject to the approval of both Congressional Committees.

            § 87.7
            Submittal of proposed legislation by Secretary.
            (a) Within thirty (30) calendar days after the date of a resolution by either House disapproving a plan, the Secretary shall simultaneously submit proposed legislation authorizing the use or distribution of the funds, together with a report thereon, to the Chairmen of both Congressional Committees, at the same time sending copies of the proposed legislation to the governing body of the affected tribe or group. Such proposed legislation shall be developed on the basis of further consultation with the affected tribe or group.
            (b) In any instance in which the Secretary determines that circumstances are not conducive to the preparation and submission of a plan, he shall, after appropriate consultation with the affected tribe or group, submit proposed legislation within the 180-day period to both Congressional Committee simultaneously.

            § 87.8
            Enrollment aspects of plans.

            An approved plan that includes provisions for enrollment requiring formal adoption of enrollment rules and regulations shall be implemented through the publication of such rules and regulations in the Federal Register. Persons not members of organized or recognized tribes and who are not citizens of the United States shall not, unless otherwise provided by Congress, be eligible to participate in the use or distribution of judgment funds, excepting heirs or legatees of deceased individual beneficiaries.

            § 87.9
            Programming aspects of plans.
            In assessing any tribal programming proposal the Secretary shall consider all pertinent factors, including the following: the percentage of tribal members residing on or near the subject reservation, including former reservation areas in Oklahoma, or Alaska Native villages; the formal educational level and the general level of social and economic adjustment of such reservation residents; the nature of recent programming affecting the subject tribe or group and particularly the reservation residents; the needs and aspirations of any local Indian communities or districts within the reservation and the nature of organization of such local entities; the feasibility of the participation of tribal members not in residence on the reservation; the availability of funds for programming purposes derived from sources other than the subject judgment; and all other pertinent social and economic data developed to support any proposed program.

            § 87.10
            Per capita payment aspects of plans and protection of funds accruing to minors, legal incompetents and deceased beneficiaries.
            (a) The per capita shares of living competent adults shall be paid directly to them. The shares of minors, legal incompetents and deceased individual beneficiaries, enhanced by investment earnings, shall be held in individual Indian money (IIM) accounts unless otherwise provided as set out in this section. While held in IIM accounts, said shares shall be invested pursuant to 25 U.S.C. 162a and shall be the property of the minors or legal incompetents or the estates of the deceased individual beneficiaries to whom the per capita payments were made.
            (b)(1) Unless otherwise provided in paragraph (b)(2) of this section, minors' per capita shares, until the minors attain the age of 18 years, shall be retained in individually segregated IIM accounts and handled as provided in § 115.4 of this chapter. Should it be determined that the funds are to be invested pursuant to a trust, minors who will have reached the age of 18 years within six months after the establishment of the trust shall have their funds retained at interest in IIM accounts and paid to them upon attaining their majority.

            (2) A private trust for the minors' per capita shares may be established subject to the approval of the tribal governing body and the Secretary on the following conditions:

            (i) The tribal governing body specifically requests the establishment of such trust, and the trust provides for segregated amounts to each individual minor, based on his per capita share, and
            (ii) The trust agreement specifically provides that the investment policy to be followed is that of preserving the trust corpus and of obtaining the highest interest rates current money markets can safely provide. The trust agreement must further provide that maturity dates of investments cannot exceed the period of the trust and that only the following types of investment shall be made: United States Treasury obligations; Federal agency obligations; repurchase/resell agreements; United States Treasury bills; Bankers' acceptance, provided the assets of the issuing bank exceed $1 billion or the issuing bank pledges full collateral; Certificates of deposit, provided the assets of the issuing bank exceed $1 billion or the issuing bank pledges full collateral; Commercial paper, provided it is rated prime-2 by Moody or A-2 by Standard and Poor or is obligation of a company with outstanding unsecured debt rated Aa by Standard and Poor.
            (c) The per capita shares of legal incompetents shall be held in IIM accounts and administered pursuant to the provisions of § 115.5 of this chapter.
            (d) The shares of deceased individual beneficiaries, plus all interest and investment income accruing thereto, shall be paid to their heirs and legatees upon their determination as provided in 43 CFR part 4, subpart D.
            (e) All per capita shares, including all interest and investment income accruing thereto, while they are held in trust under the provisions of this section, shall be exempt from Federal and State income taxes and shall not be considered as income or resources when determining the extent of eligibility for assistance under the Social Security Act, as amended.
            (f) All per capita shares or portions thereof, including all interest and investment income accruing thereto, which are not paid out but which remain unclaimed with the Federal Government shall be maintained separately and be enhanced by investment, and shall, unless otherwise provided in an effective plan or in enabling legislation, be subject to the provisions of the Act of September 22, 1961, 75 Stat. 584. No per capita share or portion thereof shall be transferred to the U.S. Treasury as “Monies Belonging to Individuals Whose Whereabouts are Unknown.”
            [41 FR 48735, Nov. 5, 1976. Redesignated at 47 FR 13327, Mar. 30, 1982]

            § 87.11
            Investment of judgment funds.
            As soon as possible after the appropriation of judgment funds and pending approval of a plan or the enactment of legislation authorizing the use or distribution of the funds, the Commissioner shall invest such funds pursuant to 25 U.S.C. 162a. Investments of judgment funds and of investment income therefrom will continue to be made by the Commissioner after the approval of a plan or enactment of use or distribution legislation to the extent funds remain available for investment under such plan or legislation, and provided that thereafter investments of judgment funds made available for tribal use are not undertaken by the tribe pursuant to authorizing law. Invested judgment funds, including investment income therefrom, shall be withdrawn from investment only as currently needed under approved plans or legislation authorizing the use or distribution of such funds.

            § 87.12
            Insuring the proper performance of approved plans.

            A timetable prepared in cooperation with the tribal governing body shall be included in the plan submitted by the Secretary for the implementation of all programming and enrollment aspects of a plan. At any time within one calendar year after the approval date of a plan, the Area Director shall report to the Commissioner on the status of the implementation of the plan, including all enrollment and programming aspects, and thenceforth shall report to the Commissioner on an annual basis regarding any remaining or unfulfilled aspects of a plan. The Area Director shall include in his first and all subsequent annual reports a statement regarding the maintenance of the timetable, a full accounting of any per capita distribution, and the expenditure of all programming funds. The Commissioner shall report the deficient performance of any aspect of a plan to the Secretary, together with the corrective measures he has taken or intends to take.

          Pt. 88
          PART 88—RECOGNITION OF ATTORNEYS AND AGENTS TO REPRESENT CLAIMANTS

            Sec.
            88.1
            Employment of attorneys.
            88.2
            Employment by tribes or individual claimants.

            Authority:
            5 U.S.C. 301.

            Cross References:
            For law and order regulations on Indian reservations, see part 11 of this chapter. For probate procedure, see part 15 of this chapter. For regulations governing the admission of attorneys to practice before the Department of the Interior and the offices and bureaus thereof, see 43 CFR part 1. For regulations governing the execution of attorney contracts with Indians, see part 89 of this subchapter.

            § 88.1
            Employment of attorneys.
            (a) Indian tribes organized pursuant to the Indian Reorganization Act of June 18, 1934 (48 Stat. 984; 25 U.S.C. 461-479), as amended, may employ legal counsel. The choice of counsel and the fixing of fees are subject under 25 U.S.C. 476 to the approval of the Secretary of the Interior or his authorized representative.
            (b) Attorneys may be employed by Indian tribes not organized under the Act of June 18, 1934, under contracts subject to approval under 25 U.S.C. 81 and the Reorganization Plan No. 3 of 1950, 5 U.S.C. 481, note, by the Secretary of the Interior or his authorized representative.
            (c) Any action of the authorized representative of the Secretary of the Interior which approves, disapproves or conditionally approves a contract pursuant to paragraph (a) or (b) of this section shall be final.
            (d) Practice of such attorneys before the Bureau of Indian Affairs and the Department of the Interior is subject to the requirements of 43 CFR 1.1 through 1.7.
            [27 FR 11548, Nov. 24, 1962. Redesignated at 47 FR 13327, Mar. 30, 1982]

            § 88.2
            Employment by tribes or individual claimants.
            All such attorneys or agents seeking approval of their employment by Indian tribes or desiring to represent individual claimants before the Indian Bureau shall be required to comply fully with the regulations of the Department promulgated September 27, 1917, governing admission to practice, and to take the oath of allegiance and to support the Constitution of the United States, as required by section 3478 of the United States Revised Statutes (31 U.S.C. 204).
            [22 FR 10538, Dec. 24, 1957. Redesignated at 47 FR 13327, Mar. 30, 1982]

          Pt. 89
          PART 89—ATTORNEY CONTRACTS WITH INDIAN TRIBES

              Tribes Organized Under The Indian Reorganization Act
              Sec.
              89.1-89.26
              [Reserved]

              Five Civilized Tribes
              89.30
              Contents and approval of contracts.
              89.31
              Negotiation of contract.
              89.32
              Notice from the principal officer.
              89.33
              Notice from attorney.
              89.34
              Tentative form of contract.
              89.35
              Execution in quintuplet.

              Payment of Tribal Attorney Fees With Appropriated Funds
              89.40
              General policy.
              89.41
              Exceptions to policy.
              89.42
              Factors to be considered.
              89.43
              Procedures.

            Authority:

            5 U.S.C. 301; secs. 89.30 to 89.35 also issued under 25 U.S.C. 2, 9, and 82a; secs. 89.40 to 89.43 also issued under 25 U.S.C. 13, 450 et seq.

            Cross Reference:
            For recognition of attorneys and agents to represent claimants, see part 88 of this subchapter.

            Tribes Organized Under The Indian Reorganization Act

              §§ 89.1-89.26
              [Reserved]

            Five Civilized Tribes

              § 89.30
              Contents and approval of contracts.

              All contracts for the services of legal counsel or technical specialists negotiated and executed with the Choctaw, Chickasaw, Cherokee, Creek, or Seminole Tribes or Nations, also known as the Five Civilized Tribes, shall be in strict compliance with the requirements of section 2103 of the Revised Statutes of the United States (25 U.S.C. 81).
              [37 FR 10440, May 23, 1972. Redesignated at 47 FR 13327, Mar. 30, 1982]

              § 89.31
              Negotiation of contract.
              That person or governing entity recognized as having authority to act for and in behalf of any one of the Five Civilized Tribes in matters of importance may, when it is found there is a substantial need and demand therefor, negotiate and contract for services of a tribal counsel or counsels and technical specialist or specialists, subject to the approval of the Secretary of the Interior or his authorized representative.
              [37 FR 10440, May 23, 1972. Redesignated at 47 FR 13327, Mar. 30, 1982]

              § 89.32
              Notice from the principal officer.
              Notice of intention to negotiate with attorneys or with technical specialists shall be sent by the principal tribal officer to the Superintendent. Such notice shall be accompanied by a full statement concerning the need for retaining counsel or specialists, as the case may be, the purpose for which such assistance is needed and the scope of the intended employment. The notice and statement shall be transmitted to the Area Director by the Superintendent together with the latter's report and recommendations with respect to the approval of such contract.
              [37 FR 10440, May 23, 1972. Redesignated at 47 FR 13327, Mar. 30, 1982]

              § 89.33
              Notice from attorney.
              Attorneys desiring to execute contracts with any one of the Five Civilized Tribes shall be required to give written notice to the Area Director through the Superintendent having jurisdiction over said tribe.
              [37 FR 10440, May 23, 1972. Redesignated at 47 FR 13327, Mar. 30, 1982]

              § 89.34
              Tentative form of contract.
              The principal officer of any one of the Choctaw, Cherokee, Creek, Seminole, and Chickasaw Tribes may, if he desires, obtain a tentative form of contract by written application to the office of the appropriate Agency Superintendent. Requests for forms for an attorney contract should include a statement reciting whether the attorney is desired as a general legal counsel in connection with the business of the tribe or as counsel in respect to specific problems on which legal counsel is desired, or specific matters requiring representation in court or before committees of Congress and the Departments of Government. Requests for forms for technical service contracts should include a statement of the particular type of service required and the purpose for which it is needed. The anticipated term of each proposed contract should be stated.
              [37 FR 10440, May 23, 1972. Redesignated at 47 FR 13327, Mar. 30, 1982]

              § 89.35
              Execution in quintuplet.
              The contract should be executed in quintuplet, and all copies of it shall be transmitted by the Superintendent to the Area Director.
              [37 FR 10440, May 23, 1972. Redesignated at 47 FR 13327, Mar. 30, 1982]

            Payment of Tribal Attorney Fees With Appropriated Funds

              Source:
              48 FR 3969, Jan. 28, 1983, unless otherwise noted.

              § 89.40
              General policy.
              In ordinary circumstances, legal services with respect to trust resources are provided for Indian tribe(s):
              (a) By private counsel employed by tribes when such tribe is financially able and elects to do so, or
              (b) By the United States as trustee through the Office of the Solicitor and/or the Department of Justice.
              It is the policy of the Department of the Interior not to use federally appropriated funds to pay for private counsel to represent Indian tribes. Exceptions to that policy are listed in § 89.41 of this part.

              § 89.41
              Exceptions to policy.
              The Assistant Secretary—Indian Affairs upon concurrence of the Solicitor and receipt of a recommendation as provided by § 89.43 may, in his/her discretion, authorize the direct or indirect expenditure of appropriated funds to pay reasonable attorney's fees in order to permit an Indian tribe to secure private legal representation in the following circumstances:
              (a) When a tribe determines it necessary to bring a court action or to defend itself to protect its trust resources, rights claimed under a treaty, agreement, executive order, or statute, or its governmental powers and the Attorney General refuses assistance or advises that assistance is not otherwise available (Comptroller General's Opinion B-114868, December 6, 1976).
              (b) When a tribe determines it necessary to institute or to defend itself in an administrative proceeding to protect its trust resources, rights claimed under a treaty, agreement, executive order, or statute, or to protect its governmental powers and the Solicitor is unable to provide representation due to a conflict of interest or other reasons.
              (c) When a tribe determines legal assistance necessary, other than for litigation, pursuant to a contract executed under Pub. L. 93-638 and the Solicitor has determined that the services of his office are not available.
              (d) When a tribe determines it critical, and the Assistant Secretary—Indian Affairs finds the concerns of the tribe to have merit after consultation with and the advice of the Solicitor, to intervene, in a lawsuit being handled by the Justice Department or in an administrative proceeding being handled by the Solicitor because the responsible Government Attorney refuses either to exclude or to include some facet of the suit or proceedings which the tribe claims renders such legal representation completely inadequate to protect or in contravention of the rights and interests of the tribe. Prior to consulting with and advising the Assistant Secretary—Indian Affairs, in a lawsuit being handled by the Justice Department, the Solicitor shall seek the comments and advice of the Attorney General.
              (e) When a tribe determines, and the Assistant Secretary—Indian Affairs, after consultation with the Solicitor concurs, that a substantial possibility of a negotiated settlement or agreement exists.
              (f) Payment of fees will not be allowed if such payment was not authorized before services were performed.
              (g) This rule applies to expenditure of appropriated Federal funds and not a tribe's own funds on deposit in the U.S. Treasury.

              § 89.42
              Factors to be considered.
              The following factors are to be considered in determining whether funds should be paid to provide private legal representation for a tribe.
              (a) The merits of the legal position which the tribe asserts. Greater weight will be given to those cases where the tribe's legal argument is deemed particularly meritorious than to those cases where the tribe's position, although not entirely without merit, may be relatively weak;
              (b) The ability of the tribe to pay all or a part of its legal expenses out of its own funds. A review of the tribe's financial resources under this subsection will include an examination of the tribe's total expenditures to determine whether its expenditures for other purposes comport with the asserted importance of the case for which it seeks funds;
              (c) Whether the question the tribe seeks to litigate is being litigated in another case by another tribe;
              (d) Whether, as a matter of strategy, the issues the tribe seeks to litigate could be more satisfactorily resolved in another forum, in a different factual context, or a different time; and
              (e) Whether the issue should be litigated at all in preference to a legislative or other solution.

              § 89.43
              Procedures.

              The information collection requirements contained in this section do not require approval by the Office of Management and Budget under 44 U.S.C. 3051 et seq., because it is anticipated there will be fewer than 10 respondents annually.

              (a) A tribe or other organization seeking funds under § 89.41 shall submit a written request through the Agency Superintendent and the Area Director, including
              (1) A detailed statement describing the nature and scope of the problems for which legal services are sought;
              (2) A statement of the terms, including total anticipated costs, of the requested legal services contract;
              (3) A current financial statement and a statement that the tribe does not possess sufficient tribal funds or assets to pay for all or a part of the legal services sought; and
              (4) A statement of why the matter must be handled by a private attorney as opposed to Department of Justice or Department of Interior attorneys.
              All requests shall be considered by a committee consisting of the Deputy Assistant Secretary—Indian Affairs (Policy), or his delegate, the Director of the Office of Trust Responsibilities in BIA or his delegate, and the Associate Solicitor—Indian Affairs or his delegate.
              (b) If two of the three committee members recommend approval of a tribe's request, the request, along with the committee's recommendation, shall be submitted to the Assistant Secretary for final determination after consultation with and the advice of the Solicitor. The committee's recommendation shall indicate the amount of funds recommended to assist the tribe, the hourly rate allowed, the maximum amount permitted to be expended in the recommended action and the tribal contributions, if any. The Assistant Secretary shall approve the request only with the concurrence of the Solicitor.
              (c) The requirements imposed by this policy are supplementary to those contained in all existing regulations dealing with attorney contracts with Indian tribes and, in particular, those contained in parts 88 and 89 of this title.

          Pt. 90
          PART 90—ELECTION OF OFFICERS OF THE OSAGE TRIBE

              General
              Sec.
              90.1
              Definitions.
              90.2
              Statutory provisions.

              Eligibility
              90.21
              General.

              Elections
              90.30
              Nominating conventions and petitions.
              90.31
              Applicability.
              90.32
              Election Board.
              90.33
              Watchers and challengers.
              90.35
              List of voters.
              90.36
              Disputes on eligibility of voters.
              90.37
              Election notices.
              90.38
              Opening and closing of poll.
              90.39
              Voters to announce name and residence.
              90.40
              Ballots.
              90.41
              Absentee voting.
              90.42
              Absentee ballots.
              90.43
              Canvass of election returns.
              90.44
              Statement of supervisor.
              90.45
              Electioneering.
              90.46
              Notification of election of tribal officers.
              90.47
              Contesting elections.
              90.48
              Notice of contest.
              90.49
              Expenses of elections.

            Authority:
            Sec. 9, 34 Stat. 539; sec. 7, 45 Stat. 1478; 71 Stat. 471, unless otherwise noted.

            Source:
            23 FR 1948, Mar. 25, 1958; 23 FR 2026, Mar. 27, 1958, unless otherwise noted. Redesignated at 47 FR 13327, Mar. 30, 1982.

            General

              § 90.1
              Definitions.
              As used in this part:
              (a) The term supervisor means the tribal election official chosen and appointed by the Principal Chief or Assistant Principal Chief to act as chairman of the election board and shall in the absence of the supervisor denote the Assistant Supervisor.

              § 90.2
              Statutory provisions.

              Section 7 of the Act of March 2, 1929 (45 Stat. 1481) provides in part as follows:

                That there shall be a quadrennial election of officers of the Osage Tribe as follows: A principal chief, an assistant principal chief, and eight members of the Osage tribal council, to succeed the officers elected in the year 1928, said officers to be elected at a general election to be held in the town of Pawhuska, Oklahoma, on the first Monday in June 1930 and on the first Monday in June each four years thereafter, in the manner to be prescribed by the Commissioner of Indian Affairs, and said officers shall be elected for a period of four years commencing on the 1st day of July following said elections. * * *

            Eligibility

              § 90.21
              General.
              Only members of the Osage Tribe who will be eighteen years of age or over on election day and whose names appear on the quarterly annuity roll at the Osage Agency as of the last quarterly payment immediately preceding the date of election will be entitled to hold office or vote for any tribal officers. Each such voter shall be entitled to cast one ballot and each ballot shall have exactly the same value as the voter's headright interest shown on the last quarterly annuity roll. Any fraction of a headright, however, shall be valued as to the first two decimals only unless such interest is less than one-hundredth of a share, then it shall have its full value.
              (45 Stat. 1481)
              [43 FR 8798, Mar. 3, 1978. Redesignated at 47 FR 13327, Mar. 30, 1982]

            Elections

              § 90.30
              Nominating conventions and petitions.

              Conventions shall be held on or before the first Monday in April of the year in which a quadrennial election is held, and there shall be written reports of such conventions, duly certified by the secretary or presiding officer showing total number of qualified voters in attendance, together with the names of candidates nominated for the various offices: Provided, That at least 25 qualified voters shall have been in attendance at any such convention; also, names of any independent candidates nominated by petition of not less than 25 qualified voters, each signature to be witnessed by two persons, shall be filed with the supervisor not later than 5 p.m. on the first Monday in April of the year in which a quadrennial election is held in order that such names may be placed on the official ballot. No person shall be considered a candidate for tribal office unless and until the requirements of this section have been met.
              [32 FR 10253, July 12, 1967. Redesignated at 47 FR 13327, Mar. 30, 1982]

              § 90.31
              Applicability.
              The manner of carrying out elections to be held under the act of June 28, 1906 (34 Stat. 539), as amended by the act of March 2, 1929 (45 Stat. 1478), as amended by the act of August 28, 1957 (71 Stat. 471), is covered in the regulations set forth in this part. The next election will be held on the first Monday in June 1958 and subsequent elections will be held on the first Monday in June each four years thereafter.

              § 90.32
              Election Board.
              The Principal Chief, or in his absence, the Assistant Principal Chief shall, not more than seventy-five days nor less than sixty-five days preceding the day appointed by law for the holding of an election of officers of the Osage Tribe, issue in the form and manner prescribed in § 90.37, an election notice and appoint an election board consisting of a Supervisor who shall be chairman, Assistant Supervisor, five judges, one of whom in addition to his regular duties shall act as interpreter, and five clerks, whose duties shall be to conduct the election as provided in the regulations in this part:

                Provided further, That the Superintendent on the recommendation of the election board may designate extra clerical assistants. Prior to the date of the election, the election board shall assemble and make necessary arrangements for the election in a building to be designated by the Superintendent of the Osage Agency as the polling site and make the necessary preparation for receiving prospective voters, for receiving absentee ballots, and see to it that voting booths are arranged to afford privacy. Members of the election board and any extra clerical assistants designated by the Superintendent under authority contained in this section, other than employees of the Osage Agency when duly appointed or designated as provided for in this part may be compensated for conducting each quadrennial election at rates to be fixed by the Osage Tribal Council. If a member of the election board desires to be relieved from duty for any cause, he shall notify the Principal Chief or in his absence the Assistant Principal Chief, in writing to that effect and the Principal Chief, or in his absence the Assistant Principal Chief shall designate someone else to serve as a member of the election board. The Supervisor, or in his absence the Assistant Supervisor, shall see that the rules prescribed for conducting the election are faithfully carried out. The ballots shall be handed out by a judge to the voters as they present themselves to vote, after being identified by a clerk who shall be supplied with a copy of the list of voters prepared pursuant to § 90.35. The judge before handing out a ballot shall remove the detachable portion. A judge shall receive the ballot after the voter has indicated his choice thereon by placing an “X” mark opposite the name of each candidate for whom he desires his vote counted and shall deposit same in the ballot box. The duties of the remaining judges in conjunction with the Supervisor will be to read the names on the ballot when requested so as to identify the candidates or furnish such other information as may be desired in that connection and also to assist prospective voters unable because of language difficulties or physical incapacity to cast votes for candidates of their choice, and to undertake such other duties as may be assigned by the Supervisor.
              [27 FR 2458, Mar. 15, 1962. Redesignated at 47 FR 13327, Mar. 30, 1982]

              § 90.33
              Watchers and challengers.
              Any candidate or political party may name a person to act as watcher and challenger at any election provided for by the regulations in this part. Each watcher and challenger shall be appointed in writing by the candidate or political party he or she represents. The watchers and challengers shall have the right to be present in the polling place but outside the voting booths and to watch the election officials, the balloting, the call, the tally, and the recording of the result of the vote. It shall be the duty of the watcher to watch, listen, and observe the count for all candidates voted for to insist upon an honest and fair count but shall have no further authority than to have the election judges and clerks note or record any objections to the count and to challenge the result thereof. The challenger shall have the right to question any voter and his right to vote. Watchers shall not divulge or give out any intimation or information as to the count prior to announcement by the election board and shall be subject to the same rules governing the election board with regard to leaving and returning to the polling place. A watcher or challenger shall receive no compensation for his services.
              [27 FR 2458, Mar. 15, 1962. Redesignated at 47 FR 13327, Mar. 30, 1982]

              § 90.35
              List of voters.
              The Superintendent of the Osage Agency shall compile a list of the voters of the Tribe who are qualified under § 90.21. Such list shall set forth only the name and last known address of each voter. The Superintendent shall furnish copies of the list to the Supervisor of the election board and shall post copies at the headquarters of the Osage Agency at Pawhuska, Okla., and such other places as the election board may determine to be appropriate. The compilation, posting and distribution of copies to the Supervisor of the election board shall be done as soon as possible after preparation of the last quarterly annuity roll preceding the election. Copies of the list shall also be made available to all qualified candidates for office and for the purpose of checking off the name of each voter as his ballot is cast and for determining, in the event of question, the right of any individual to vote.
              [27 FR 2458, Mar. 15, 1962. Redesignated at 47 FR 13327, Mar. 30, 1982]

              § 90.36
              Disputes on eligibility of voters.
              (a) The election board shall fix a date not less than five days before the election at which time all complaints will be heard. The election board shall, at least three days before the date of election, determine any claim or challenge as to the right of any person to be listed on the roll of eligible voters.
              (b) Any voter of the tribe shall have the right to challenge any person presenting himself to vote and it shall be the duty of the supervisor and a judge of the board to make such investigation then and there as they deem essential, and decide the question of whether or not a person is a listed voter.

              § 90.37
              Election notices.
              The election notice shall set forth the place, date and time for holding the election, qualification of voters, method of nominating candidates, and closing date for same, method of locating each name on the ballot and the names of each member of the election board. As soon as possible a copy of the notice of the election, after approval by the Superintendent of the Osage Agency, shall be mailed to each qualified voter at his last known address.

              § 90.38
              Opening and closing of poll.
              The poll shall remain open without intermission from 8 a.m. to 8 p.m. on the date of the election. When all else is in readiness for the opening of the poll the supervisor shall open the ballot box in view of the other election officers, shall turn same top down to show that no ballots are contained therein, and shall then lock the box and retain the key in his possession.
              [32 FR 10253, July 12, 1967. Redesignated at 47 FR 13327, Mar. 30, 1982]

              § 90.39
              Voters to announce name and residence.
              Each voter shall upon presenting himself to vote announce to the clerk his name, and address.

              § 90.40
              Ballots.
              The Superintendent of the Osage Agency shall have ballots printed showing the name and the office for which each candidate has been nominated and also space for showing the value of the respective ballots. The Superintendent shall have recorded on a detachable portion of each ballot the name of the voter. The value of each voter's ballot shall be recorded on the principal portion of the respective ballots. Any faction or group has the right to nominate any candidate it chooses, in accordance with the regulations prescribed in this part. The names of such candidates shall be printed on the ballot in the manner set forth as follows:
              (a) Under the heading, Principal Chief, with notation to vote for one, shall appear names of all candidates for that office. Under the heading, Assistant Chief, with notation to vote for one, shall appear the names of all candidates for that office. Under the heading, Members of Council, with notation to vote for eight, shall appear names of all candidates for council. Names of candidates for office shall appear only once on ballot, regardless of the fact that they may have been nominated on more than one ticket. The order in which names of qualified candidates for office will be placed on the ballot shall be by lot method of drawing in a manner to be determined by the tribal council, and to be free from or regardless of party or factional affiliations. A candidate may use one nickname. Titles and professional designations will not be shown on the ballot. A record shall be kept of any ballots that may be mutilated, canceled, or used as samples.
              (b) A space will be provided on each ballot in which the clerk prior to issuing the ballot shall note the value of the ballot which shall be exactly the same value as the voter's headright interest as shown on the last quarterly annuity roll, except any fraction of a headright shall be valued as to the first two decimals only unless such interest is less than one one-hundredth then it shall have its full value. As verification the clerk shall initial the ballot so numbered in the margin. In addition each ballot shall be stamped “Official Ballot” (facsimile signature Supervisor Osage Election Board). Should any voter spoil or mutilate his ballot in his effort to vote he may surrender the ballot to the supervisor who shall give the voter in lieu thereof another ballot which shall show its appropriate value. The spoiled or mutilated ballot or any portion of a spoiled or mutilated ballot shall be retained with other records pertaining to the election.
              [32 FR 10253, July 12, 1967. Redesignated at 47 FR 13327, Mar. 30, 1982]

              § 90.41
              Absentee voting.

              (a) An eligible voter who will be unable to appear at the poll in Pawhuska on election day shall be entitled to vote by absentee ballot. Absentee ballots shall be identical to the ballots described in § 90.40 with the exception that each such ballot shall be stamped “Absentee Ballot,” and reflect the date of issuance. All applications for absentee ballots shall be made in writing by the voter. Each ballot shall indicate the value of the vote to which the voter is entitled. The supervisor shall maintain a file of all applications, together with a record of the names and addresses of all persons to whom absentee ballots are mailed or delivered, including the date of mailing or delivery. All absentee ballots must be postmarked and be in the Pawhuska Post Office prior to 8 a.m. on election day.
              (b) It shall be the duty of the supervisor, upon receipt of an application, to mail or deliver to the applicant an envelope containing a ballot (after removing the detachable portion), and an inner and outer envelope as described herein. This shall be done not more than 30 days before the election, except that the envelopes and ballots may be mailed to absentee voters residing outside the continental limits of the United States at any time after mailing of the election notice.
              (c) If the absentee ballot and accompanying envelopes are to be mailed to the prospective voter, the written request must be submitted to the supervisor on or before 5 p.m. of the Wednesday preceding the election. The absentee ballot and accompanying envelopes may be delivered personally to the prospective voter any time prior to the opening of the poll.
              (d) The absentee voter shall mark the ballot and seal it only in the inner envelope. The following shall be printed on the inner envelope:

                Absentee Ballot
                election of officers of the osage tribe
                june _, 19__

              (e) The absentee voter shall enclose the inner envelope in the outer envelope and after sealing same shall execute the certificate imprinted thereon which certificate shall be in the following form:

                I will be unable to appear at the poll in Pawhuska, Oklahoma, on the _____ day of June 19__ and have enclosed my ballot for the election of officers of the Osage Tribe. 1

                    1 Criminal penalties are provided by statute for knowingly filing false information in such statements (18 U.S.C. 1001).

                (Voter's signature)__________.
                The outer envelope shall be preaddressed as follows: Supervisor, Osage Election Board, Post Office Box __, Pawhuska, Okla. 74056.

              (45 Stat. 1481)
              [23 FR 1948, Mar. 25, 1958; 23 FR 2026, Mar. 27, 1958, as amended at 43 FR 8799, Mar. 3, 1978. Redesignated at 47 FR 13327, Mar. 30, 1982]

              § 90.42
              Absentee ballots.
              The absentee ballots shall remain in the locked box in the post office, Pawhuska, Okla., until 8 a.m. on the day of election at which time the supervisor or assistant supervisor of the election board, accompanied by the Superintendent of the Osage Agency or his designated representatives, shall receive the locked box from the post office and shall personally transport the locked box to the polling site where it shall be delivered immediately to the supervisor or assistant supervisor of the election board. The supervisor or the assistant supervisor in the presence of at least two judges shall unlock the locked box containing the absentee ballots and shall then determine whether the person whose name is signed to the statement is a qualified voter of the Osage Tribe and check said voter off the poll list before opening the outer envelope. After it has been determined which of the absentee ballots have been cast by duly qualified electors, the supervisor in the presence of the election board shall cause the valid ballots in the sealed inner envelopes to be placed in the ballot box.
              [32 FR 10254, July 12, 1967. Redesignated at 47 FR 13327, Mar. 30, 1982]

              § 90.43
              Canvass of election returns.

              (a) Immediately after the polls are closed at 8 p.m., the counting of the ballots shall commence. The supervisor and not less than two judges shall remain continuously in the room until the ballots are finally counted. One or more judges shall act as official counters and two or more clerks shall record the value of each vote and shall comprise a vote tallying team. The vote shall be recorded on two tally sheets by each team of judges and clerks under the name of each candidate for whom the voter designated his choice. The count shall continue until all votes have been recorded. The duties of the remaining officials of the election board will be to assist in conducting the election. After the vote of each ballot is recorded, the ballot shall be pierced by needle and string and after the ballots have been so counted, the ends of the string shall be tied together. After all other ballots have been counted, the sealed inner envelopes containing the absentee ballots shall be opened and all ballots found to be valid shall be counted and treated in the same manner as other valid ballots. All ballots and mutilated ballots; registration lists of voters, both absentee and those appearing at the poll; all tally sheets; and all other election materials shall be placed in the ballot box which shall be locked. The supervisor shall then deliver the locked ballot box and keys to same to the Superintendent, Osage Agency, and the box shall be retained in a safe place until opened by order of the supervisor or election board in the event a contest is filed. If no contest is filed, the ballots shall be destroyed 180 days after the election. No information concerning voting shall be posted or made public information until after 8 p.m.
              (b) Should any ballot be marked for more than one principal chief or assistant chief or for more than eight councilmen, only that section of the ballot wherein the error was made shall be declared void and the remaining section or sections shall be counted in the same manner as other ballots. Absentee ballots shall be declared void when items other than the ballot are enclosed in the inner envelope, the voter fails to sign the statement appearing on the outer envelope, and for failure to seal the inner envelope or enclose the inner envelope in the outer envelope. Votes cast for individuals whose names are not printed on the official ballot shall not be counted.
              [32 FR 10254, July 12, 1967, as amended at 43 FR 8799, Mar. 3, 1978. Redesignated at 47 FR 13327, Mar. 30, 1982]

              § 90.44
              Statement of supervisor.
              Following the election a statement is to be prepared by the supervisor pertaining to the conduct of the election and certifying to the correct tabulation of the votes for each candidate. The statement shall also set forth the names of the elected candidates and the office to which each was elected. The statement shall be duly acknowledged before an officer qualified to administer oaths and delivered to the Superintendent of the Osage Agency.
              [32 FR 10254, July 12, 1967. Redesignated at 47 FR 13327, Mar. 30, 1982]

              § 90.45
              Electioneering.
              No person shall be allowed to electioneer within the building where and when the election is in progress and it will be the duty of the supervisor to request the detail of a police officer to assist him in maintaining order about the building during the progress of the election.

              § 90.46
              Notification of election of tribal officers.
              The Superintendent of the Osage Indian Agency shall in due time give written notice to candidates of their election to the various tribal offices and as soon thereafter as practicable such tribal officers shall appear and subscribe to oath of office before an officer qualified to administer oaths and such oaths shall be delivered to the Superintendent and by him transmitted to the Commissioner of Indian Affairs.

              § 90.47
              Contesting elections.

              Any unsuccessful candidate may before noon on Monday next following the tribal election file with the supervisor a challenge to the correctness of the vote cast for the office for which he was a candidate, which challenge must be accompanied by a deposit of $500. The election board or the supervisor shall order a recount and proceed with same as provided in this part. If the recount results in the contestant being elected, the deposit shall be refunded; otherwise, the deposit shall be used to defray all expenses of said recount and any balance not so used shall be returned to the contestant.
              [32 FR 10254, July 12, 1967. Redesignated at 47 FR 13327, Mar. 30, 1982]

              § 90.48
              Notice of contest.

              It shall be the duty of the supervisor, to serve upon the contestee, or contestees, directly affected by such challenge or contest, a true copy of said written application, the original of which is required to be filed with the supervisor. Said service shall be made in person, where possible, within twenty-four hours after the filing of said original challenge or contest, and where personal service is impossible within such time, on account of the absence of contestee, or contestees, from Osage County, or for any other reason, it is hereby made the duty of the supervisor to serve a true copy upon the Superintendent of the Osage Indian Agency: Provided, That for the purpose of such constructive service, the Superintendent is hereby made and constituted the service agent of each and every candidate in all tribal elections, and by filing petition as a candidate, such candidate shall thereby be presumed conclusively to have accepted the terms and provisions hereof and specifically the constructive service as aforesaid.

              § 90.49
              Expenses of elections.
              All expenses of elections including compensation to the members of the election board and any clerical assistants designated by the Superintendent under § 90.32, stationery supplies, meals, printing and postage shall be borne by the Osage Tribe as set forth in an appropriate Osage Tribal Council resolution establishing current pay scale.
              [27 FR 2459, Mar. 15, 1962. Redesignated at 47 FR 13327, Mar. 30, 1982]

          Pt. 91
          PART 91—GOVERNMENT OF INDIAN VILLAGES, OSAGE RESERVATION, OKLAHOMA

            Sec.
            91.1
            Purpose.
            91.2
            Definitions.
            91.3
            Description of village reserves.
            91.4
            Plats of village reserves.
            91.5
            Tracts reserved from selection by individuals.
            91.6
            Custody of public buildings and tracts reserved from selection by individuals; village committees.
            91.7
            Permits to occupy land for dwelling purposes.
            91.8
            Sale or mortgage of improvements.
            91.9
            Inheritance of improvements.
            91.10
            Renting of improvements.
            91.11
            Domestic animals in village reserves.
            91.12
            Business enterprises and public buildings.
            91.13
            Health, sanitation, and sewerage disposal.
            91.14
            Confirmation of permits.
            91.15
            Suspension or amendment of regulations.

            Authority:
            Subdivision 9 of sec. 2, sec. 12, Act of June 28, 1906 (34 Stat. 539), sec. 3, Act of June 24, 1938 (52 Stat. 1034). Interpret or apply Act of April 18, 1912 (37 Stat. 86).

            Source:
            28 FR 10203, Sept. 18, 1963, unless otherwise noted. Redesignated at 47 FR 13327, Mar. 30, 1982.

            § 91.1
            Purpose.
            The purpose of the regulations in this part is to establish policies and procedures for the government of Indian villages, Osage Reservation, Oklahoma.

            § 91.2
            Definitions.
            As used in this part:
            (a) Secretary means the Secretary of the Interior or his authorized representative.
            (b) Superintendent means the Superintendent or other officer in charge of Osage Agency.
            (c) Council means the Osage Tribal Council, that elected governing body of the Osage Tribe of Indians.
            (d) Tribal Member means any person of Osage Indian blood of whatever degree, allotted or unallotted.
            (e) Minor means any person under 21 years of age.
            (f) Resident means an adult tribal member who has resided in the village for thirty (30) days, in the 12-month period preceding the election.

            § 91.3
            Description of village reserves.

            The act of June 28, 1906 (34 Stat. 539), as amended by the act of June 24, 1938 (52 Stat. 1034), set aside certain tribal lands exclusively as dwelling sites for the use and benefit of the Osage Indians until January 1, 1984, unless otherwise provided by Act of Congress. These lands are described as follows:
            (a) Grayhorse Indian Village. The southeast quarter (SE 1/2) of the southeast quarter (SE 1/4), and the west half (W 1/2) of the southwest quarter (SW 1/4) of the southeast quarter (SE 1/4), and the south half (S 1/2) of the northeast quarter (NE 1/4) of the southeast quarter (SE 1/4) of the southwest quarter (SW 1/4), and the south half (S 1/2) of the north half (N 1/2) of the northeast quarter (NE 1/4) of the southeast quarter (SE 1/4) of the southwest quarter (SW 1/4), and the southeast quarter (SE 1/2) of the southeast quarter (SE 1/4) of the southwest quarter (SW 1/4) of sec. fifteen (15); and the north half (N 1/2) of the northeast quarter (NE 1/4), and the northeast quarter (NE 1/4) of the northwest quarter (NW 1/4) of sec. twenty-two (22), all in township twenty-four (24) north, range six (6) east of the Indian meridian, and containing 197.5 acres, more or less.
            (b) Hominy Indian Village. Lots Six (6) and Seven (7), and the East Half (E 1/2) of the Southwest Quarter (SW 1/4) of Section Six (6) in Township Twenty-two (22) North, Range Nine (9) East of the Indian Meridian, and containing 160 acres, more or less.
            (c) Pawhuska Indian Village. Lots One (1) and Two (2), and the South Half (S 1/2) of the Northeast Quarter (NE 1/4) of Section Three (3) in Township Twenty-five (25) North, Range Nine (9) East of the Indian Meridian, and containing 160 acres, more or less.
            [28 FR 10203, Sept. 18, 1963, as amended at 33 FR 8270, June 4, 1968. Redesignated at 47 FR 13327, Mar. 30, 1982]

            § 91.4
            Plats of village reserves.
            Plats of the Grayhorse Indian Village, the Pawhuska Indian Village, and the Hominy Indian Village, certified by Ralph M. Tolson, Registered Engineer, on July 5, 1966, are the official plats of dedication of said villages and shall be filed of record with the county clerk of Osage County, State of Oklahoma.
            [33 FR 8270, June 4, 1968. Redesignated at 47 FR 13327, Mar. 30, 1982]

            § 91.5
            Tracts reserved from selection by individuals.
            The following described tracts, as shown on the plats of the three villages, are reserved from selection by individuals and are set aside for sepultural use or for public use by tribal members:
            (a) Grayhorse Indian Village:
            (1) Public Squares.
            (2) Parks, and
            (3) Cemetery.
            (b) Hominy Indian Village:
            (1) Public squares.
            (2) Cemetery, and
            (3) Lot 1 in block 1 set aside for religious and educational purposes to the Society of Friends, its Associate Executive Committee of Friends on Indian Affairs and its or their representative at Hominy, Okla., by Resolution of the Osage Tribal Council dated June 6, 1956, and approved by the Assistant Secretary of the Interior, September 7, 1956.
            (c) Pawhuska Indian Village:
            (1) Wakon Iron Square.
            (d) Those individuals who have summer homes or dance arbors located on the Public Square of the Hominy Indian Village shall be permitted to retain said summer homes or dance arbors during their lifetimes if they are maintained in a condition satisfactory to the Hominy Indian Village Committee. Following the owner's death, the improvements shall be removed within ninety (90) days or become the property of the Hominy Indian Village.
            [33 FR 8270, June 4, 1968. Redesignated at 47 FR 13327, Mar. 30, 1982]

            § 91.6
            Custody of public buildings and tracts reserved from selection by individuals; village committees.

            Each of the three (3) villages described herein shall organize a village committee to provide for the health, safety and welfare of its inhabitants, for the maintenance of tribal property, and to serve as custodian and manager of tribal property and improvements located within said village except that tract described in § 91.5(b)(3). Each village committee shall be composed of five (5) members, domiciled in the village, one of whom shall be designated by the committee as chairman. The committees shall be elected biennially by the residents of the villages, except in the Grayhorse Indian Village where the committee shall be appointed by the Council from among those tribal members residing in or historically associated with the village. The procedure for initial committee elections shall be established by the Council. Each village committee shall prepare a constitution and by-laws to be approved by the Council and the Superintendent before said committee will have any authority to govern, and any changes or amendments thereto must likewise be approved by the Council and the Superintendent. All actions of the committee are subject to appeal to the Council whose decision shall be final: Provided, That such committee shall have no control or authority to grant permission for the use of tribal property described in § 91.5 for the holding of dances. Such authority shall remain in the Council and any group or individual using the property for dance purposes without the written permission of the Council shall be in violation of these regulations: Provided, further, That the village committee shall not permit the use of any of the tracts described in § 91.5 in any manner that would conflict with Council authorization for dance purposes.

            § 91.7
            Permits to occupy land for dwelling purposes.

            The issuance of permits for the use of land for dwelling purposes within any village reserve described in § 91.3 except tracts reserved for specific purposes by § 91.5 will be under the jurisdiction of the Superintendent. Permits may be issued only to tribal members upon application to the Superintendent: Provided, That only one permit shall be issued to any one individual and that erection of a dwelling house shall be started on such land within six (6) months from date of approval of the permit or such permit shall be automatically terminated except that upon written application the Superintendent may extend such permit for an addition six (6) months: Provided, further, That only one dwelling shall be constructed under any one permit. Permits shall be issued for the use of one to three contiguous lots, depending upon the quality and permanency of the improvements to be placed thereon. Permits issued under this section shall be made in duplicate in a manner to be prescribed by the Superintendent. The original copy shall be filed in the Branch of Realty, Osage Agency, and the duplicate copy shall be mailed to the permittee.
            [33 FR 8270, June 4, 1968. Redesignated at 47 FR 13327, Mar. 30, 1982]

            § 91.8
            Sale or mortgage of improvements.
            No improvements located within the village reserves described in § 91.3 shall be sold, mortgaged, transferred or assigned without the approval of the Superintendent.
            (a) Improvements may be mortgaged for home improvements or the erection of new improvements. Such mortgages shall be made with acceptable lending agencies and shall be approved by the Superintendent. The lending agency shall have the right:
            (1) To foreclose the mortgage and to sell the improvements within six (6) months of the date of foreclosure judgment to any eligible tribal member with the understanding that the use of the land on which the improvements are situated shall be transferable to the new owner; or
            (2) To foreclose the mortgage and to sell the improvements to a non-tribal member, who shall remove the improvements from the village reserve within six (6) months of the date of sale. In the event of removal of the mortgaged property, it shall be the responsibility of the lending agency to level the land on which such improvements were located and to remove all debris, sidewalks, etc., leaving the premises in an orderly condition. Failure to make such disposition within the time stated in this paragraph shall result in forfeiture of the improvements to the village committee.

            (b) Improvements may be sold by the owner thereof with the approval of the Superintendent. Sale of such improvements shall be accomplished by bill of sale executed by the owner in triplicate who shall file all copies with the Superintendent. If the purchaser of such improvements is a member of the Osage Tribe, the bill of sale shall be accompanied by a relinquishment of the permit in favor of the vendee for the occupancy of the land on which such improvements are located. If the purchaser is not a member of the Osage Tribe, such purchaser shall be required to endorse an agreement on the reverse of all copies of the bill of sale that he will:
            (1) Remove the improvements from the village reserve within six (6) months of date of approval of the bill of sale;
            (2) Transfer the title thereof as provided in this section to a tribal member who is eligible; or
            (3) Failing to make such disposition within the time stated forfeit title to the village committee.
            (c) Upon approval of the bill of sale by the Superintendent, the original or certified copy shall be filed in the Branch of Realty, Osage Agency, the duplicate copy mailed to the purchaser, and the triplicate copy mailed to the seller.

            § 91.9
            Inheritance of improvements.
            (a) Upon the death of the owner of improvements in a village reserve, such improvements shall, in probate matters, be subject to the jurisdiction of the county courts, State of Oklahoma, and shall be subject to inheritance or bequest in accordance with applicable State and Federal laws. The land within a village reserve is held in trust for the benefit of tribal members and is not subject to inheritance or purchase.

            (b) When such improvements or interests therein are inherited by or bequeathed to a non-tribal member, he or she shall dispose of such improvements in the manner provided for disposition of improvements by purchaser under § 91.8: Provided, That when such non-tribal member is a legally adopted minor child such child may continue to occupy the land during its minority: Provided, further, That when such non-tribal member is the surviving spouse such individual, so long as he or she remains single may continue to occupy the land during his or her lifetime or may sell the improvements as provided herein and may receive a proceeds therefrom. In the event such surviving spouse remarries, the right to continuous occupancy of the land pursuant to this § 91.9 shall terminate and such surviving spouse shall make disposition of such improvements as provided for purchasers in § 91.8. If upon the death of the surviving spouse title to the improvements vests in a non-tribal member, they shall be sold as provided in § 91.8 and the proceeds distributed to the persons entitled thereto.

            (c) Improvements inherited by tribal members may be occupied or rented in accordance with § 91.10: Provided, No tribal member shall be issued more than two permits or own more than two sets of improvements, one of which must be inherited property and one occupied by the tribal member: Provided, further, No tribal member shall be permitted to retain more than one set of improvements for rental. If this provision is violated, the tribal member will have three years, from the date of written notice from the Superintendent that such provision has been violated, within which to dispose of the surplus property in accordance with § 91.8.

            § 91.10
            Renting of improvements.

            The Superintendent may issue a certificate of permission to rent for a period of one (1) year improvements located on land held under valid permit, subject to renewal in the discretion of the Superintendent, upon written application by the owner of such improvements and the prospective tenant: Provided, That such prospective tenant is a tribal member and the property to be rented is that heretofore occupied or inherited by the owner. Certificates of permission issued under this section may be withdrawn upon 30-day notice to the tenant by the Superintendent and such tenant expelled from the village reserve. The application and certificate of permission on a form to be prescribed by the Superintendent shall be made in triplicate and all copies forwarded to the Superintendent for action. Upon approval by the Superintendent, the original copy of the application and certificate shall be filed in the Branch of Realty, Osage Agency, the duplicate copy of each forwarded to the owner, and the triplicate copy of each forwarded to the tenant.

            § 91.11
            Domestic animals in village reserves.
            (a) No livestock shall be permitted to trespass in any village reserve except that unassigned lots or unplatted areas enclosed by adequate fences may be leased by the village committee with the approval of the Superintendent and the proceeds therefrom credited to the account of the village committee. Trespassing livestock may be impounded by the village committee. The village committee shall give notice of impoundment to the owner of the animal, if known, by certified mail or by posting in the village square. The notice shall advise the owner that a $10 charge shall be assessed per day for each animal impounded and a reasonable charge for forage consumed and that the animal or animals shall be sold at the expiration of twenty (20) days from the date of mailing or posting the notice. In the event an animal is sold, the balance after deducting $10 per day for impoundment and a reasonable forage charge, shall be deposited at the Osage Agency and the owner may claim said funds if satisfactory proof of ownership is presented to the Superintendent of the Osage Agency within six (6) months of the date of sale. After six (6) months, any funds remaining on deposit will become the property of the village in which the animal was trespassing.
            (b) No horses, mules, bovine, hogs, sheep, or goats shall be penned on assigned lots.
            [33 FR 8270, June 4, 1968. Redesignated at 47 FR 13327, Mar. 30, 1982]

            § 91.12
            Business enterprises and public buildings.
            No permanent business enterprises shall be carried on within the boundaries of a village reserve and no public buildings shall be erected on lands within the boundaries of a village reserve except on tracts described in § 91.5 maintained for the use and benefit of tribal members. The construction or acquisition of dwellings for rental purposes is prohibited. The village committee may grant permission and charge fees for temporary concessions within the village reserve during Indian celebrations, dances, community gatherings, etc., such temporary permits to last only for the term of activities for which granted.

            § 91.13
            Health, sanitation, and sewerage disposal.
            Health, sanitation, and sewerage disposal problems within the village reserves shall be subject to and controlled by applicable County and State laws.

            § 91.14
            Confirmation of permits.
            The Superintendent shall prepare a certified list of all current permittees with a description of lots held, which descriptions shall conform to the plats certified July 5, 1966. Said list shall be served by certified mail on the individual permittees and the village committee chairman and shall be posted at the Osage Agency and each of the three village squares. Unless a protest is filed with the Superintendent within ninety (90) days of the mailing and posting, said certified list of assigned lots and the individual permittees shall be final and conclusive. Protests may be filed by tribal members claiming an interest in an assigned lot and such protest shall be determined by the Superintendent after notice and hearing.
            [33 FR 8271, June 4, 1968. Redesignated at 47 FR 13327, Mar. 30, 1982]

            § 91.15
            Suspension or amendment of regulations.

            The regulations in this part may be suspended or amended at any time by the Secretary of the Interior: Provided, That such amendments or suspension shall not serve to change the terms or conditions of any mortgage approved in accordance with § 91.8(a).

        SUBCHAPTER G—FINANCIAL ACTIVITIES

          Pt. 101
          PART 101—LOANS TO INDIANS FROM THE REVOLVING LOAN FUND

            Sec.
            101.1
            Definitions.
            101.2
            Kinds of loans.
            101.3
            Eligible borrowers under United States direct loan program.
            101.4
            Applications.
            101.5
            Approval of loans.
            101.6
            Modification of loans.
            101.7
            Management and technical assistance.
            101.8
            Environmental and Flood Disaster Acts.
            101.9
            Preservation of historical and archeological data.
            101.10
            Federal Reserve Regulation Z and Fair Credit Reporting Act.
            101.11
            Interest.
            101.12
            Records and reports.
            101.13
            Security.
            101.14
            Maturity.
            101.15
            Penalties on default.
            101.16
            Default on loans made by relending organizations.
            101.17
            Uncollectable loans made by the United States.
            101.18
            Uncollectable loans made by relending organizations.
            101.19
            Assignment of loans.
            101.20
            Relending by borrower.
            101.21
            Repayments on United States direct loans.
            101.22
            Repayments on loans made by relending organizations.
            101.23
            Approval of articles of association and bylaws.
            101.24
            Loans for expert assistance for preparation and trial of Indian claims.
            101.25
            Information collection.

            Authority:
            25 U.S.C. 1469.

            Source:
            40 FR 3587, Jan. 23, 1975, unless otherwise noted. Redesignated at 47 FR 13327, Mar. 30, 1982.

            § 101.1
            Definitions.
            As used in this part 101:

              Applicant means an applicant for a United States Direct Loan from the revolving loan fund or a loan from a relending organization.

              Commissioner means the Commissioner of Indian Affairs or an authorized representative.

              Cooperative association means an association of individuals organized pursuant to state, Federal, or tribal law, for the purpose of owning and operating an economic enterprise for profit with profits distributed or allocated to patrons who are members of the organization.

              Corporation means an entity organized as a corporation pursuant to state, Federal, or tribal law, with or without stock, for the purpose of owning and operating an economic enterprise.

              Default means failure of a borrower to:
            (1) Make scheduled payments on a loan when due,
            (2) Obtain the lender's approval for disposal of assets mortgaged as security for a loan, or
            (3) Comply with the covenants, obligations, or other provisions of a loan agreement.

              Economic enterprise means any Indian-owned commercial, industrial, agricultural, or business activity established or organized for the purpose of profit, provided that eligible Indian ownership constitutes not less than 51 percent of the enterprise.

              Equity means the borrower's residual ownership, after deducting all business debt, of tangible business assets used in the business being financed, on which a lender can perfect a first lien position.

              Financing statement means the document filed or recorded in county or state offices pursuant to the provisions of the Uniform Commercial Code notifying third parties that a lender has a lien on the chattels and/or crops of a borrower.

              Indian means a person who is a member of an Indian tribe as defined in this part.

              Organization means the governing body of any Indian tribe, or entity established or recognized by such governing body for the purpose of the Indian Financing Act.

              Other organization means any non-Indian individual, firm, corporation, partnership, or association.

              Partnership means a form of business organization in which two or more legal persons are associated as co-owners for the purposes of business or professional activities for private pecuniary gain, organized pursuant to tribal, state, or Federal law.

              Reservation means Indian reservation, California rancheria, public domain Indian allotment, former Indian reservation in Oklahoma, and land held by Alaska Native groups incorporated under the provisions of the Alaska Native Claims Settlement Act (85 Stat. 688), as amended.

              Revolving loan fund means all funds that are now or hereafter a part of the revolving fund authorized by the Act of June 18, 1934 (48 Stat. 986), the Act of June 26, 1936 (49 Stat. 1968) and the Act of April 14, 1950 (64 Stat. 44), as amended and supplemented including sums received in settlement of debts for livestock pursuant to the Act of May 24, 1950, (64 Stat. 190) and sums collected in repayment of loans made, including interest or other charges on loans, and any funds appropriated pursuant to section 108 of the Indian Financing Act of 1974 (88 Stat. 77).

              Secretary means the Secretary of the Interior.

              Tribe means any Indian tribe, bank, nation, rancheria, pueblo, colony or community, including any Alaska Native village or any regional, village, urban or group corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688), as amended, which is recognized by the Federal Government as eligible for services from the Bureau of Indian Affairs.
            [57 FR 46471, Oct. 8, 1992]

            § 101.2
            Kinds of loans.
            Loans from the Indian Revolving Loan Fund shall be made for purposes which will improve and promote the economic development on Indian reservations.
            (a) Loans may be made by the United States to eligible relending organizations for relending to members for economic enterprises and to eligible tribes for relending to members, eligible corporations, cooperative associations, partnerships and subordinate bands and for financing tribal economic enterprises, which will promote the economic development of a reservation and/or the group or members thereon. Loans made by tribes or relending organizations may be for the following purposes:
            (1) To individual Indians or Natives, cooperative associations, corporations and partnerships, to finance economic enterprises operated for profit, the operation of which will contribute to the improvement of the economy of a reservation and/or the members thereon.
            (2) To individual Indians or Natives for purposes of purchasing, constructing or improving housing on a reservation and to be occupied by the borrower.
            (3) To individual Indians and Natives for purposes of obtaining a college or graduate education and degree in a field which will provide employment opportunities, provided that adequate funds are not available from sources such as grants, scholarships or other loan sources.
            (4) To individual Indians and Natives for purposes of attending vocational schools which provide training in desired skills in a field in which there are employment opportunities, provided that adequate funds and/or training are not available from grant or scholarship sources, or federal or state training programs.
            Loans may also be made by the United States to tribes for loaning to or investing in other organizations subject to the provisions in paragraph (d) of this section.
            (b) Direct loans may be made by the United States to eligible tribes, tribal organizations or corporations and tribal cooperative associations without fund restrictions. Direct loans to individual Indians, partnerships, and other non-tribal organizations shall not exceed $350,000. Direct loans from the United States shall be made for the following purposes:
            (1) To eligible tribes, individual Indians, Natives, or associations thereof, corporations and partnerships, to finance economic enterprises operated for profit, the operation of which will contribute to the improvement of the economy of a reservation and/or the members thereon.
            (2) To individual Indians and Natives for purposes of purchasing, constructing or improving housing on a reservation and to be occupied by the borrower.

            (3) To individual Indians and Natives for purposes of obtaining a college or graduate education and degree in a field which will provide employment opportunities, provided that adequate funds are not available from sources such as grants, scholarships or other loan sources.
            (4) To individual Indians and Natives for purposes of attending vocational schools which provide training in desired skills in a field in which there are employment opportunities, provided that adequate funds and/or training are not available from grants or scholarship sources or federal or state training programs.
            (c) Before a United States direct loan is approved, the Commissioner may require the applicants to prepare a market and capacity report on existing or proposed economic enterprises for which financing is requested if the operation involves manufacturing, selling or providing services.
            (d) Loans may be made to eligible tribes and Indian organizations for use in attracting industries and economic enterprises, the operation of which will contribute to the economy of a reservation. Tribes and Indian organizations may receive loans from the revolving loan fund for investment in or lending to other organizations regardless of whether they are organizations of Indians. However, not more than 50 percent of the loan made to an Indian organization may be used for the purpose of making a loan to or investing in other organizations. Applications for loans to provide funds for lending to or investing in other organizations already in operation will be accompanied by:
            (1) Audited balance sheets and operating statements of the other organization for the immediate three preceding years;
            (2) Pro forma operating statement and balance sheets for the succeeding three years reflecting the results of operations after injection of the additional funds;
            (3) Names of owners or if a corporation and stock has been issued, names of major stockholders and shares of stock owned by each;
            (4) A copy of the articles of incorporation and bylaws, if incorporated, or other organization papers if not incorporated;
            (5) Names of members of the board of directors and officers with a resume of education and experience, and the number of shares of stock owned by each in the corporation;
            (6) Purposes for which loan or investment will be used; and
            (7) If for manufacturing, selling or providing services, a market and capacity report will be prepared. If a proposed operation is to be established, the information in paragraphs (d)(2) through (7) of this section will be furnished. The Commissioner may require additional information on the other organization, if needed, to adequately evaluate the benefits which the Indian organization will receive and the economic benefits which will accrue to a reservation. If the loan is for relending to another organization, the application must show what security is being offered. If the loan is for investment in another organization, the equity to be obtained must be shown. Copies of all agreements, contracts or other documents to be executed by the Indian organization and the other organization in connection with a loan or investment shall be submitted with the application for a loan and will require Commissioner approval prior to disbursement of loan funds to the Indian organization.
            [40 FR 3587, Jan. 23, 1975. Redesignated at 47 FR 13327, Mar. 30, 1982, as amended at 54 FR 34974, Aug. 23, 1989]

            § 101.3
            Eligible borrowers under United States direct loan program.

            (a) Loans may be made from the revolving loan fund to Indians, eligible tribes and relending organizations, and corporations, cooperative associations and partnerships having a form of organization satisfactory to the Commissioner. Loans may be made to applicants only when, in the judgment of the Commissioner, there is a reasonable prospect of repayment. Loans may be made only to an applicant who, in the opinion of the Commissioner, is unable to obtain financing on reasonable terms and conditions from other sources such as tribal relending programs, banks, Farmers Home Administration, Small Business Administration, Production Credit Associations, or Federal Land Banks, and is also unable to obtain a guaranteed or insured loan pursuant to title II of the Indian Financing Act of 1974 (88 Stat. 77). In addition, the applicant will be required to have equity equal to 20 percent of the total cost of a new enterprise, or 20 percent of the total cost of expansion of an existing enterprise.
            (b) The establishment of a United States direct revolving loan program on a reservation(s) for making direct loans will require the approval of the Commissioner. All requests for establishing a United States direct revolving loan program on a reservation will be accompanied by reasons for need, estimate of financing needs, and other sources of financing available to meet the needs. The Commissioner, in approving a United States direct loan program, may require the preparation and approval of a plan of operation for conducting the program.
            (c) If local lending conditions and/or the information in an application for a loan indicate a probability that an applicant may be able to obtain the loan from other sources, the Commissioner, before approving a United States direct loan, will require the applicant to furnish letters from two customary lenders in the area who are making loans for similar purposes, stating whether or not they are willing to make a loan to the applicant for the same purposes and amount. If a customary lender will make the loan on reasonable terms and conditions, the Commissioner will not approve a United States direct loan.
            [40 FR 3587, Jan. 23, 1975. Redesignated at 47 FR 13327, Mar. 30, 1982, as amended at 54 FR 34974, Aug. 23, 1989; 57 FR 46471, Oct. 8, 1992]

            § 101.4
            Applications.
            An applicant for a United States direct loan or a loan from a relending organization conducting a relending program under this part will submit an application on a form approved by the Commissioner. Applications shall include the name, current address and telephone number of the applicant(s); current and prior Taxpayer Identification Number—Employer Identification Number if a business entity, Social Security Number if an individual; and current employer's name, address, and telephone number; amount of the loan requested; purpose for which loan funds will be used; and security to be offered; period of the loan, assets, liabilities and repayment capacity of the applicant; budgets reflecting income and expenditures of the applicant; and any other information necessary to adequately evaluate the application. The borrower must sign a statement declaring no delinquency on Federal taxes or other Federal debt and borrower's good standing on dealings in procurement or non-procurement with the Federal Government. The Bureau will obtain a current credit bureau report and prescribe procedures to be used in handling loan proceeds. In addition, applications for loans to finance economic enterprises already in operation will be accompanied by:
            (a) A copy of operating statements, balance sheets and budgets for the prior two operating years or applicable period thereof preceding submittal of the application;
            (b) Current budget, balance sheet and operating statements; and
            (c) Pro forma budgets operating statements and balance sheets showing the estimated results for operating the enterprise for two years after injection of the loan funds into the operation.

            A resume of the applicant's management experience will be submitted with the application. Applications for loans and requests for advance of tribal trust funds for relending under the provisions of this part shall be accompanied by a declaration of policy and plan of operation or other acceptable plan for conducting the program. Applications for loans or modifications thereof, to establish, acquire, operate, or expand an economic enterprise shall be accompanied by a plan of operation. Declarations of policy or other plans for conducting a relending program and plans of operation for economic enterprises require the approval of the Commissioner before becoming effective. An application from a corporation, partnership or cooperative association, for a United States direct loan or a loan under a relending program for financing an economic enterprise must, in addition to financial statements and budgets, include a copy of documents establishing the entity, or the proposed documents to be used in establishing it.
            [40 FR 3587, Jan. 23, 1975. Redesignated at 47 FR 13327, Mar. 30, 1982, as amended at 57 FR 46471, Oct. 8, 1992]

            § 101.5
            Approval of loans.
            (a) Loan agreements, including those used by relending organizations in operating a relending program, must be executed on a form approved by the Commissioner. On direct United States loans, the Commissioner will approve the loan by issuing a commitment order covering the terms and conditions for making the loan.
            (b) Applications for loans from relending organizations must be approved, if a tribe, by the governing body or designated committee, or other approving committee or body authorized to act on credit matters for a relending organization, before the Commissioner takes action on the application. This designated governing body of the tribe or committee must be authorized to act on behalf of the relending organization as evidenced in the organization's declaration of policy and plan of operation.
            (c) Corporations, partnerships and cooperative associations organized for the purpose of establishing, acquiring, expanding, and operating an economic enterprise shall be organized pursuant to federal, state or tribal law. The form of organization shall be acceptable to the Commissioner. Economic enterprises which are or will be operated on a reservation(s) must comply with the requirements of applicable rules, resolutions and ordinances enacted by the governing body of the tribe.

            § 101.6
            Modification of loans.
            (a) United States direct loans. Any modification of the terms and provisions of a United States direct loan agreement must be requested in writing by the borrower and approved by the Commissioner. The borrower will submit the request for modification and will indicate the section(s) of the loan agreement to be modified together with a justification for the modification. Requests for modifications of loan agreements will include an agreement to abide by the provisions of the regulations in this part and future amendments and modifications thereof. In addition, a current credit bureau report, obtained by the Bureau of Indian Affairs, will be made a part of the modification request.
            (b) Relending program. Any modification of the terms and provisions of a loan agreement of a borrower from an organization conducting a relending program must be in writing, agreed to by the borrower, and must be approved by the body authorized to act on loans and modifications thereof as provided in an approved declaration of policy and plan of operation or other plan. If a request for modification of a loan has been disapproved by the body authorized to act on the request, the rejected borrower may request the Commissioner to make a direct loan from the revolving loan fund if the Commissioner determines that the rejection is unwarranted.
            [40 FR 3587, Jan. 23, 1975. Redesignated at 47 FR 13327, Mar. 30, 1982, as amended at 57 FR 46472, Oct. 8, 1992]

            § 101.7
            Management and technical assistance.

            Prior to and concurrent with the approval of a United States direct loan to finance an economic enterprise, the Commissioner will assure under title V of the Indian Financing Act of 1974 that competent management and technical assistance is available to the loan applicant for preparation of the application and/or administration of funds loaned consistent with the nature of the enterprise proposed to be or in fact funded by the loan. Assistance may be provided by available Bureau of Indian Affairs staff, the tribe or other sources which the Commissioner considers competent to provide needed assistance. Contracting for management and technical assistance may be used only when adequate assistance is not available without additional cost. Contracts for providing borrowers with competent management and technical assistance shall be in accordance with applicable Federal Procurement Regulations and the Buy Indian Act of April 30, 1908, chapter 153 (35 Stat. 71), as amended June 25, 1910, chapter 431, section 25 (36 Stat. 861).
            [40 FR 3587, Jan. 23, 1975. Redesignated at 47 FR 13327, Mar. 30, 1982, as amended at 54 FR 34975, Aug. 23, 1989]

            § 101.8
            Environmental and Flood Disaster Acts.
            Loans will not be approved until there is assurance of compliance with any applicable provisions of the Flood Disaster Protection Act of 1973 (Pub. L. 93-234, 87 Stat. 975), the National Environmental Policy Act of 1969 (Pub. L. 91-190), (42 U.S.C. 4321) and Executive Order 11514.

            § 101.9
            Preservation of historical and archeological data.
            (a) On United States direct loans from the revolving loan fund and modifications thereof to provide additional loan funds which will involve excavations, road or street construction, land development or disturbance of land on known or reported historical or archeological sites, the Commissioner will take or require appropriate action to assure compliance with the applicable provisions of the Act of June 27, 1960 (74 Stat. 220; (16 U.S.C. 469)), as amended by the Act of May 24, 1974 (Pub. L. 93-291, 88 Stat. 174).
            (b) On loans made by relending organizations conducting a relending program using revolving loan funds, the body authorized to act on loan applications and modifications thereof will, at the time of taking action on a loan or request for modification, inform the applicant of the applicability of this Act to the loan and advise the Commissioner of compliance or the need to obtain compliance.

            § 101.10
            Federal Reserve Regulation Z and Fair Credit Reporting Act.
            (a) United States direct loans and loans made by a relending organization are subject to the provisions of Federal Reserve Regulation Z (Truth In Lending, 12 CFR part 226; Pub. L. 91-508, 84 Stat. 1127). Economic enterprises which extend credit and require payment of finance charges on unpaid balances will determine the applicability of Regulation Z and comply with the requirements thereof. The Commissioner will issue any necessary instructions to assure compliance with Regulation Z on United States direct loans.
            (b) Relending organizations, through their committee or other body authorized to act on loan matters on its behalf, will assure compliance with the applicable provisions of this Act.
            (c) The Commissioner will require adherence to the provisions and requirements of title VI of the Fair Credit Reporting Act in making United States direct loans. Relending organizations, through the body authorized to act on credit matters, will require compliance with the requirements of the Fair Credit Reporting Act.

            § 101.11
            Interest.
            (a) The interest to be charged on loans by the United States shall be at a rate determined by the Secretary of the Treasury in accordance with section 104, title I, of the Indian Financing Act of 1974 (Pub. L. 93-262, 88 Stat. 77). The interest rate shall be determined monthly and shall be effective on advances made on loans during the current calendar month. The interest rate shall be stated in the promissory note(s) executed by the borrower(s) evidencing the advance(s).
            (b) Additional charges to cover loan administration costs, including credit reports, may be charged to borrowers.
            (c) Education loans may provide for deferral of interest while the borrower is in school full time or in the military service.
            (d) The interest rate on loans made by relending organizations which are conducting relending programs shall not be less than the rate the organization pays on its loan(s) from the United States. Relending organizations which adopt and follow the same procedure in calculating interest on educational loans as is followed on educational loans made by the United States, will not be charged interest on loans from the United States on the amount outstanding on educational loans during the period the organization is not charging its borrowers interest.

            (e) Interest rates on loan advances made by the United States as shown on promissory notes dated before April 12, 1974, will remain in effect until the loan is paid in full, refinanced, or modified to extend the repayment terms. Unless otherwise specifically provided in a loan contract, the interest rate on advances made after April 12, 1974, will be at a rate determined pursuant to section 104 of title I of the Indian Financing Act of 1974. The interest rate on loans for expert assistance will be at a rate established in § 101.25 herein.
            [40 FR 3587, Jan. 23, 1975. Redesignated at 47 FR 13327, Mar. 30, 1982, as amended at 57 FR 46472, Oct. 8, 1992]

            § 101.12
            Records and reports.
            Loan agreements between the United States and tribes, corporations, partnerships, cooperative associations and individual Indians for financing economic enterprises, and to relending organizations, will require that borrowers establish and maintain accounting and operating records that are satisfactory to the Commissioner and submit written reports as required by the Commissioner. The records, accounts, and loan files shall be available for examination and audit by the Commissioner at any reasonable time. Unless an exception is approved by the Commissioner, borrowers will be required to have an annual audit made of the records of relending programs and economic enterprises financed with revolving loan funds, by a certified public accountant or a firm of certified public accountants or other qualified public accountants satisfactory to the Commissioner.

            § 101.13
            Security.
            (a) United States direct loans shall be secured by such security as the Commissioner may require. A lack of security will not preclude the making of a loan if the proposed use of the funds is sound and the information in the application and supporting papers correctly show that expected income will be adequate to pay all expenses and the loan principal and interest payments, indicating reasonable assurance that the loan will be repaid. Loans made by relending organizations conducting a relending program using revolving loan funds will require borrowers to give security for loans, if available, but the absence of security will not preclude the making of a loan if the proposed use of the funds is sound and the information in the application and supporting papers correctly show that expected income will be adequate to pay all expenses and the loan principal and interest payments, indicating reasonable assurance that the loan will be repaid. The declaration of policy and plan of operation of relending organizations conducting relending programs will include provisions covering the type and amount of security to be taken to secure loans made.
            (b) Land purchased by an individual Indian with the proceeds of a loan and land already held in trust or restricted status by the individual Indian may be mortgaged as security for a loan in accordance with 25 CFR 152.34 and the Act of March 29, 1956 (70 Stat. 62; (25 U.S.C. 483a)). Mortgages of individually held trust or restricted land will include only an acreage of the borrower's land which the Commissioner determines is necessary to protect the loan in case of default. On proposed foreclosures which involve the sale of individually held trust or restricted land given as security for a loan, the tribe of the reservation on which the land is located will be notified in writing at least thirty calendar days in advance of the anticipated date of sale. Land purchased by a tribe with the proceeds of a loan from the revolving loan fund with title taken in a trust or restricted status, and land already held in a trust or restricted status by a tribe may not be mortgaged as security for a loan.
            (1) Title to any land purchased by a tribe or by an individual Indian with revolving loan funds may be taken in trust or restricted status unless the land is located outside the boundaries of a reservation or a tribal consolidation area approved by the Secretary. Title to any land purchased by a tribe or an individual Indian which is outside the boundaries of a reservation or approved consolidation area may be taken in trust if the purchaser was the owner of trust or restricted interests in the land before the purchase. Otherwise, title shall be taken in the name of the purchaser without any restrictions on alienation, control, or use.

            (c) Mortgages of leasehold interests in land held in trust or restricted status by an individual Indian, may be taken for the purpose of borrowing capital for the development and improvement of the leased premises when permitted in the lease or lease modification agreement. Such mortgages must be approved by the lessor and Commissioner. (70 Stat. 62, (25 U.S.C. 483a)).
            (d) Individuals may give assignments of income from trust property as security for loans. Tribes may give assignments of trust income as security for loans provided that the assignment shall be specific as to the source(s) of income being assigned. All assignments of trust income require approval by the Commissioner before becoming effective.
            (e) Chattels may be given as security for a loan. A mortgage on chattels, the title to which is known to be in trust, requires Commissioner approval. Non-trust chattels may be mortgaged without approval of any federal official.
            (f) Crops grown on lands held in trust or restricted status for the benefit of an individual Indian may be given as security for a loan when approved by the Commissioner. Crops grown on leased, trust or restricted land may be given as security for a loan when permitted by the provisions of a lease or when the owner gives written consent. Approval of the lien document by the Commissioner is required. Crops grown on trust or restricted land held by a tribe which has been assigned to an individual for use may be given as security for a loan, provided the terms of the assignment permit the assignee to give the crops as security for a loan or the tribe's governing body specifically gives consent. The lien document requires Commissioner approval. Crops grown on non-trust or non-restricted land may be mortgaged without the approval of any federal official.
            (g) Title to any personal property purchased with a loan shall be taken in the name of the purchaser and mortgaged to secure the loan unless the loan is otherwise adequately secured. Tribes must adhere to the provisions of their constitutions and bylaws, corporate charters, or other organizational documents when mortgaging tribal property and assigning trust income as security for loans.
            (h) Relending organizations receiving a loan from the United States for relending shall be required to assign to the United States as security for the loan all securities acquired in connection with loans made to its members, sub-organizations, or associations from such funds, unless the Commissioner determines that repayment of the loan to the United States is otherwise reasonably assured. Funds advanced to finance a tribal economic enterprise shall be secured by an assignment of net income and net assets of the economic enterprise, unless the Commissioner determines that it is not feasible to require an assignment or that repayment of the loan to the United States is otherwise reasonably assured.
            (i) Securing documents or financing statements shall be filed or recorded in accordance with applicable state or federal laws except for those customarily filed in Bureau of Indian Affairs offices. Mortgages on documented vessels will be filed at the customs house designated as the home port of the vessel as shown on the marine document.

            § 101.14
            Maturity.
            The maturity of any United States direct loan shall not exceed thirty years. Loans made will be scheduled for repayment at the earliest possible date consistent with the purpose of the loan and the repayment capacity of the borrower.

            § 101.15
            Penalties on default.
            Unless otherwise provided in the loan agreement between the United States and a borrower, failure on the part of a borrower to conform to the terms of the loan agreement will be deemed grounds for the taking of any one or all of the following steps by the Commissioner:
            (a) Discontinue any further advance of funds contemplated by the loan agreement.
            (b) Take possession of any or all collateral given as security and in the case of individuals, corporation, partnerships or cooperative associations, the property purchased with the borrowed funds.

            (c) Prosecute legal action against the borrower or against officers of corporations, tribes, bands, credit associations, cooperative associations, and other organizations.

            (d) Declare the entire amount advanced immediately due and payable.
            (e) Prevent further disbursement of credit funds under the control of the borrower.
            (f) Withdraw any unobligated funds from the borrower.
            (g) Require relending organizations conducting a relending program to apply all collections on loans to liquidate the debt to the United States.
            (h) Take possession of the assets of a relending organization conducting a relending program and exercise or arrange to exercise its powers until the Commissioner has received acceptable assurance of its repayment of the revolving loan and compliance with the provisions of the terms of the loan agreement.
            (i) Liquidate, operate or arrange for the operation of economic enterprises financed with revolving loans made to individuals, tribes, corporations, partnerships and cooperative associations until the indebtedness is paid or until the Commissioner has received acceptable assurance of its repayment and compliance with the terms of the loan agreement.
            (j) Report the name and account information of a delinquent borrower to a credit bureau.
            (k) Assess additional interest and penalty charges for the period of time that payment is not made.
            (l) Assess charges to cover additional administrative costs incurred by the Government to service the account.
            (m) Offset amounts owed the borrower under other Federal programs including other programs administered by the Bureau of Indian Affairs.
            (n) Refer the account to a private collection agency to collect the amount due.
            (o) Refer the account to the U.S. Department of Justice for collection by litigation.
            (p) If the borrower is a current or retired Federal employee, take action to offset the borrower's salary or civil service retirement benefits.
            (q) Refer the debt to the Internal Revenue Service for offset against any amount owed the borrower as an income tax refund.
            (r) Report any written-off debt to the Internal Revenue Service as taxable income to the borrower.
            (s) Recommend suspension or debarment from conducting further business with the Federal Government.
            [40 FR 3587, Jan. 23, 1975. Redesignated at 47 FR 13327, Mar. 30, 1982, as amended at 57 FR 46472, Oct. 8, 1992]

            § 101.16
            Default on loans made by relending organizations.
            Relending organizations conducting relending programs using revolving loan funds will follow prudent lending practices in making and servicing loans and take appropriate actions to protect their interests in the security given to secure repayment of loans. Declarations of policy and plans of operation shall include procedures which will be followed in acting to correct a default, such as modification of loan agreement or foreclosure and liquidation of security. Relending organizations employing a general counsel will refer legal questions on foreclosure procedures and sale of security to their counsel.

            § 101.17
            Uncollectable loans made by the United States.
            If the Secretary determines that a United States direct loan is uncollectable in whole or in part or is collectable only at an unreasonable cost, or when such action would be in the best interest of the United States, the Secretary may cancel, adjust, compromise, or reduce the amount of any loan made from the revolving loan fund. The Commissioner may adjust, compromise, subordinate, or modify the terms of any mortgage, lease, assignment, contract, agreement, or other document taken as security for loans. The cancellation of all or part of a loan shall become effective when signed by the Secretary.
            [54 FR 34975, Aug. 23, 1989]

            § 101.18
            Uncollectible loans made by relending organizations.

            (a) Relending organizations conducting relending programs using revolving loan funds may, when approved by the Commissioner, chargeoff as uncollectible all or part of the balance of principal and interest owing on loans which are considered to be uncollectible. Usually a chargeoff includes both principal and interest and provides for cessation of interest accruals on the principal balance owing as of the date of the chargeoff.
            (b) Action to chargeoff a loan will be in the form of a resolution enacted by the committee or body authorized and responsible for actions on loan matters for the relending organization. Before action is taken to chargeoff a loan as uncollectible, the lender will make an effort, to the extent feasible, to liquidate the security given for a loan and apply the net proceeds as a repayment on the balance of principal and interest owed. The chargeoff of a loan by a relending organization as uncollectible will not reduce the principal balance owed to the United States. A chargeoff will not release the borrower of the obligation or the responsibility to make payments when his or her financial situation will permit. Chargeoff action will not release the lender of responsibility to continue its efforts to collect the loan.

            § 101.19
            Assignment of loans.
            A borrower of a direct loan from the United States may not assign the loan agreement or any interest in it to a third party without the consent of the Commissioner. Relending organizations which are conducting relending programs may not assign the loan agreements of borrowers, or any interest therein, to third parties without the approval of the Commissioner and the borrower.

            § 101.20
            Relending by borrower.
            (a) A relending organization may reloan funds loaned to it by the United States with the approval of the Commissioner. The Commissioner may authorize such lenders to approve applications for particular types of loans up to a specified amount.
            (b) Loans shall be secured by such securities as the lender and the Commissioner may require. With the Commissioner's approval, mortgages of individually held trust or restricted land, leasehold interests, chattels, crops grown on trust or restricted land, and assignments of trust income may all be taken as security for loans.
            (c) Title to personal property purchased with loans received from relending organizations using revolving loan funds in its relending program shall be taken in the name of the borrower.
            (d) The term of a loan made by a relending organization conducting a relending program shall not extend beyond the maturity date of its loan from the United States, unless an exception is approved by the Commissioner and the organization has funds available from which to make scheduled repayment on its loan from the United States. Loans made will be scheduled for repayment at the earliest possible date consistent with the purpose for which a loan is made and the indicated repayment capacity of the borrower.
            (e) Securing documents or financing statements shall be filed or recorded in accordance with federal or state law except those customarily filed in Bureau of Indian Affairs offices. Mortgages on documented vessels will be filed at the custom house designated as the home port of the vessel as shown on the marine document.
            [40 FR 3587, Jan. 23, 1975. Redesignated at 47 FR 13327, Mar. 30, 1982. Further redesignated and amended at 57 FR 46472, Oct. 8, 1992]

            § 101.21
            Repayments on United States direct loans.

            Repayments on United States direct loans shall be made to the authorized collection officer of the Bureau of Indian Affairs who shall issue an official receipt for the repayment and deposit the collection into the revolving loan fund. Collections will first be applied to pay interest to date of payment and the balance applied on the principal installment due. Collections on loans made by relending organizations which have been declared in default in which the Commissioner has taken control of the assets of the program (including loans made with balances owing) will be made to an authorized collection officer of the Bureau of Indian Affairs who shall issue a receipt to the payor and deposit the collection in the United States revolving loan fund. The relending organization's loan from the United States will be credited with the amounts collected from its borrowers, with the collections applied first on interest accrued and the balance applied to the principal. Payments on United States direct loans may be made in advance of due dates without penalty.
            [40 FR 3587, Jan. 23, 1975. Redesignated at 47 FR 13327, Mar. 30, 1982. Further redesignated at 57 FR 46472, Oct. 8, 1992]

            § 101.22
            Repayments on loans made by relending organizations.
            Repayments on loans made by a relending organization conducting a relending program will be made to the officers of the lending organization or individuals designated and authorized in a declaration of policy and plan of operation. Collections on loans and other income to a relending program will be deposited in the lender's revolving loan account as designated in a declaration of policy and plan of operation. Collections on loans will be first applied to pay interest to date of payment with the balance applied to the principal.
            [40 FR 3587, Jan. 23, 1975. Redesignated at 47 FR 13327, Mar. 30, 1982. Further redesignated at 57 FR 46472, Oct. 8, 1992]

            § 101.23
            Approval of articles of association and bylaws.
            Articles of association and bylaws of relending organizations and cooperative associations require approval of the Commissioner if they make application for a revolving credit loan.
            [40 FR 3587, Jan. 23, 1975. Redesignated at 47 FR 13327, Mar. 30, 1982. Further redesignated at 57 FR 46472, Oct. 8, 1992]

            § 101.24
            Loans for expert assistance for preparation and trial of Indian claims.
            (a) Loans may be made to Indian tribes, bands and other identifiable groups of Indians from funds authorized and appropriated under the provisions of section 1 of the Act of November 4, 1963 (Pub. L. 88-168, 77 Stat. 301; 25 U.S.C. 70n-1), as amended by the Act of September 19, 1966 (Pub. L. 89-592, 80 Stat. 814) and section 2 of the Act of May 24, 1973 (Pub. L. 93-37, 87 Stat. 73). Loan proceeds may only be used for the employment of expert assistance, other than the assistance of counsel, for the preparation and trial of claims pending before the Indian Claims Commission. Applications for loans will be submitted on forms approved by the Commissioner and shall include a justification of the need for a loan. The justification shall include a statement from the applicant's claims attorney regarding the need for a loan. The application will be accompanied by a statement signed by an authorized officer of the applicant certifying that the applicant does not have adequate funds available to obtain and pay for the expert assistance needed. The Superintendent and the Area Director will attest to the accuracy of the statement or point out any inaccuracies. Loans will be approved by issuance of a commitment order by the Commissioner.
            (b) No loan shall be approved if the applicant has funds available on deposit in the United States Treasury or elsewhere in an amount adequate to obtain the expert assistance needed or if, in the opinion of the Commissioner, the fees to be paid the experts are unreasonable on the basis of the services to be performed by them.
            (c) Contracts for the employment of experts are subject to the provisions of 25 U.S.C. 81 and require approval by the Commissioner.
            (d) Vouchers or claims submitted by experts for payment for services rendered and reimbursement for expenses will be in accordance with the provisions of the expert assistance contract and shall be sufficiently detailed and itemized to permit an audit to determine that the amounts are in accordance with the contract. Vouchers or claims shall be reviewed by the borrower's claims attorney who will certify on the last page of the voucher or by attachment thereto, that the services have been rendered and payment is due the expert and that expenses and charges for work performed are in accordance with the provisions of the contract.

            (e) Requests for advances under the loan agreement shall be accompanied by a certificate signed by an authorized officer of the borrower certifying that the borrower does not have adequate funds available from its own financial resources with which to pay the expert. The Superintendent and Area Director will attest to the accuracy of the statement or point out inaccuracies. A copy of the voucher or claim from the expert will accompany the request for advance.
            (f) Loan funds will be advanced only as needed to pay obligations incurred under approved contracts for expert assistance. The funds will be deposited in a separate account, shall not be commingled with other funds of the borrower, and shall not be disbursed for any other purpose.
            (g) Loans shall bear interest at the rate of 51/2 percent per annum from the date funds are advanced until the loan is repaid.
            (h) The principal amount of the loan advanced plus interest shall be repayable from the proceeds of any judgment received by the borrower at the time funds from the award become available to make the payment.
            (77 Stat. 301 (25 U.S.C. 70n-1 to 70n-7))
            [40 FR 3587, Jan. 23, 1975. Redesignated at 47 FR 13327, Mar. 30, 1982. Further redesignated at 57 FR 46472, Oct. 8, 1992]

            § 101.25
            Information collection.

            (a) The collections of information contained in §§ 101.3, 101.4, 101.12, and 101.25 have been approved by the Office of Management and Budget under 44 U.S.C. 3501 et seq. and assigned clearance number 1076-0020. The information will be used to rate applicants in accordance with the terms and conditions set forth in section 103 of the Indian Financing Act, as amended. Response is required to obtain a benefit in accordance with 25 U.S.C. 1451.
            (b) Public reporting burden for this information is estimated to vary from 15 minutes to 3 hours per response, with an average of one hour per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate or any other aspects of this collection of information, including suggestions for reducing the burden, to the Information Collection Clearance Officer, Bureau of Indian Affairs, Mailstop 337-SIB, 18th and C Streets NW., Washington, DC 20240; and the Paperwork Reduction Project (1076-0020), Office of Management and Budget, Washington, DC 20503.
            [54 FR 34975, Aug. 23, 1989. Redesignated at 57 FR 46472, Oct. 8, 1992]

          Pt. 103
          PART 103—LOAN GUARANTY, INSURANCE, AND INTEREST SUBSIDY

              Subpart A—General Provisions
              Sec.
              103.1
              What does this part do?
              103.2
              Who does the Program help?
              103.3
              Who administers the Program?
              103.4
              What kinds of loans will BIA guarantee or insure?
              103.5
              What size loan will BIA guarantee or insure?
              103.6
              To what extent will BIA guarantee or insure a loan?
              103.7
              Must the borrower have equity in the business being financed?
              103.8
              Is there any cost for a BIA guaranty or insurance coverage?

              Subpart B—How a Lender Obtains a Loan Guaranty or Insurance Coverage
              103.9
              Who applies to BIA under the Program?
              103.10
              What lenders are eligible under the Program?
              103.11
              How does BIA approve lenders for the Program?
              103.12
              How does a lender apply for a loan guaranty?
              103.13
              How does a lender apply for loan insurance coverage?
              103.14
              Can BIA request additional information?
              103.15
              Are there any prohibited loan terms?
              103.16
              How does BIA approve or reject a loan guaranty or insurance application?
              103.17
              Must the lender follow any special procedures to close the loan?
              103.18
              How does BIA issue a loan guaranty or confirm loan insurance?
              103.19
              When must the lender pay BIA the loan guaranty or insurance premium?

              Subpart C—Interest Subsidy
              103.20
              What is interest subsidy?
              103.21
              Who applies for interest subsidy payments, and what is the application procedure?
              103.22
              How does BIA determine the amount of interest subsidy?
              103.23
              How does BIA make interest subsidy payments?
              103.24
              How long will BIA make interest subsidy payments?

              Subpart D—Provisions Relating to Borrowers
              103.25
              What kind of borrower is eligible under the Program?
              103.26
              What must the borrower supply the lender in its loan application?
              103.27
              Can the borrower get help preparing its loan application or putting its loan funds to use?

              Subpart E—Loan Transfers
              103.28
              What if the lender transfers part of the loan to another person?
              103.29
              What if the lender transfers the entire loan?

              Subpart F—Loan Servicing Requirements
              103.30
              What standard of care must a lender meet?
              103.31
              What loan servicing requirements apply to BIA?
              103.32
              What sort of loan documentation does BIA expect the lender to maintain?
              103.33
              Are there reporting requirements?
              103.34
              What if the lender and borrower decide to change the terms of the loan?

              Subpart G—Default and Payment by BIA
              103.35
              What must the lender do if the borrower defaults on the loan?
              103.36
              What options and remedies does the lender have if the borrower defaults on the loan?
              103.37
              What must the lender do to collect payment under its loan guaranty certificate or loan insurance coverage?
              103.38
              Is there anything else for BIA or the lender to do after BIA makes payment?
              103.39
              When will BIA refuse to pay all or part of a lender's claim?
              103.40
              Will BIA make exceptions to its criteria for denying payment?
              103.41
              What happens if a lender violates provisions of this part?
              103.42
              How long must a lender comply with Program requirements?
              103.43
              What must the lender do after repayment in full?

              Subpart H—Definitions and Miscellaneous Provisions
              103.44
              What certain terms mean in this part.
              103.45
              Information collection.

            Authority:
            25 U.S.C. 1498, 1511.

            Source:
            66 FR 3867, Jan. 17, 2001, unless otherwise noted.

            Subpart A—General Provisions

              § 103.1
              What does this part do?
              This part explains how to obtain and use a BIA loan guaranty or loan insurance agreement under the Program, and who may do so. It also describes how to obtain and use interest subsidy payments under the Program, and who may do so.

              § 103.2
              Who does the Program help?
              The purpose of the Program is to encourage eligible borrowers to develop viable Indian businesses through conventional lender financing. The direct function of the Program is to help lenders reduce excessive risks on loans they make. That function in turn helps borrowers secure conventional financing that might otherwise be unavailable.

              § 103.3
              Who administers the Program?
              Authority for administering the Program ultimately rests with the Secretary, who may exercise that authority directly at any time. Absent a direct exercise of authority, however, the Secretary delegates Program authority to BIA officials through the U.S. Department of Interior Departmental Manual. A lender should submit all applications and correspondence to the BIA office serving the borrower's location.

              § 103.4
              What kinds of loans will BIA guarantee or insure?
              In general, BIA may guarantee or insure any loan made by an eligible lender to an eligible borrower to conduct a lawful business organized for profit. There are several important exceptions:
              (a) The business must contribute to the economy of an Indian reservation or tribal service area recognized by BIA;
              (b) The borrower may not use the loan for relending purposes;
              (c) If any portion of the loan is used to refinance an existing loan, the borrower must be current on the existing loan; and

              (d) BIA may not guarantee or insure a loan if it believes the lender would be willing to extend the requested financing without a BIA guaranty or insurance coverage.

              § 103.5
              What size loan will BIA guarantee or insure?
              BIA can guarantee or insure a loan or combination of loans of up to $500,000 for an individual Indian, or more for an acceptable Indian business entity, Tribe, or tribal enterprise involving two or more persons. No individual Indian may have an outstanding principal balance of more than $500,000 in guaranteed or insured loans at any time. BIA can limit the size of loans it will guarantee or insure, depending on the resources BIA has available.

              § 103.6
              To what extent will BIA guarantee or insure a loan?
              (a) BIA can guarantee up to 90 percent of the unpaid principal and accrued interest due on a loan.
              (b) BIA can insure up to the lesser of:
              (1) 90 percent of the unpaid principal and accrued interest due on a loan; or
              (2) 15 percent of the aggregate outstanding principal amount of all loans the lender has insured under the Program as of the date the lender makes a claim under its insurance coverage.
              (c) BIA's guaranty certificate or loan insurance agreement should reflect the lowest guaranty or insurance percentage rate that satisfies the lender's risk management requirements.
              (d) Absent exceptional circumstances, BIA will allow no more than:
              (1) Two simultaneous guarantees under the Program covering outstanding loans from the same lender to the same borrower; or
              (2) One loan guaranty under the Program when the lender simultaneously has one or more outstanding loans insured under the Program to the same borrower.

              § 103.7
              Must the borrower have equity in the business being financed?
              The borrower must be projected to have at least 20 percent equity in the business being financed, immediately after the loan is funded. If a substantial portion of the loan is for construction or renovation, the borrower's equity may be calculated based upon the reasonable estimated value of the borrower's assets after completion of the construction or renovation.

              § 103.8
              Is there any cost for a BIA guaranty or insurance coverage?
              BIA charges the lender a premium for a guaranty or insurance coverage.
              (a) The premium is:
              (1) Two percent of the portion of the original loan principal amount that BIA guarantees; or
              (2) One percent of the portion of the original loan principal amount that BIA insures, without considering the 15 percent aggregate outstanding principal limitation on the lender's insured loans.
              (b) Lenders may pass the cost of the premium on to the borrower, either by charging a one-time fee or by adding the cost to the principal amount of the borrower's loan. Adding the premium to the principal amount of the loan will not make any further premium due. BIA will guarantee or insure the additional principal to the same extent as the original approved principal amount.

            Subpart B—How a Lender Obtains a Loan Guaranty or Insurance Coverage

              § 103.9
              Who applies to BIA under the Program?
              The lender is responsible for determining whether it will require a BIA guaranty or insurance coverage, based upon the loan application it receives from an eligible borrower. If the lender requires a BIA guaranty or insurance coverage, the lender is responsible for completing and submitting a guaranty application or complying with a loan insurance agreement under the Program.

              § 103.10
              What lenders are eligible under the Program?
              (a) Except as specified in paragraph (b) of this section, a lender is eligible under the Program, and may be considered for BIA approval, if the lender is:

              (1) Regularly engaged in the business of making loans;

              (2) Capable of evaluating and servicing loans in accordance with reasonable and prudent industry standards; and
              (3) Otherwise reasonably acceptable to BIA.
              (b) The following lenders are not qualified to issue loans under the Program:
              (1) An agency or instrumentality of the Federal Government;
              (2) A lender that borrows money from any Federal Government source, other than the Federal Reserve Bank System, for purposes of relending;
              (3) A lender that does not include the interest on loans it makes in gross income, for purposes of chapter 1, title 26 of the United States Code; and
              (4) A lender that does not keep any ownership interest in loans it originates.

              § 103.11
              How does BIA approve lenders for the Program?
              (a) BIA approves each lender by entering into a loan guaranty agreement and/or a loan insurance agreement with it. BIA may provide up to three different levels of approval for a lender making guaranteed loans, depending on factors such as:
              (1) The number of loans the lender makes under the Program;
              (2) The total principal balance of the lender's Program loans;
              (3) The number of years the lender has been involved with the Program;
              (4) The relative benefits and opportunities the lender has given to Indian business efforts through the Program; and
              (5) The lender's historical compliance with Program requirements.
              (b) BIA will consider a lender's loan guaranty agreement and/or loan insurance agreement suspended as of:
              (1) The effective date of a change in the lender's corporate structure;
              (2) The effective date of a merger between the lender and any other entity, when the lender is not the surviving entity; or
              (3) The start of any legal proceeding in which substantially all of the lender's assets may be subject to disposition through laws governing bankruptcy, insolvency, or receivership.
              (c) A change in a lender's name, without any other change specified under paragraph (b) of this section, will not cause a suspension of the lender's loan guaranty agreement and/or loan insurance agreement. The lender should notify BIA of its name change as soon as possible.
              (d) If a lender's loan guaranty agreement and/or loan insurance agreement is suspended under paragraph (b) of this section, the lender, or its successor in interest, must enter into a new loan guaranty agreement and/or loan insurance agreement with BIA in order to secure any new BIA loan guarantees or insurance coverage.
              (e) The suspension of a loan guaranty agreement and/or loan insurance agreement does not affect the validity of any guaranty certificate or insurance coverage in effect before the date of the suspension. Any such certificate or insurance coverage will remain governed by applicable terms of the suspended loan guaranty agreement and/or loan insurance agreement.

              § 103.12
              How does a lender apply for a loan guaranty?
              To apply for a loan guaranty, a BIA-approved lender must submit to BIA a loan guaranty application request form, together with each of the following:
              (a) A written explanation from the lender indicating why it needs a BIA guaranty for the loan, and the minimum loan guarantee percentage it will accept;
              (b) A copy of the borrower's complete loan application;
              (c) A description of the borrower's equity in the business being financed;
              (d) A copy of the lender's independent credit analysis of the borrower's business, repayment ability, and loan collateral (including insurance);
              (e) An original report from a nationally-recognized credit bureau, dated within 90 days of the date of the lender's loan guaranty application package, outlining the credit history of the borrower, and to the extent permitted by law, each co-maker or guarantor of the loan (if any);

              (f) A copy of the lender's loan commitment letter to the borrower, showing at a minimum the proposed loan amount, purpose, interest rate, schedule of payments, and security (including insurance requirements), and the lender's terms and conditions for funding;
              (g) The lender's good faith estimate of any loan-related fees and costs it will charge the borrower, as authorized under this part;
              (h) If any significant portion of the loan will be used to finance construction, renovation, or demolition work, the lender's:
              (1) Insurance and bonding requirements for the work;
              (2) Proposed draw requirements; and
              (3) Proposed work inspection procedures;
              (i) If any significant portion of the loan will be used to refinance or otherwise retire existing indebtedness:
              (1) A clear description of all loans being paid off, including the names of all makers, cosigners and guarantors, maturity dates, payment schedules, uncured delinquencies, collateral, and payoff amounts as of a specific date; and
              (2) A comparison of the terms of the loan or loans being paid off and the terms of the new loan, identifying the advantages of the new loan over the loan being paid off.

              § 103.13
              How does a lender apply for loan insurance coverage?
              BIA-approved lenders can make loans insured under the Program in two ways, depending on the size of the loan:
              (a) For loans in an original principal amount of up to $100,000 per borrower, the lender can make each loan in accordance with the lender's loan insurance agreement, without specific prior approval from BIA.
              (b) For loans in an original principal amount of over $100,000, the lender must seek BIA's specific prior approval in each case. The lender must submit a loan insurance coverage application request form, together with the same information required for a loan guaranty under § 103.12, except for the information required by § 103.12(a).
              (c) The lender must submit a loan insurance application package even for a loan of less than $100,000 if:
              (1) The total outstanding balance of all insured loans the lender is extending to the borrower under the Program exceeds $100,000; or
              (2) the lender makes a request for interest subsidy, pursuant to § 103.21.

              § 103.14
              Can BIA request additional information?
              BIA may require the lender to provide additional information, whenever BIA believes it needs the information to properly evaluate a new lender, guaranty application, or insurance application. After BIA issues a loan guaranty or insurance coverage, the lender must let BIA inspect the lender's records at any reasonable time for information concerning the Program.

              § 103.15
              Are there any prohibited loan terms?
              A loan agreement guaranteed or insured under the Program may not contain:
              (a) Charges by the lender styled as “points,” loan origination fees, or any similar fees (however named), except that if authorized in the loan agreement, the lender may charge the borrower a reasonable annual loan servicing fee that:
              (1) Is not included as part of the loan principal; and
              (2) Does not bear interest;
              (b) Charges of any kind by the lender or by any third party except for the reasonable and customary cost of legal and architectural services, broker commissions, surveys, compliance inspections, title inspection and/or insurance, lien searches, appraisals, recording costs, premiums for required hazard, liability, key man life, and other kinds of insurance, and such other charges as BIA may approve in writing;
              (c) A loan repayment term of over 30 years;
              (d) Payments scheduled less frequently than annually;
              (e) A prepayment penalty, unless the terms of the penalty are clearly specified in BIA's loan guaranty or loan insurance conditions;
              (f) An interest rate greater than what BIA considers reasonable, taking into account the range of rates prevailing in the private market for similar loans;

              (g) A variable interest rate, unless the rate is tied to a specific prime rate published from time to time by a nationally recognized financial institution or news source;
              (h) An increased rate of interest based on default;
              (i) A fee imposed for the late repayment of any installment due, except for a late fee that:
              (1) Is imposed only after the borrower is at least 30 days late with payment;
              (2) Does not bear interest; and
              (3) Equals no more than 5 percent of the late installment;
              (j) An “insecurity” clause, or any similar provision permitting the lender to declare a loan default solely on the basis of its subjective view of the borrower's changed repayment prospects;
              (k) A requirement that the borrower take title to any real or personal property purchased with loan proceeds by a title instrument containing restrictions on alienation, control or use of the property, unless otherwise required by applicable law; or
              (l) A requirement that a borrower which is a tribe provide as security a general assignment of the tribe's trust income. If otherwise lawful, a tribe may provide as loan security an assignment of trust income from a specific source.

              § 103.16
              How does BIA approve or reject a loan guaranty or insurance application?
              (a) BIA reviews each guaranty or insurance application, and may evaluate each loan application independently from the lender. BIA bases its loan guaranty or insurance decisions on many factors, including compliance with this part, and whether there is a reasonable prospect of loan repayment from business cash flow, or if necessary, from liquidating loan collateral. Lenders are expected to obtain a first lien security interest in enough collateral to reasonably secure repayment of each loan guaranteed or insured under the Program, to the extent that collateral is available.
              (b) BIA approves applications by issuing an approval letter, followed by the procedures in § 103.18. If the guaranty or insurance application is incomplete, BIA may return the application to the lender, or hold the application while the lender submits the missing information. If BIA denies the application, it will provide the lender with a written explanation, with a copy to the borrower.

              § 103.17
              Must the lender follow any special procedures to close the loan?
              (a) BIA officials or their representatives may attend the closing of any loan or loan modification that BIA agrees to guarantee or insure. For guaranteed loans, and insured loans that BIA must individually review under this part, the lender must give BIA notice of the date of closing at least 5 business days before closing occurs.
              (b) At or prior to closing, the lender must obtain appropriate, satisfactory title and/or lien searches for each asset to be used as loan collateral.
              (c) At or prior to closing, the lender must obtain recent appraisals for all real property and improvements to be used as collateral for the loan, to the extent required by law.
              (d) At or prior to closing, the lender must document that the lender and borrower have complied with all applicable Federal, State, local, and tribal laws implicated by financing the borrower's business, for example by securing:
              (1) Copies of all permits and licenses required to operate the borrower's business;
              (2) Environmental studies required for construction and/or business operations under NEPA and other environmental laws;
              (3) Archeological or historical studies required by law; and
              (4) Certification by a registered surveyor or appropriate BIA official indicating that the proposed business will not be located in a special flood hazard area, as defined by applicable law.
              (e) The lender must supply BIA with copies of all final, signed loan closing documents within 30 days following closing. To the extent applicable, loan closing documents must include the following:
              (1) Promissory notes;

              (2) Security agreements, including pledge and similar agreements, and related financing statements (together with BIA's written approval of any assignment of specific tribal trust assets under § 103.15(l), or of any security interest in an individual Indian money account);
              (3) Mortgage instruments or deeds of trust (together with BIA's written approval, if required by 25 U.S.C. 483a, or if the mortgage is of a leasehold interest in tribal trust property);
              (4) Guarantees (other than from BIA);
              (5) Construction contracts, and plans and specifications;
              (6) Leases related to the business (together with BIA's written approval, if required under 25 CFR part 162);
              (7) Attorney opinion letters;
              (8) Resolutions made by a Tribe or business entity;
              (9) Waivers or partial waivers of sovereign immunity; and
              (10) Similar instruments designed to document the loan, establish the basis for a security interest in loan collateral, and comply with applicable law.
              (f) Unless BIA indicates otherwise in writing, the lender must close a guaranteed or insured loan within 90 days of any approval provided under § 103.16.

              § 103.18
              How does BIA issue a loan guaranty or confirm loan insurance?
              (a) A loan is guaranteed under the Program when all of the following occur:
              (1) BIA issues a signed loan guaranty certificate bearing a series number, an authorized signature, a guaranty percentage rate, the lender's name, the borrower's name, the original principal amount of the loan, and such other terms and conditions as BIA may require;
              (2) The loan closes and funds;
              (3) The lender pays BIA the applicable loan guaranty premium; and
              (4) The lender meets all of the conditions listed in the loan guaranty certificate.
              (b) A loan is insured under the Program when all of the following occur:
              (1) The loan's purpose and terms meet the requirements of the Program and the lender's loan insurance agreement with BIA;
              (2) The loan closes and funds;
              (3) The lender notifies BIA of the borrower's identity and organizational structure, the amount of the loan, the interest rate, the payment schedule, and the date on which the loan closing and funding occurred;
              (4) The lender pays BIA the applicable loan insurance premium;
              (5) If over $100,000 or if the loan requires interest subsidy, BIA approves the loan in writing; and
              (6) If over $100,000 or if the loan requires interest subsidy, the lender meets all of the conditions listed in BIA's written loan approval.

              § 103.19
              When must the lender pay BIA the loan guaranty or insurance premium?
              The premium is due within 30 calendar days of the loan closing. If not paid on time, BIA will send the lender written notice by certified mail (return receipt requested), or by a nationally-recognized overnight delivery service (signature of recipient required), stating that the premium is due immediately. If the lender fails to make the premium payment within 30 calendar days of the date of BIA's notice, BIA's guaranty certificate or insurance coverage with respect to that particular loan is void, without further action.

            Subpart C—Interest Subsidy

              § 103.20
              What is interest subsidy?
              Interest subsidy is a payment BIA makes for the benefit of the borrower, to reimburse part of the interest payments the borrower has made on a loan guaranteed or insured under the Program. It is available to borrowers whose projected or historical earnings before interest and taxes, after adjustment for extraordinary items, is less than the industry norm.

              § 103.21
              Who applies for interest subsidy payments, and what is the application procedure?

              (a) An eligible lender must request interest subsidy payments on behalf of an eligible borrower, after determining that the borrower qualifies. Typically, the lender should include a request for interest subsidy at the time it applies for a guaranty or insurance coverage under the Program. A request for interest subsidy must be supported by the information required in §§ 103.12 and 103.13 (relating to loan guaranty and insurance coverage applications). BIA approves, returns, or rejects interest subsidy requests in the same manner indicated in § 103.16, based on the factors in § 103.20 and BIA's available resources.
              (b) BIA's approval of interest subsidy for an insured loan may provide for specific limitations on the manner in which the lender and borrower can modify the loan.

              § 103.22
              How does BIA determine the amount of interest subsidy?
              Interest subsidy payments should equal the difference between the lender's rate of interest and the rate determined in accordance with 25 U.S.C. 1464. BIA will fix the amount of interest subsidy as of the date it approves the interest subsidy request.
              [66 FR 3867, Jan. 17, 2001, as amended at 67 FR 63543, Oct. 15, 2002]

              § 103.23
              How does BIA make interest subsidy payments?
              The lender must send BIA reports at least quarterly on the borrower's loan payment history, together with a calculation of the interest subsidy then due. The lender's reports and calculation do not have to be in any specific format, but in addition to the calculation the reports must contain at least the information required by § 103.33(a). Based on the lender's reports and calculation, BIA will send interest subsidy payments to the borrower in care of the lender. The payments belong to the borrower, but the borrower and lender may agree in advance on how the borrower will use interest subsidy payments. BIA may verify and correct interest subsidy calculations and payments at any time.

              § 103.24
              How long will BIA make interest subsidy payments?
              (a) BIA will issue interest subsidy payments for the term of the loan, up to 3 years. If interest subsidy payments still are justified, the lender may apply for up to two 1-year extensions of this initial term. BIA will make interest subsidy payments on a single loan for no more than 5 years.
              (b) BIA will choose the date from which it calculates interest subsidy years, usually the date the lender first extends the loan funds. Interest subsidy payments will apply to all loan payments made in the calendar years following that date.
              (c) Interest subsidy payments will not be due for any loan payment made after the corresponding loan guaranty or insurance coverage stops under the Program, regardless of the circumstances.

            Subpart D—Provisions Relating to Borrowers

              § 103.25
              What kind of borrower is eligible under the Program?
              (a) A borrower is eligible for a BIA-guaranteed or insured loan if the borrower is:
              (1) An Indian individual;
              (2) An Indian-owned business entity organized under Federal, State, or tribal law, with an organizational structure reasonably acceptable to BIA;
              (3) A tribe; or
              (4) A business enterprise established and recognized by a tribe.
              (b) To be eligible for a BIA-guaranteed or insured loan, a business entity or tribal enterprise must be at least 51 percent owned by Indians. If at any time a business entity or tribal enterprise becomes less than 51 percent Indian owned, the lender either may declare a default as of the date the borrower stopped being at least 51 percent Indian owned and exercise its remedies under this part, or else continue to extend the loan to the borrower and allow BIA's guaranty or insurance coverage to become invalid.
              [66 FR 3867, Jan. 17, 2001; 66 FR 46307, Sept. 4, 2001]

              § 103.26
              What must the borrower supply the lender in its loan application?
              The lender may use any form of loan application it chooses. However, the borrower must supply the lender the information listed in this section in order for BIA to process a guaranty or insurance coverage application:
              (a) The borrower's precise legal name, address, and tax identification number or social security number;

              (b) Proof of the borrower's eligibility under the Program;

              (c) A statement signed by the borrower, indicating that it is not delinquent on any Federal tax or other debt obligation;
              (d) The borrower's business plan, including resumes of all principals and a detailed discussion of the product or service to be offered, market factors, the borrower's marketing strategy, and any technical assistance the borrower may require;
              (e) A detailed description of the borrower's equity in the business being financed, including the method(s) of valuation;
              (f) The borrower's balance sheets and operating statements for the preceding 3 years, or so much of that period that the borrower has been in business;
              (g) The borrower's current financial statement, and the financial statements of all co-makers and guarantors of the loan (other than BIA);
              (h) At least 3 years of financial projections for the borrower's business, consisting of pro-forma balance sheets, operating statements, and cash flow statements;
              (i) A detailed list of all proposed collateral for the loan, including asset values and the method(s) of valuation;
              (j) A detailed list of all proposed hazard, liability, key man life, and other kinds of insurance the borrower will maintain on its business assets and operations;
              (k) If any significant portion of the loan will be used to finance construction, renovation, or demolition work:
              (1) Written quotes for the work from established and reputable contractors; and
              (2) To the extent available, copies of all construction and architectural contracts for the work, plans and specifications, and applicable building permits;
              (l) If the borrower is a tribe or a tribal enterprise, resolutions by the tribe and proof of authority under tribal law permitting the borrower to borrow the loan amount and offer the proposed loan collateral; and
              (m) If the borrower is a business entity, resolutions by the appropriate governing officials and proof of authority under its organizing documents permitting the borrower to borrow the loan amount and offer the proposed loan collateral.

              § 103.27
              Can the borrower get help preparing its loan application or putting its loan funds to use?
              A borrower may seek BIA's assistance when preparing a loan application or when planning business operations, including assistance identifying and complying with applicable laws as indicated by § 103.17(d). The borrower should contact the BIA field or agency office serving the area in which the borrower's business is to be located, or if there is no separate field or agency office serving the area, then the borrower should contact the BIA regional office serving the area.

            Subpart E—Loan Transfers

              § 103.28
              What if the lender transfers part of the loan to another person?

              (a) A lender may transfer one or more interests in a guaranteed loan to another person or persons, as long as the parties have in place an agreement that designates one person to perform all of the duties required of the lender under the Program and the loan guaranty certificate. Starting on the date of the transfer, only the person designated to perform the duties of the lender will be entitled to exercise the rights conferred by BIA's loan guaranty certificate, and will from that point forward be considered the lender for purposes of the Program. A lender under the Program must both service the guaranteed loan and own at least a 10 percent interest in the guaranteed loan. BIA will not consider more than one person at any given time to be the lender with respect to any loan guaranty certificate. If the person designated to perform the duties of the lender in an agreement among loan participants is not the original lender, then the provisions of § 103.29(a) will apply (relating to sale or assignment of guaranteed loans), and the person designated to perform the duties of the lender must give BIA notice of its interest in the loan. Failure to provide notice in accordance with § 103.29(a) will void BIA's loan guaranty certificate, without further action.

              (b) Transferring any interest in an insured loan to another person will void the insurance coverage for that loan, except where the transfer is effected by a merger.

              § 103.29
              What if the lender transfers the entire loan?
              (a) A lender may transfer all of its rights in a guaranteed loan to any other person. The acquiring person must send BIA written notice of the transfer, describing the borrower, the loan, BIA's loan guaranty certificate number, and the acquiring person's name and address. Starting on the date of the transfer, only the acquiring person will be entitled to exercise the rights conferred by BIA's loan guaranty certificate, and will from that point forward be considered the lender for purposes of the Program. The acquiring person must service the guaranteed loan and otherwise perform all of the duties required of the lender under the Program and the loan guaranty certificate. Except when a transfer is effected by a merger, any failure by the acquiring person to send BIA proper notice of the transfer within 30 calendar days of the transfer date will void BIA's loan guaranty certificate, without further action.
              (b) Transferring an insured loan to another person will void the insurance coverage for that loan, except where the transfer is effected by a merger.
              (c) If a lender is not the surviving entity after a merger, the lender's successor must notify BIA in writing of the change within 30 calendar days of the merger. The lender also must re-apply to become an approved lender under the Program, as indicated in § 103.11.

            Subpart F—Loan Servicing Requirements

              § 103.30
              What standard of care must a lender meet?
              Lenders must service all loans guaranteed or insured under the Program in a commercially reasonable manner, in accordance with standards and procedures adopted by prudent lenders in the BIA region in which the borrower's business is located, and in accordance with this part. If the lender fails to follow any of these standards, BIA may reduce or eliminate entirely the amount payable under its guaranty or insurance coverage to the extent BIA can reasonably attribute the loss to the lender's failure. BIA also may deny payment completely if the lender gets a loan guaranty or insurance coverage through fraud, or negligently allows a borrower's fraudulent loan application or use of loan funds to go undetected. In particular, and without limitation, lenders must:
              (a) Check and verify information contained in the borrower's loan application, such as the borrower's eligibility, the authority of persons acting on behalf of the borrower, and the title status of any proposed collateral;
              (b) Take reasonable precautions to assure that loan proceeds are used as specified in BIA's guaranty certificate or written insurance approval, or if not so specified, then in descending order of importance:
              (1) BIA's written loan guaranty approval;
              (2) The loan documents;
              (3) The terms of the lender's final loan commitment to the borrower; or
              (4) The borrower's loan application;
              (c) When feasible, require the borrower to use automatic bank account debiting to make loan payments;
              (d) Require the borrower to take title to real and personal property purchased with loan proceeds in the borrower's own name, except for real property to be held in trust by the United States for the benefit of a borrower that is a tribe;
              (e) Promptly record all security interests and subsequently keep them in effect. Lenders must record all mortgages and other security interests in accordance with State and local law, including the laws of any tribe that may have jurisdiction. Lenders also must record any leasehold mortgages or assignments of income involving individual Indian or tribal trust land with the BIA office having responsibility for maintaining records on that trust land;

              (f) Assure, to the extent reasonably practicable, that the borrower and any guarantor of the loan (other than BIA) keep current on all taxes levied on real and personal property used in the borrower's business or as collateral for the loan, and on all applicable payroll taxes;
              (g) Assure, to the extent reasonably practicable, that all required insurance policies remain in effect, including hazard, liability, key man life, and other kinds of insurance, in amounts reasonably necessary to protect the interests of the borrower, the borrower's business, and the lender;
              (h) Assure, to the extent reasonably practicable, that the borrower remains in compliance with all applicable Federal, State, local and tribal laws, including environmental laws and laws concerning the preservation of historical and archeological sites and data;
              (i) Assure, to the extent reasonably practicable, that the borrower causes any construction, renovation, or demolition work funded by the loan to proceed in accordance with approved construction contracts and plans and specifications, which must be sufficient in scope and detail to adequately govern the work;
              (j) Reserve for itself and BIA the right to inspect the borrower's business records and all loan collateral at any reasonable time;
              (k) Promptly notify the borrower in writing of any material breach by the borrower of the terms of its loan, with specific instructions on how to cure the breach and a deadline for doing so;
              (l) Participate in any probate, receivership, bankruptcy, or similar proceeding involving the borrower and any guarantor or co-maker of the borrower's debt, to the extent necessary to maintain the greatest possible rights to repayment; and
              (m) Otherwise seek to avoid and mitigate any potential loss arising from the loan, using at least that level of care the lender would use if it did not have a BIA loan guaranty or insurance coverage.

              § 103.31
              What loan servicing requirements apply to BIA?
              Once a lender extends a loan that is guaranteed or insured under the Program, BIA has no responsibility for decisions concerning it, except for:
              (a) Any approvals required under this part;
              (b) Any decisions reserved to BIA under conditions of BIA's guaranty certificate or insurance coverage; and
              (c) Decisions concerning a loan that the lender has assigned to BIA or to which BIA is subrogated by virtue of paying a claim based on a guaranty certificate or insurance coverage.

              § 103.32
              What sort of loan documentation does BIA expect the lender to maintain?
              For every loan guaranteed or insured under the Program, the lender must maintain:
              (a) BIA's original loan guaranty certificate or insurance coverage approval letter, if applicable;
              (b) Original signed and/or certified counterparts of all final loan documents, including those listed in § 103.17 (concerning documents required for loan closing), all renewals, modifications, and additions to those documents, and signed settlement statements;
              (c) Originals or copies, as appropriate, of all documents gathered by the lender under §§ 103.12, 103.13 and 103.26 (concerning information submitted by the borrower in its loan application, and information supplied to BIA in the lender's loan guaranty or insurance coverage application);
              (d) Originals or copies, as appropriate, of all applicable insurance binders or certificates, including without limitation hazard, liability, key man life, and title insurance;
              (e) A complete and current history of all loan transactions, including dated disbursements, payments, adjustments, and notes describing all contacts with the borrower;
              (f) Originals or copies, as appropriate, of all correspondence with the borrower, including default notices and evidence of receipt;
              (g) Originals or copies, as appropriate, of all correspondence, notices, news items or other information concerning the borrower, whether gathered by the lender or furnished to it, containing material information about the borrower and its business operations;

              (h) Originals or copies, as appropriate, of all advertisements, notices, title instruments, accountings, and other documentation of efforts to liquidate loan collateral; and
              (i) Originals or copies, as appropriate, of all notices, pleadings, motions, orders, and other documents associated with any legal proceeding involving the lender and the borrower or its assets, including without limitation judicial or non-judicial foreclosure proceedings, suits to collect payment, bankruptcy proceedings, probate proceedings, and any settlement associated with threatened or actual litigation.

              § 103.33
              Are there reporting requirements?
              (a) The lender must periodically report the borrower's loan payment history so that BIA can recalculate the government's contingent liability. Loan payment history reports must be quarterly unless BIA provides otherwise for a particular loan. These reports can be in any format the lender desires, as long as they contain:
              (1) The lender's name;
              (2) The borrower's name;
              (3) A reference to BIA's Loan Guaranty Certificate or Loan Insurance Agreement number;
              (4) The lender's internal loan number; and
              (5) The date and amount of all loan balance activity for the reporting period.
              (b) If applicable, the lender must supply a calculation of any interest subsidy payments that are due, as indicated in § 103.23.
              (c) If there is a transfer of any or all of the lender's ownership interest in the loan, the party receiving the ownership interest may be required to notify BIA, as indicated in §§ 103.28 and 103.29.
              (d) If there is a default on the loan, the lender must notify BIA, as indicated in §§ 103.35 and 103.36.
              (e) If the borrower ceases to qualify for a BIA-guaranteed or insured loan under § 103.25(b), the lender must promptly notify BIA even if the lender does not pursue default remedies under §§ 103.35 and 103.36. This notice allows BIA to eliminate the guaranty or insurance coverage from its active recordkeeping system.
              (f) If the loan is prepaid in full, the lender must promptly notify BIA in writing so that BIA can eliminate the guaranty or insurance coverage from its active recordkeeping system.
              (g) If a lender changes its name, it should notify BIA in accordance with § 103.11(c).

              § 103.34
              What if the lender and borrower decide to change the terms of the loan?
              (a) The lender must obtain written BIA approval before modifying a loan guaranteed or insured under the Program, if the change will:
              (1) Increase the borrower's outstanding principal amount (if a term loan), or maximum available credit (if a revolving loan).
              (i) BIA will approve or disapprove a loan increase based upon the lender's explanation of the borrower's need for additional funding, and updated information of the sort required under §§ 103.12, 103.13, and 103.26, as applicable.
              (ii) Upon approval by BIA and payment of an additional guaranty or insurance premium in accordance with §§ 103.8 and 103.19 and this section, the entire outstanding loan amount, as modified, will be guaranteed or insured (as the case may be) to the extent BIA specifies. The lender must pay the additional premium only on the increase in the outstanding principal amount of the loan (if a term loan) or the increase in the credit limit available to the borrower (if a revolving loan).
              (iii) Lenders may not increase the outstanding principal amount of a loan guaranteed or insured under the Program if a significant purpose of doing so would be to allow the borrower to pay accrued loan interest it otherwise would have difficulty paying.
              (2) Permanently adjust the loan repayment schedule.
              (3) Increase a fixed interest rate, convert a fixed interest rate to an adjustable interest rate, or convert an adjustable interest rate to a fixed interest rate.
              (4) Allow any changes in the identity or organizational structure of the borrower.
              (5) Allow any material change in the use of loan proceeds or the nature of the borrower's business.

              (6) Release any collateral taken as security for the loan, except items sold in the ordinary course of business and promptly replaced by similar items of collateral, such as inventory.
              (7) Allow the borrower to move any significant portion of its business operations to a location that is not on or near an Indian reservation or tribal service area recognized by BIA.
              (8) Be likely to materially increase the risk of a claim on BIA's guaranty or insurance coverage, or materially reduce the aggregate value of the collateral securing the loan.
              (9) Cure a default for which BIA is to receive notice under § 103.35(b).
              (b) In the case of an insured loan, the amount of which will not exceed $100,000 when combined with all other insured loans from the lender to the borrower, the lender need not obtain BIA's prior approval to make any of the loan modifications indicated in § 103.34(a), except as provided in § 103.21(b). However, all loan modifications must remain consistent with the lender's loan insurance agreement with BIA, and in the event of an increase in the borrower's outstanding principal amount (if a term loan), or maximum available credit (if a revolving loan), the lender must send BIA an additional premium payment in accordance with §§ 103.8, 103.19 and this section. The lender must pay the additional premium only on the increase in the outstanding principal amount of the loan (if a term loan) or the increase in the credit limit available to the borrower (if a revolving loan). To the extent a loan modification changes any of the information supplied to BIA under § 103.18(b)(3), the lender also must promptly notify BIA of the new information.
              (c) Subject to any applicable BIA loan guaranty or insurance coverage conditions, a lender may extend additional loans to a borrower without BIA approval, if the additional loans are not to be guaranteed or insured under the Program.

            Subpart G—Default and Payment by BIA

              § 103.35
              What must the lender do if the borrower defaults on the loan?
              (a) The lender must send written notice of the default to the borrower, and otherwise meet the standard of care established for the lender in this part. The lender's notice to the borrower should be sent as soon as possible after the default, but in any event before the lender's notice to BIA under paragraph (b) of this section. For purposes of the Program, “default” will mean a default as defined in this part.
              (b) The lender also must send written notice of the default to BIA by certified mail (return receipt requested), or by a nationally-recognized overnight delivery service (signature of recipient required) within 60 calendar days of the default, unless the default is fully cured before that deadline. This notice is required even if the lender grants the borrower a forbearance under § 103.36(a). One purpose of the notice is to give BIA the opportunity to intervene and seek assistance for the borrower, even though BIA has no duty, either to the lender or the borrower, to do so. Another purpose of the notice is to permit BIA to plan for a possible loss claim from the lender, under § 103.36(d). The lender's notice must clearly indicate:
              (1) The identity of the borrower;
              (2) The applicable Program guaranty certificate or insurance agreement number;
              (3) The date and nature of all bases for default;
              (4) If a monetary default, the amount of past due principal and interest, the date through which interest has been calculated, and the amount of any late fees, precautionary advances, or other amounts the lender claims;
              (5) The nature and outcome of any correspondence or other contacts with the borrower concerning the default; and
              (6) The precise nature of any action the borrower could take to cure the default.

              § 103.36
              What options and remedies does the lender have if the borrower defaults on the loan?

              (a) The lender may grant the borrower a temporary forbearance, even beyond any default cure periods specified in the loan documents, if doing so is likely to result in the borrower curing the default. However, BIA must approve in writing any forbearance or other agreement that:
              (1) Permanently modifies the terms of the loan in any manner indicated by § 103.34(a);
              (2) Would allow the borrower's default to extend beyond the deadline established in § 103.36(d) for the lender to elect a remedy; or
              (3) Is not likely to result in the borrower curing the default.
              (b) The lender may make precautionary advances on the borrower's behalf during the default, if doing so is reasonably necessary to ensure that loan recovery prospects do not significantly deteriorate. Items for which the lender may make precautionary advances include, for example:
              (1) Hazard, liability, or key man life insurance premiums;
              (2) Security measures to safeguard abandoned business assets;
              (3) Real or personal property taxes;
              (4) Corrective actions required by court or administrative orders; or
              (5) Essential maintenance.
              (c) BIA will guaranty or insure the amount of precautionary advances from the date of each advance to the same extent as other amounts due under the loan, if:
              (1) The borrower has demonstrated its inability or unwillingness to make the payment or perform the duty that jeopardizes loan recovery, including by undue delay in making the payment or performing the duty;
              (2) The total expense of all precautionary advances by the lender does not at the time of the advance exceed 10 percent of the outstanding principal balance of the loan;
              (3) Where loan document provisions do not require the borrower to repay precautionary advances (however termed) when made by the lender, or where the total expense of all precautionary advances by the lender will exceed 10 percent of the outstanding principal balance of the loan when made, the lender secures BIA's prior written approval; and
              (4) The lender properly claims and documents all precautionary advances, if and when it submits a claim for loss under § 103.37.
              (d) If the default remains uncured, the lender must send BIA a written notice by certified mail (return receipt requested), or by a nationally-recognized overnight delivery service (signature of recipient required) within 90 calendar days of the default to select one of the following remedies:
              (1) In the case of a guaranteed loan, the lender may submit a claim to BIA for its loss;
              (2) In the case of either a guaranteed or insured loan, the lender may liquidate all collateral securing the loan, and upon completion, if it has a residual loss on the loan, it may submit a claim to BIA for that loss; or
              (3) The lender may negotiate a loan modification agreement with the borrower to permanently change the terms of the loan in a manner that will cure the default. If the lender chooses this remedy, it may take no longer than 45 calendar days from the date BIA receives the notice of remedy selection to finalize a loan modification agreement and secure BIA's written approval of it, unless BIA specifically extends this deadline in writing. However, the lender may at any time before the expiration of the 45-day period (or any extension thereof) change its choice of remedy by sending BIA a notice otherwise complying with § 103.36(d)(1) or (2). If the lender fails to send BIA a notice changing its choice of remedy and does not finalize an approved loan modification agreement within the 45-day period (or any extension thereof), the lender's only permissible remedy under the Program will be to pursue the procedure specified in § 103.36(d)(2).
              (e) Failure by the lender to provide BIA with notice of the lender's election of remedy within 90 calendar days of the default, as indicated in § 103.36(d), will invalidate BIA's loan guaranty certificate or insurance coverage for that particular loan, absent an express waiver of this provision by BIA. BIA may preserve the validity of a loan guaranty certificate or insurance coverage through waiver of this provision only when BIA determines, in its discretion, that:

              (1) The lender consistently has acted in good faith, and

              (2) The lender's failure to provide timely notice either:
              (i) Has not caused any actual or potential prejudice to BIA; or
              (ii) Was the result of the lender relying upon specific written advice from a BIA official.

              § 103.37
              What must the lender do to collect payment under its loan guaranty certificate or loan insurance coverage?
              (a) For guaranteed loans, the lender must submit a claim for its loss on a form approved by BIA.
              (1) If the lender makes an immediate claim under § 103.36(d)(1), it must send BIA the claim for loss within 90 calendar days of the default by certified mail (return receipt requested), or by a nationally-recognized overnight delivery service (signature of recipient required). The lender's claim for loss may include interest that has accrued on the outstanding principal amount of the loan only through the date it submits the claim.
              (2) If the lender elects first to liquidate the collateral securing the loan under § 103.36(d)(2), and has a residual loss after doing so, it must send BIA the claim for loss within 30 calendar days of completing all liquidation efforts. The lender must perform collateral liquidation as expeditiously and thoroughly as is reasonably possible, within the standards established by this part. The lender's claim for loss may include interest that has accrued on the outstanding principal amount of the loan only through the earlier of:
              (i) The date it submits the claim;
              (ii) The date the lender gets a judgment of foreclosure or sale (or the non-judicial equivalent) on the principal collateral securing the loan; or
              (iii) One hundred eighty calendar days after the date of the default.
              (b) For insured loans, after liquidating all loan collateral, the lender must submit a claim for its loss (if any) on a form approved by BIA. The lender must send BIA the claim for loss by certified mail (return receipt requested), or by a nationally-recognized overnight delivery service (signature of recipient required) within 30 calendar days of completing all liquidation efforts. The lender must perform collateral liquidation as expeditiously and thoroughly as is reasonably possible, within the standards established by this part. The lender's claim for loss may include interest that has accrued on the outstanding principal amount of the loan through the earlier of:
              (1) The date it submits the claim;
              (2) The date the lender gets a judgment of foreclosure or sale (or the non-judicial equivalent) on the principal collateral securing the loan; or
              (3) One hundred eighty calendar days after the date of the default.
              (c) Whenever the lender liquidates loan collateral under § 103.36(d)(2), it must vigorously pursue all reasonable methods of collection concerning the loan collateral before submitting a claim for its residual loss (if any) to BIA. Without limiting the generality of the preceding sentence, the lender must:
              (1) Foreclose, either judicially or non-judicially, all rights of redemption the borrower or any co-maker or guarantor of the loan (other than BIA) may have in collateral under any mortgage securing the loan;
              (2) Gather and dispose of all personal property pledged as collateral under the loan, in accordance with applicable law;
              (3) Exercise all set-off rights the lender may have under contract or applicable law;
              (4) Make demand for payment on the borrower, all co-makers, and all guarantors of the loan (other than BIA); and
              (5) Participate fully in all bankruptcy proceedings that may arise involving the borrower and any co-maker or guarantor of the loan. Full participation might include, for example, filing a proof of claim in the case, attending creditors' meetings, and seeking a court order releasing the automatic stay of collection efforts so that the lender can liquidate affected loan collateral.

              (d) BIA may require further information, including without limitation copies of any documents the lender is to maintain under § 103.32 and all documentation of liquidation efforts, to help BIA evaluate the lender's claim for loss.

              (e) BIA will pay the lender the guaranteed or insured portion of the lender's claim for loss, to the extent the claim is based upon reasonably sufficient evidence of the loss and compliance with the requirements of this part. BIA will render a decision on a claim for loss within 90 days of receiving all information it requires to properly evaluate the loss.

              § 103.38
              Is there anything else for BIA or the lender to do after BIA makes payment?
              When BIA pays the lender on its claim for loss, the lender must sign and deliver to BIA an assignment of rights to its loan agreement with the borrower, in a document acceptable to BIA. Immediately upon payment, BIA is subrogated to all rights of the lender under the loan agreement with the borrower, and must pursue collection efforts against the borrower and any co-maker and guarantor, as required by law.

              § 103.39
              When will BIA refuse to pay all or part of a lender's claim?
              BIA may deny all or part of a lender's claim for loss when:
              (a) The loan is not guaranteed or insured as indicated in § 103.18;
              (b) The guarantee or insurance coverage has become invalid under §§ 103.28, 103.29, or 103.36(e);
              (c) The lender has not met the standard of care indicated in § 103.30;
              (d) The lender presents a claim for a residual loss after attempting to liquidate loan collateral, and:
              (1) The lender has not made a reasonable effort to liquidate all security for the loan;
              (2) The lender has taken an unreasonable amount of time to complete its liquidation efforts, the probable consequence of which has been to reduce overall prospects of loss recovery; or
              (3) The lender's loss claim is inflated by unreasonable liquidation expenses or unjustifiable deductions from collateral liquidation proceeds applied to the loan balance; or
              (e) The lender has otherwise failed in any material respect to follow the requirements of this part, and BIA can reasonably attribute some or all of the lender's loss to that failure.

              § 103.40
              Will BIA make exceptions to its criteria for denying payment?
              (a) BIA will not reduce or deny payment solely on the basis of §§ 103.39(c) or (e) when the lender making the claim for loss:
              (1) Is a person to whom a previous lender transferred the loan under §§ 103.28 or 103.29 before maturity for value;
              (2) Notified BIA of its acquisition of the loan interest as required by §§ 103.28 or 103.29;
              (3) Had no involvement in or knowledge of the actions or circumstances that would have allowed BIA to reduce or deny payment to a previous lender; and
              (4) Has not itself violated the standards set forth in §§ 103.39(c) or (e).
              (b) If BIA makes payment to a lender under this section, it may seek reimbursement from the previous lender or lenders who contributed to the loss by violating §§ 103.39(c) or (e).

              § 103.41
              What happens if a lender violates provisions of this part?
              In addition to reducing or eliminating payment on a specific claim for loss, BIA may either temporarily suspend, or permanently bar, a lender from making or acquiring loans under the Program if the lender repeatedly fails to abide by the requirements of this part, or if the lender significantly violates the requirements of this part on any single occasion.

              § 103.42
              How long must a lender comply with Program requirements?
              (a) A lender must comply in general with Program requirements during:
              (1) The effective period of its loan guaranty agreement or loan insurance agreement; and
              (2) Whatever additional period is necessary to resolve any outstanding loan guaranty or insurance claims or coverage the lender may have.
              (b) Except as otherwise required by law, a lender must maintain records with respect to a particular loan for 6 years after either:
              (1) The loan is repaid in full; or

              (2) The lender accepts payment from BIA for a loss on the loan, pursuant to a guaranty certificate or an insurance agreement.

              (c) At any time 2 years or more following one of the events specified in paragraphs (b)(1) or (2) of this section, a lender may convert its records for corresponding loans to any electronic format that is readily retrievable and that provides an accurate, detailed image of the original records. Upon converting its records in this manner, the lender may dispose of its original loan records.
              (d) This section does not restrict any claims BIA may have against the lender or any other party arising from the lender's participation in the Program.

              § 103.43
              What must the lender do after repayment in full?
              The lender must completely and promptly release of record all remaining collateral for a guaranteed or insured loan after the loan has been paid in full. The release must be at the lender's sole cost. In addition, if the loan is prepaid the lender must notify BIA in accordance with § 103.33(f).

            Subpart H—Definitions and Miscellaneous Provisions

              § 103.44
              What certain terms mean in this part.

                BIA means the Bureau of Indian Affairs within the United States Department of the Interior.

                Default means:
              (1) The borrower's failure to make a scheduled loan payment when it is due;
              (2) The borrower's failure to meet a material condition of the loan agreement;
              (3) The borrower's failure to comply with any other condition, covenant or obligation under the terms of the loan agreement within applicable grace or cure periods;
              (4) The borrower's failure to remain at least 51 percent Indian owned, as provided in § 103.25(b);
              (5) The filing of a voluntary or involuntary petition in bankruptcy listing the borrower as debtor;
              (6) The imposition of a Federal, State, local, or tribal government lien on any assets of the borrower or assets otherwise used as collateral for the loan, except real property tax liens imposed by law to secure payments that are not yet due;
              (7) Any default defined in the loan agreement, to the extent the definition is not inconsistent with this part.

                Equity means the value, after deducting all debt, of the borrower's tangible assets in the business being financed, on which a lender can perfect a first lien security interest. It can include cash, securities, or other cash equivalent instruments, but cannot include the value of contractual options, the right to pay below market rental rates, or similar rights if those rights:
              (1) Are unassignable; or
              (2) Can expire before maturity of the loan.

                Indian means a person who is a member of a tribe as defined in this part.

                Loan agreement means the collective terms and conditions under which the lender extends a loan to a borrower, as reflected by the documents that evidence the loan.

                Mortgage means a consensual lien on real or personal property in favor of the lender, given by the borrower or a co-maker or guarantor of the loan (other than BIA), to secure loan repayment. The term “mortgage” includes “deed of trust.”

                NEPA means the National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq.

                Person means any individual or distinct legal entity.

                Program means the BIA's Loan Guaranty, Insurance, and Interest Subsidy Program, established under 25 U.S.C. 1481 et seq., 25 U.S.C. 1511 et seq., and this part 103.

                Reservation means any land that is an Indian reservation, California rancheria, public domain Indian allotment, pueblo, Indian colony, former Indian reservation in Oklahoma, or land held by an Alaska Native corporation under the provisions of the Alaska Native Claims Settlement Act (85 Stat. 688), as amended.

                Secretary means the Secretary of the United States Department of the Interior, or his authorized representative.

                Tribe means any Indian or Alaska Native tribe, band, nation, pueblo, rancheria, village, community or corporation that the Secretary acknowledges to exist as an Indian tribe, and that is eligible for services from BIA.

              § 103.45
              Information collection.

              (a) The information collection requirements of §§ 103.11, 103.12, 103.13, 103.14, 103.17, 103.21, 103.23, 103.26, 103.32, 103.33, 103.34, 103.35, 103.36, 103.37, and 103.38 have been approved by the Office of Management and Budget under 44 U.S.C. 3501 et seq., and assigned approval number 1076-0020. The information will be used to approve and make payments on Federal loan guarantees, insurance agreements, and interest subsidy awards. Response is required to obtain a benefit.
              (b) The burden on the public to report this information is estimated to average from 15 minutes to 2 hours per response, including the time for reviewing instructions, gathering and maintaining data, and completing and reviewing the information collection. Direct comments regarding the burden estimate or any other aspect of this information collection to the Information Collection Control Officer, Bureau of Indian Affairs, MS 4613, 1849 C Street, NW., Washington, DC 20240.

          Pt. 111
          PART 111—ANNUITY AND OTHER PER CAPITA PAYMENTS

            Sec.
            111.1
            Persons to share payments.
            111.2
            Enrolling non-full-blood children.
            111.3
            Payments by check.
            111.4
            Election of shareholders.
            111.5
            Future payments.

            Authority:
            5 U.S.C. 301.

            Source:
            22 FR 10549, Dec. 24, 1957, unless otherwise noted. Redesignated at 47 FR 13327, Mar. 30, 1982.

            § 111.1
            Persons to share payments.
            In making all annuity and other per capita payments, the funds shall be equally divided among the Indians entitled thereto share and share alike. The roll for such payments should be prepared on Form 5-322, 1
               in strict alphabetical order by families of husband, wife, and unmarried dependent minor children. Unless otherwise instructed,

                1 Forms may be obtained from the Commissioner of Indian Affairs, Washington, D.C.

            (a) Indians of both sexes may be considered adults at the age of 18 years;
            (b) Deceased enrollees may be carried on the rolls for one payment after death;
            (c) Where final rolls have been prepared constituting the legal membership of the tribe, only Indians whose names appear thereon are entitled to share in future payments, after-born children being excluded and the shares of deceased enrollees paid to the heirs if determined or if not determined credited to the estate pending determination; and
            (d) The shares of competent Indians will be paid to them directly and the shares of incompetents and minors deposited for expenditure under the individual Indian money regulations.

              Cross References:
              For regulations pertaining to the determination of heirs and approval of wills, see part 15 and subpart G of part 11 of this chapter. For individual Indian money regulations, see part 115 of this chapter.

            § 111.2
            Enrolling non-full-blood children.
            Where an Indian woman was married to a white man prior to June 7, 1897, and was at the time of her marriage a recognized member of the tribe even though she left it after marriage and lived away from the reservation, the children of such a marriage should be enrolled—and, also in the case of an Indian woman married to a white man subsequent to the above date but who still maintains her affiliation with the tribe and she and her children are recognized members thereof; however, where an Indian woman by marriage with a white man after June 7, 1897, has, in effect, withdrawn from the tribe and is no longer identified with it, her children should not be enrolled. In case of doubt all the facts should be submitted to the Bureau of Indian Affairs, Washington, D.C., for a decision.

            § 111.3
            Payments by check.

            All payments should be made by check. In making payments to competent Indians, each check should be drawn to the order of the enrollee and given or sent directly to him. Powers of attorney and orders given by an Indian to another person for his share in a payment will not be recognized. Superintendents will note in the “Remarks” column on the roll the date of birth of each new enrollee and the date of death of deceased annuitants.

            § 111.4
            Election of shareholders.
            An Indian holding equal rights in two or more tribes can share in payments to only one of them and will be required to elect with which tribe he wishes to be enrolled and to relinquish in writing his claims to payments to the other. In the case of a minor the election will be made by the parent or guardian.

            § 111.5
            Future payments.
            Indians who have received or applied for their pro rata shares of an interest-bearing tribal fund under the act of March 2, 1907 (34 Stat. 1221; 25 U.S.C. 119, 121), as amended by the act of May 18, 1916 (39 Stat. 128), will not be permitted to participate in future payments made from the accumulated interest.

          PART 114—SPECIAL DEPOSITS [RESERVED]

          Pt. 115
          PART 115—TRUST FUNDS FOR TRIBES AND INDIVIDUAL INDIANS

              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.
              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 BIA-approved 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?
              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.

            Source:
            66 FR 7094, Jan. 22, 2001, unless otherwise noted.

            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.

                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 non-compos 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 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:
              (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 BIA-approved 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 BIA-approved 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 (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 BIA-approved 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 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 non-compos 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 non-compos 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 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 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 re-paid.

              § 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.

                ER22JA01.172

              [66 FR 7094, Jan. 22, 2001, as amended at 66 FR 8768, Feb. 2, 2001]

              § 115.702
              What specific sources of money will be accepted for deposit into a trust account?
              We must accept proceed on behalf of tribes or individuals from the following sources:

                ER22JA01.173

                ER22JA01.174

                ER22JA01.175

              [66 FR 7094, Jan. 22, 2001. Redesignated at 66 FR 8768, Feb. 2, 2001]

              § 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.

              § 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
                (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 non-interest 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.

          Pt. 117
          PART 117—DEPOSIT AND EXPENDITURE OF INDIVIDUAL FUNDS OF MEMBERS OF THE OSAGE TRIBE OF INDIANS WHO DO NOT HAVE CERTIFICATES OF COMPETENCY

            Sec.
            117.1
            Definitions.
            117.2
            Payment of taxes of adult Indians.
            117.3
            Payment of taxes of Indians under 21 years of age.
            117.4
            Disbursement of allowance funds.
            117.5
            Procedure for hearings to assume supervision of expenditure of allowance funds.
            117.6
            Allowance for minors.
            117.7
            Disbursement or expenditure of surplus funds.
            117.8
            Purchase of land.
            117.9
            Construction and repairs.
            117.10
            Purchase of automotive equipment.
            117.11
            Insurance.
            117.12
            Costs of recording and conveyancing.
            117.13
            Telephone and telegraph messages.
            117.14
            Miscellaneous expenditure of surplus funds.
            117.15
            Collections from insurance companies.
            117.16
            Reimbursement to surplus funds.
            117.17
            Inactive surplus funds accounts.
            117.18
            Withdrawal and payment of segregated trust funds.
            117.19
            Debts of Indians.
            117.20
            Purchase orders.
            117.21
            Fees and expenses of attorneys.
            117.22
            Disbursements to legal guardians.
            117.23
            Transactions between guardian and ward.
            117.24
            Compensation for guardians and their attorneys.
            117.25
            Charges for services to Indians.
            117.26
            Expenses incurred pending qualification of an executor or administrator.
            117.27
            Custody of funds pending administration of estates.
            117.28
            Payment of claims against estates.
            117.29
            Sale of improvements.
            117.30
            Sale of personal property.
            117.31
            Removal of restrictions from personal property.
            117.32
            Funds of Indians of other tribes.
            117.33
            Signature of illiterates.
            117.34
            Financial status of Indians confidential.
            117.35
            Appeals.

            Authority:
            5 U.S.C. 301.

            Source:
            22 FR 10554, Dec. 24, 1957, unless otherwise noted. Redesignated at 47 FR 13327, Mar. 30, 1982.

            § 117.1
            Definitions.
            When used in the regulations in this part the following words or terms shall have the meaning shown below:
            (a) Secretary means the Secretary of the Interior or his authorized representative.
            (b) Commissioner means the Commissioner of Indian Affairs or his authorized representative.
            (c) Superintendent means the superintendent of the Osage Agency.
            (d) Quarterly payment means the payment of not to exceed $1,000 which is made each fiscal quarter to or on behalf of an adult Indian, from the following sources:
            (1) The pro rata distribution of tribal mineral income and other tribal revenues.
            (2) The interest on segregated trust funds.
            (3) Surplus funds in addition to the income from the foregoing sources in the amount necessary to aggregate $1,000 when the income from those sources is less than $1,000 and the Indian has a balance of accumulated surplus funds in excess of $10,000.
            (e) Surplus funds means all those moneys and securities readily convertible into cash, except allowance funds and segregated trust funds, which are held to the credit of an Indian at the Osage Agency and which may be disbursed, expended or invested only upon authorization by the Secretary. The term includes:
            (1) That portion of the quarterly distribution of tribal income and interest on segregated trust funds, in excess of $1,000, belonging to an adult Indian.
            (2) The proceeds, including appreciation, of the sale or conversion of restricted real or personal property (other than partition sales).
            (3) Payments made by insurance companies or others for loss or damage to restricted real or personal property.
            (4) All moneys and securities, other than segregated trust funds, to the credit of an Indian who is less than 21 years of age (except the income from restricted lands payable as provided by § 117.3).
            (5) Funds and securities placed to the credit of an Indian upon the distribution of an Osage estate.
            (f) Allowance funds means that income payable to or on behalf of a living adult Indian, the expenditure and disbursement of which is not subject to supervision unless authorized pursuant to the procedure contained in § 117.5. The term includes:
            (1) The quarterly payment in an amount not to exceed $1,000.
            (2) The rentals and income from restricted lands owned by the Indian.
            (3) The rentals and income from restricted lands owned by the minor children of the Indian, as provided in § 117.3.
            (4) Income from investments.
            (5) Interest on deposits to the credit of the Indian.
            (g) Segregated trust funds means those moneys held in the United States Treasury at interest to the credit of an Indian which represent pro rata shares of the segregation of tribal trust funds and the proceeds of the partition of restricted lands.

            § 117.2
            Payment of taxes of adult Indians.
            The superintendent may cause to be paid out of any money heretofore accrued or hereafter accruing to the credit of any adult Indian all taxes of every kind and character for which such Indian is or may be liable before paying to or for such person any funds as required by law. All checks in payment of taxes shall be made payable to the proper collector. For the purpose of establishing a fund with which to meet the payment of such taxes when due, the Superintendent may cause the funds of an adult Indian to be hypothecated in the following manner:
            (a) For the payment of ad valorem taxes, one-fourth of the estimated amount ad valorem taxes from each quarterly payment unless this procedure would cause the obligation of more than 25 percent of such quarterly payments, in which event the necessary additional funds shall be retained from other allowance funds payable to such person under the law. If there be no other allowance funds available, or if the funds from these sources are insufficient, one-fourth of the estimated amount of such ad valorem taxes may be obligated from each quarterly payment. If an Indian who is liable for ad valorem taxes has no allowance funds, or such funds are insufficient for the payment thereof, surplus funds may be used for such payment.
            (b)(1) For the payment of income taxes, one-half of the estimated amount of income taxes from each semi-annual payment of interest on deposits, but if such interest payments are insufficient to meet this obligation, additional funds shall be retained from interest on investments, rentals, or other allowance funds.
            (2) Whenever funds are withheld for the purpose of establishing a fund to meet the payment of taxes, the Indian shall be notified of the action taken.

            § 117.3
            Payment of taxes of Indians under 21 years of age.
            All taxes assessed against the restricted lands of Indians less than 21 years of age shall be paid by the superintendent direct to the collector from the rents and income derived from such lands, and the balance, if any, of such rents and income shall be paid to the living parents or parent. If the parents are separated, the balance shall be paid to the parent having custody of the Indian under 21 years of age. All other taxes for which an Indian under 21 years of age may be liable shall be paid from his surplus funds.

            § 117.4
            Disbursement of allowance funds.
            Except as provided in § 117.5, all allowance funds shall be disbursed to the Indian owner unless the Indian owner directs otherwise in writing. At the request of the Indian owner, such funds may be retained by the superintendent as voluntary deposits subject to withdrawal or other disposition upon demand or direction of the Indian owner. The superintendent may recognize a power of attorney executed by the Indian and may disburse the allowance funds of the Indian in conformity therewith so long as the power of attorney remains in force and effect.

            § 117.5
            Procedure for hearings to assume supervision of expenditure of allowance funds.

            (a) Whenever the superintendent has reason to believe that an adult Indian is wasting or squandering his allowance funds the superintendent may cause an investigation and written report of the facts to be made. If the report indicates that the Indian is wasting or squandering his allowance funds the following notice shall be served upon the Indian, in person or by registered mail, and a copy thereof shall likewise be served upon his guardian if the Indian is under guardianship:

              Section 1 of the act of February 27, 1925 (43 Stat. 1008) provides in part as follows:
              “All payments to adults not having certificates of competency, including amounts paid for each minor, shall, in case the Secretary of the Interior finds that such adults are wasting or squandering said income, be subject to the supervision of the Superintendent of the Osage Agency: . . .”
              Enclosed is a copy of a report which has been made to me concerning your handling and management of the income paid to you through the Osage Agency. This report indicates that you have been wasting and squandering your payments.
              You are hereby notified that a hearing will be held in the Osage Indian Agency, Pawhuska, Oklahoma, at __ m., on the _____ day of _______, 19__, before the Superintendent, for the purpose of taking testimony and evidence to be submitted to the Commissioner of Indian Affairs for his consideration in determining whether your payments shall be subject to the supervision of the Superintendent.
              You are requested to be present at the hearing at the time and place designated above. You may introduce at the hearing such testimony and evidence as you deem appropriate to show that you are not wasting or squandering your payments and that your payments should continue to be made to you without supervision for your unrestricted use.
              You are entitled to employ an attorney to assist you in this matter. Upon your request the employees of the Osage Agency will furnish you with any information you desire concerning your accounts at the Osage Agency or any of your transactions handled through the Osage Agency.
              Date.
              Superintendent.

            (b) A hearing shall be held pursuant to the notice, the date of which shall be not less than 30 days after the date of the notice. For good cause shown to exist the superintendent may continue the hearing to a later date.
            (c) A record of the proceedings, consisting of the superintendent's preliminary report, the notice and proof of service, all testimony and evidence introduced at the hearing, and all briefs and letters filed by the Indian or his attorney shall be submitted to the Commissioner, together with a recommendation from the superintendent.
            (d) Upon a finding by the Commissioner that the Indian is wasting or squandering his income, his allowance funds shall thereafter be subject to the supervision of the superintendent. Notice of the decision of the Commissioner shall be furnished all interested parties.

            § 117.6
            Allowance for minors.
            The superintendent may disburse from the surplus funds of an Indian under 21 years of age not to exceed $300 quarterly for the support and maintenance of the minor. Disbursement may be made to the parent, guardian, or other person, school or institution having actual custody of the minor, or, when the minor is 18 years of age or over, disbursement may be made direct to the minor.

            § 117.7
            Disbursement or expenditure of surplus funds.

            Except as provided in the regulations in this part, no disbursement or expenditure of surplus funds of Indians shall be made without the consent of the Indian owner and until authorization has been obtained from the Commissioner. Application by an Indian or his legal guardian, or if he is a minor, by his parent or legal guardian, for the expenditure of surplus funds shall be presented to the Commissioner, fully justified with the appropriate attachments such as court orders, decrees or other papers. Such application shall contain full information regarding the individual including his cash balance, the sum invested, the number of shares in the Osage mineral estate, total income from all sources including that paid on behalf of minors, the family status and the occupation or industry of the applicant. When request is made for payment to the individual without supervision, the record of said individual and his ability to handle such funds shall be shown.

            § 117.8
            Purchase of land.
            Upon written application of an adult Indian, the superintendent may disburse not to exceed $10,000 from the surplus funds of such Indian for the purchase of land, the title to which has been examined and accepted by the special attorney for the Osage Indians or other legal officer designated by the Commissioner. In all cases title must be taken by deed containing a clause restricting alienation or encumbrance without the consent of the Secretary of the Interior or his authorized representative.

            § 117.9
            Construction and repairs.
            Upon written application by an adult Indian, the superintendent may disburse not to exceed $1,000 during any one fiscal year from the surplus funds of such Indian to make repairs and improvements to restricted real property and in addition not to exceed $300 for new construction. When such expenditures are being made on property producing an income, reimbursement shall be required from such income unless otherwise directed by the Commissioner. When an Indian refuses to make application for funds to defray the cost of repairs necessary to preserve restricted property, the superintendent may, when authorized by the Commissioner, expend the surplus funds of the Indian for such repairs.

            § 117.10
            Purchase of automotive equipment.
            The superintendent may disburse from the surplus funds of an adult Indian not to exceed $2,000 for the purchase of automotive equipment when the Indian agrees in writing to carry property and liability insurance on the automotive equipment and to reimburse his surplus funds account from allowance funds within 24 months. No disbursement of surplus funds for the purchase of automotive equipment shall be made if the fulfillment of the reimbursable agreement will endanger the payment of taxes, insurance or other obligations, or result in the inability of the Indian to meet his current living expenses from allowance funds.

            § 117.11
            Insurance.
            The superintendent may obtain policies of insurance covering the restricted property, real or personal, of minor Indians and pay the premiums thereon from the funds of the minors. Upon application by an adult Indian the superintendent may procure insurance on any restricted property, real or personal, owned by the applicant and pay the necessary premiums from his surplus or allowance funds. When authorized by the Commissioner, the superintendent may also procure insurance on restricted property, real or personal, of any adult Indian who neglects or refuses to take out such insurance.

            § 117.12
            Costs of recording and conveyancing.
            The superintendent may expend the surplus funds of an Indian to make direct payment of recording fees and costs, of conveyancing, including abstracting costs, which are properly payable by the Indian.

            § 117.13
            Telephone and telegraph messages.
            The superintendent may expend the surplus funds of an Indian to make direct payment for telephone and telegraph messages sent by the agency or received at the agency at the instance of the Indian or his guardian or attorney.

            § 117.14
            Miscellaneous expenditure of surplus funds.
            Upon application by an adult Indian the superintendent may disburse the surplus funds of such Indian for the following purposes:
            (a) Medical, dental, and hospital expenses for the applicant or a member of his family, not to exceed one thousand dollars ($1,000) during any one fiscal year.
            (b) Funeral expenses, including the funeral feast, of a deceased member of his family, in an amount not to exceed one thousand dollars ($1,000).
            (c) A tombstone or monument to mark the grave of a deceased member of his family in amount not to exceed five hundred dollars ($500).
            (d) Court costs in any judicial proceeding to which the applicant is a party.
            (e) Bond premiums, except bail and supersedeas bonds.
            (f) For miscellaneous purposes, not to exceed five hundred dollars ($500) during any one fiscal year.

            § 117.15
            Collections from insurance companies.
            Moneys collected from insurance companies for loss or damage to restricted real or personal property shall be deposited to the credit of the Indian owner as surplus funds. Moneys so deposited to the credit of an adult Indian may, upon the written application of the Indian, be disbursed by the superintendent for the purpose of repairing or replacing the property. Moneys collected from insurance companies for loss or damage to unrestricted real or personal property shall be paid to the Indian for his unrestricted use.

            § 117.16
            Reimbursement to surplus funds.
            When expenditures have been made from surplus funds upon the condition, and with the written agreement of the Indian, that reimbursement or repayment shall be made from future allowance funds, the superintendent is authorized to withhold from succeeding quarterly payments or other allowance funds such amounts as may be necessary to effect reimbursement within a period not exceeding 24 months from date of the first expenditure under the given authority.

            § 117.17
            Inactive surplus funds accounts.
            When the balance of surplus funds to the credit of an adult Indian is less than $300 and when there is no likelihood of its increase within 90 days, the superintendent may disburse the entire balance to the Indian owner for his unrestricted use.

            § 117.18
            Withdrawal and payment of segregated trust funds.
            The withdrawal and payment of segregated trust funds will be made only upon application and satisfactory evidence that the withdrawal and payment of such funds would be to the best interest of the Indian in view of all the circumstances shown to exist. The segregated trust funds of an Indian under guardianship or an Indian under 21 years of age shall not be released and paid except to a guardian appointed by a proper court and after the filing of a bond approved by the court conditioned upon the faithful handling of the funds. Applications for the withdrawal and payment of segregated trust funds must be made upon the forms prescribed by the Secretary for that purpose.

            § 117.19
            Debts of Indians.
            No indebtedness of Indians will be paid from their funds under the control or supervision of the Secretary unless authorized in writing and obligated against their accounts by the superintendent or some other designated employee except in cases of emergency involving the protection or preservation of life or property, which emergency must be clearly shown. With this exception, no authorization or obligation against the account of any Indian for indebtedness incurred by him shall be made by the superintendent unless specifically authorized by the regulations in this part.

            § 117.20
            Purchase orders.

            Purchase orders may be issued by the superintendent for expenditures authorized by the regulations in this part or for expenditures specifically authorized by the Commissioner. When necessary to prevent hardship or suffering, purchase orders may be issued by the superintendent against the future income of an Indian in an amount not to exceed 80 percent of the anticipated quarterly payment. The payment of purchase orders issued against future income shall be contingent upon the availability of funds.

            § 117.21
            Fees and expenses of attorneys.
            When payment of an attorney fee for services to an Indian is to be made from his surplus funds, the employment of the attorney by the Indian must be approved in advance. All fees will be determined on a quantum merit basis and paid upon completion of the services. The superintendent may approve the employment of an attorney, determine the fee, and disburse the surplus funds of the Indian in payment thereof when the fee does not exceed $500. Upon application by the Indian and upon the presentation of properly authenticated vouchers, the superintendent may disburse the surplus funds of the Indian in an amount not to exceed $200 in payment of necessary expenses incurred by the attorney.

            § 117.22
            Disbursements to legal guardians.
            Any disbursement authorized to be made to an Indian by the regulations of this part may, when the Indian is under guardianship, be made by the superintendent to the guardian. All expenditures by a guardian of the funds of his ward must be approved in writing by the court and the superintendent.

            § 117.23
            Transactions between guardian and ward.
            Business dealings between the guardian and his ward involving the sale or purchase of any property, real or personal, by the guardian to or from the ward, or to or from any store, company or organization in which the guardian has a direct interest or concern or contrary to the policy of the Department and shall not be approved by the superintendent without specific authority from the Commissioner.

            § 117.24
            Compensation for guardians and their attorneys.

            (a) The superintendent may approve compensation for services rendered by the guardian of an Indian on an annual basis, the amount of the compensation to be determined by application of the following schedule to the moneys collected by the guardian:

              First $1,000 or portion thereof, not to exceed 10 percent.
              Second $1,000 or portion thereof, not to exceed 9 percent.
              Third $1,000 or portion thereof, not to exceed 8 percent.
              Fourth $1,000 or portion thereof, not to exceed 7 percent.
              Fifth $1,000 or portion thereof, not to exceed 6 percent.
              Sixth $1,000 or portion thereof, not to exceed 5 percent.
              Seventh $1,000 or portion thereof, not to exceed 4 percent.
              Eighth $1,000 or portion thereof, not to exceed 3 percent.
              Ninth $1,000 or portion thereof, not to exceed 2 percent.
              All above $9,000 not to exceed 1 percent.

            (b) Balance carried forward from previous reports and moneys received by a guardian or his attorney as compensation shall be excluded in determining the compensation of the guardian or his attorney.
            (c) The attorney for a guardian shall be allowed compensation in an amount equal to one-half of the amount allowed the guardian under the foregoing schedule except when such attorney is himself the guardian and acting as his own attorney, in which event he shall be allowed a fee of not to exceed one-fourth of the amount allowed the guardian under the foregoing schedule in addition to the fee as guardian.
            (d) The superintendent may in his discretion permit the guardian to collect rentals from restricted city or town properties belonging to his ward.

            § 117.25
            Charges for services to Indians.

            The superintendent shall make the following charges for services to Indians: Five per cent of all interest and non-liquidating dividends received from all types of securities, including stocks, bonds, and mortgages held in trust for individual Indians and interest on group investments. Such fees shall be deposited in the Treasury of the United States to the credit of the fund “Proceeds of Oil and Gas Leases, Royalties, etc., Osage Reservation, Oklahoma”.

            § 117.26
            Expenses incurred pending qualification of an executor or administrator.
            Pending the qualification of the executor or administrator of the estate of a deceased Indian of one-half or more Indian blood who did not have a certificate of competency at the time of his death, the superintendent may authorize the extension of credit for the following purposes, subject to allowance of claims by the executor or administrator and approval thereof by the court:
            (a) Funeral expenses, including the cost of a funeral feast, in an amount not to exceed $1,000.
            (b) Necessary expenses in hearings before the Osage Agency involving the approval or disapproval of last wills and testaments.
            (c) Expenses necessary to preserve restricted property.

            § 117.27
            Custody of funds pending administration of estates.
            (a) Estates of Indians of less than one-half Indian blood and estates of Indians who had certificates of competency. Upon the death of an Indian of less than one-half Indian blood or an Indian who had a certificate of competency, the superintendent shall pay to the executor or administrator of the estate all moneys and securities, other than segregated trust funds to the credit of the Indian and all funds which accrue pending administration of the estate.
            (b) Estates of Indians of one-half or more Indian blood who did not have certificates of competency. Upon the death of an Indian of one-half or more Indian blood who did not have a certificate of competency at the time of his death, the following classes of funds, less any amount hypothecated for the payment of taxes as provided in § 117.2 shall be paid by the superintendent to the executor or administrator of the estate:
            (1) Allowance funds to the credit of the Indian.
            (2) Any quarterly payment authorized prior to the death of the Indian.
            (3) Interest on segregated trust funds and deposits computed to the date of death.
            (4) Rentals and income from restricted lands collected after the death of the Indian which were due and payable to the Indian prior to his death.
            Except as provided in § 117.28, the superintendent shall not pay to the executor or administrator any surplus funds to the credit of the Indian or any funds, other than those listed in paragraphs (b) (1), (2), (3) and (4) of this section which accrue pending administration of the estate.

            § 117.28
            Payment of claims against estates.
            The superintendent may disburse to the executor or administrator of the estate of a deceased Indian of one-half or more Indian blood who did not have a certificate of competency at the time of his death sufficient funds out of the estate to pay the following classes of claims approved by the court:
            (a) Debts authorized by the superintendent during the lifetime of the Indian.
            (b) Expenses incurred pending the qualifications of an executor or administrator under authority contained in § 117.26.
            (c) Expenses of administration, including court costs, premium on bond of executor or administrator, transcript fees and appraiser fees.
            (d) Living expenses incurred within 90 days immediately preceding the date of death of the Indian.
            (e) Allowance for reasonable living expenses each month for 12 months to a surviving spouse who is entitled to participate in the distribution of the estate and who is in need of such support.
            (f) Allowance for reasonable living expenses each month for 12 months for each child of the decedent under 21 years of age who is entitled to participate in the distribution of the estate and who is in need of such support.
            (g) Insurance premiums and license fees on restricted property.

            (h) Not to exceed $1,000 for the preservation and upkeep of restricted property including the services of a caretaker when necessary.

            (i) Debts incurred during the lifetime of the Indian but not authorized by the superintendent, if found by the Commissioner to be just and payable. The superintendent shall disburse no funds to an executor or administrator for the payment of the foregoing classes of claims unless the executor or administrator has no other funds in his hands available for the payment of such claims.
            [22 FR 10554, Dec. 24, 1957, as amended at 35 FR 10005, June 18, 1970. Redesignated at 47 FR 13327, Mar. 30, 1982]

            § 117.29
            Sale of improvements.
            The superintendent may approve the sale of improvements on restricted Indian lands when such improvements are appraised at not more than $500 and when the owner has submitted a written request that the sale be made and a statement that the improvements can no longer be used by him. The proceeds of all such sales shall be deposited to the credit of the Indian as surplus funds. Improvements consisting of buildings, etc., located on property within the Osage villages of Pawhuska, Hominy, and Grayhorse may, upon approval of the superintendent, be disposed of to other Osage Indians. The superintendent may disburse the surplus funds of the purchaser to consummate the transaction. Sale of such improvements to non-Indian or non-Osage Indians must be approved by the Commissioner.

            § 117.30
            Sale of personal property.
            The superintendent may approve the sale of restricted personal property other than livestock. The superintendent may also approve the sale of livestock when authorized so to do by special or general instructions from the Commissioner. The proceeds from the sale of personal property other than livestock shall be deposited to the credit of the Indian as surplus funds unless the surplus funds from which said property was purchased have been reimbursed from allowance funds, in which case the proceeds from such sale shall be disbursed as allowance funds. If partial reimbursement only has been made, such portion of the proceeds of sale as may be necessary to complete the reimbursable agreement shall be deposited to the credit of the Indian as surplus funds and the balance, if any, shall be disbursed as allowance funds. The proceeds from the sale of livestock shall be deposited in conformity with general or specific instructions from the Commissioner.

            § 117.31
            Removal of restrictions from personal property.
            The superintendent may relinquish title to personal property (other than livestock) held by the United States in trust for the Indian when to do so will enable the Indian to use the property as part payment in the purchase of other personal property and when the remainder of the purchase price is to be made from other than surplus funds of the Indian.

            § 117.32
            Funds of Indians of other tribes.
            The funds of restricted non-Osage Indians, both adults and minors, residing within the jurisdiction of the Osage Agency, derived from sources within the Osage Nation and collected through the Osage Agency, may be disbursed by the superintendent, subject to the condition that all payments to third persons, including taxes and insurance premiums, shall be made upon the written authorization of the individual whose funds are involved, if an adult, and upon the written authorization of the parent or guardian, if a minor. The funds of restricted non-Osage Indians who do not reside within the jurisdiction of the Osage Agency shall be transferred to the superintendent of the jurisdiction within which the Indian resides, to be disbursed under regulations of the receiving agency.

            § 117.33
            Signature of illiterates.

            An Indian who cannot write shall be required to endorse checks payable to his order and sign receipts or other documents by making an imprint of the ball of the right thumb (or the left, if he has lost his right) after his name. This imprint shall be clear and distinct, showing the central whorl and striations and witnessed by two reputable persons whose addresses shall be given opposite or following their names. An Indian may sign by marking “X” before two witnesses where he is unable to attach his thumb mark for physical reasons.

            § 117.34
            Financial status of Indians confidential.
            The financial status of Indians shall be regarded as confidential and shall not be disclosed except to the owner of the account or his authorized agent, unless authorized in advance by the Commissioner.

            § 117.35
            Appeals.
            Any decision by the superintendent may be appealed to the area director, any decision by the area director may be appealed to the Commissioner, and any decision by the Commissioner may be appealed to the Secretary.

          Pt. 122
          PART 122—MANAGEMENT OF OSAGE JUDGMENT FUNDS FOR EDUCATION

            Sec.
            122.1
            Purpose and scope.
            122.2
            Definitions.
            122.3
            Information collection.
            122.4
            Establishment of the Osage Tribal Education Committee.
            122.5
            Selection/nomination process for committee members.
            122.6
            Duties of the Osage Tribal Education Committee.
            122.7
            Budget.
            122.8
            Administrative costs for management of the fund.
            122.9
            Annual report.
            122.10
            Appeal.
            122.11
            Applicability.

            Authority:
            86 Stat. 1295, 98 Stat. 3103 (25 U.S.C. 331 note).

            Source:
            54 FR 34155, Aug. 18, 1989, unless otherwise noted.

            § 122.1
            Purpose and scope.
            (a) The purpose of this part is to set forth procedures and guidelines to govern the use of authorized funds in education programs for the benefit of Osage Tribal members, along with application requirements and procedures used by those eligible persons.
            (b) The Osage Tribe by act of Congress, October 27, 1972 (25 U.S.C. 883, 86 Stat. 12950, as amended by Pub. L. 98-605) on October 30, 1984, provides that $1 million, together with other funds which revert to the Osage Tribe, may be advanced, expended, invested, or reinvested for the purpose of financing an education program of benefit to the Osage Tribe of Indians of Oklahoma, with said program to be administered as authorized by the Secretary of the Interior.

            § 122.2
            Definitions.

              Act means Osage Tribe by Act of Congress, October 27, 1972 (25 U.S.C. 883, 86 Stat. 1295), as amended by Pub. L. 98-605.

              Allottee means a person whose name appears on the roll of Osage Tribe of Indians approved by the Secretary of the Interior on April 11, 1908, pursuant to the Act of June 28, 1906 (34 Stat. 539).

              Assistant Secretary means the Assistant Secretary—Indian Affairs.

              Osage Tribal Education Committee means the committee selected to administer the provisions of this part as specified by § 122.6.

              Reverted funds means the unpaid portions of the per capita distribution fund, as provided by the Act, which were not distributed because the funds were:
            (1) Unclaimed within the period specified by the Act; or
            (2) For an amount totaling less than $20 due an individual from one or more shares of one or more Osage allottees.

              Secretary means the Secretary of the Department of the Interior or his/her authorized representative.

            § 122.3
            Information collection.

            (a) The information collection requirements contained in §§ 122.6 and 122.9 have been approved by the Office of Management and Budget under U.S.C. 3501 et seq. and assigned clearance numbers 1076-0098 and 1076-0106, respectively. The information collected in § 122.6 is used to determine the eligibility of Osage Indian student applicants for educational assistance grants. The information collected in § 122.9 provides summary review for program evaluation and program planning. Response to the information collections is required to obtain a benefit in accordance with 25 U.S.C. 883.

            (b) Public reporting burden for this information collection is estimated to average 30 minutes per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing the burden, to the Bureau of Indian Affairs, Information Collection Clearance Officer, Room 337 SIB, 18th & C Streets, NW., Washington, DC 20240; and the Office of Management and Budget, Paperwork Reduction Project (1076-0106), Washington DC 20503.

            § 122.4
            Establishment of the Osage Tribal Education Committee.
            (a) The Osage Tribe, to maintain its right of Tribal autonomy, shall, at the direction of the Bureau of Indian Affairs, establish the Osage Tribal Education Committee (OTEC) to fulfill the responsibilities and provisions of this part as set out in § 122.6.
            (b) This committee shall be composed of seven (7) members. Five (5) of the members shall be of Osage blood or descendents of Osage, and two (2) from the education staff of the Bureau of Indian Affairs.
            (1) Of the five Osage members, at least three shall be legal residents and/or live within a 20-mile radius of one of the three Osage Indian villages. Of these, at least one member shall reside within the specified radius of the Pawhuska Indian village; at least one member shall reside within the specified radius of the Hominy Indian village; and at least one member shall reside within the specified radius of the Greyhorse Indian village.
            (2) The two remaining Osage committee members will be members at large.

            § 122.5
            Selection/nomination process for committee members.
            (a) Selection of the five (5) OTEC members shall be made by the Assistant Secretary in accordance with the following:
            (1) Any adult person of Osage Indian blood who is an allottee or a descendant of an allottee is eligible to serve on the Osage Tribal Education Committee.
            (2) Nominees for committee membership shall include a brief statement of interest and qualifications for serving on the committee.
            (b) Nominations may be made by any Osage organization, including the Osage village communities of Greyhorse, Hominy and Pawhuska, by requesting its candidates to follow procedures outlined in paragraph (a)(2) of this section.
            (c) Nominations shall be delivered by registered mail to the following address: Osage Tribal Education Committee, c/o Area Education Programs Administrator, Bureau of Indian Affairs, Muskogee Area Office—Room 152, 5th & W, Okmulgee, Muskogee, Oklahoma 74401.
            (d) A Nominee Selection Committee composed of OTEC members so designated by the Assistant Secretary will review all nominations. Upon completion of this process, the Nominee Selection Committee will forward its recommendations for final consideration to the Assistant Secretary.
            (e) Each member shall be sworn in for a four year term. At the discretion of the Assistant Secretary, members may succeed themselves with a recommendation for reappointment from the Nominee Selection Committee.
            (f) The Assistant Secretary may, until a vacancy is filled, appoint an individual to serve for a temporary period not to exceed 120 days.

            § 122.6
            Duties of the Osage Tribal Education Committee.
            (a) For the purpose of providing financial assistance to eligible Osage applicants for educational assistance, the Osage Tribal Education Committee shall maintain an office and retain all official records at the Bureau of Indian Affairs offices located at the Federal Building, Muskogee, Oklahoma.
            (b) The Osage Tribal Education Committee shall be responsible for implementing an overall plan of operation consistent with the policy of Indian self-determination which incorporates a systematic sequential process whereby all student applications for financial aid are rated and ranked simultaneously to enable a fair distribution of available funds.

            (1) All applicants shall be rated by a point system appropriate to applications for education assistance. After all applications are rated, the Osage Tribal Education Committee will rank the applications in a descending order for award purposes. No awards shall be made until all applications are rated against the point system.
            (2) Monetary awards shall be for fixed amounts as determined by the Osage Tribal Education Committee. The fixed amounts shall be itemized in the committee's annual budgetary request, and the monetary award amounts shall be consistent with the fixed amounts itemized in the approved budget.
            (3) Payment of the monetary awards shall be made directly to the student, with half of the amount payable on or before September 15 and the second half payable on or before February 15, provided the student is successfully enrolled in an accredited institution of higher education and meeting the institution's requirement for passing work.
            (4) No student will be funded beyond 10 semesters or five academic years, not to include summer sessions, nor shall any student with a baccalaureate degree be funded for an additional undergraduate degree.

            § 122.7
            Budget.
            (a) By August 1 of each year, the Osage Tribal Education Committee will submit a proposed budget to the Assistant Secretary or to his/her designated representative for formal approval. Unless the Assistant Secretary or his/her designated representative informs the committee in writing of budget restrictions by September 1, the proposed budget is considered to be accepted.
            (b) The investment principal, composed of the one million dollars appropriated by the Act and reverted funds, must be invested in a federally insured banking or savings institution or invested in obligations of the Federal Government. There are no provisions in this part which shall limit the right of the Osage Tribal Education Committee to withdraw interest earned from the investment principal; however, expenditures shall be made against only the interest generated from investment principal and reverted funds.
            (c) All funds deposited will accumulate interest at a rate not less than that generally available for similar funds deposited at the same banking or savings institution or invested in the same obligations of the United States Government for the same period of time.

            § 122.8
            Administrative costs for management of the fund.
            Funds available for expenditures may be used by the Osage Tribal Education Committee in the performance of its duties and responsibilities. Recordkeeping is required and proposed expenditures are to be attached with the August 1 proposed annual budget to the Assistant Secretary or his/her designated representative.

            § 122.9
            Annual report.
            The Osage Tribal Education Committee shall submit an annual report on OMB approved Form 1076-0106, Higher Education Annual Report, to the Assistant Secretary or his/her designated representative on or before November 1, for the preceding 12 month period.

            § 122.10
            Appeal.
            The procedure for appealing any decision regarding the awarding of funds under this part shall be made in accordance with 25 CFR part 2, Appeals from Administrative Action.

            § 122.11
            Applicability.
            These regulations shall cease upon determination of the legal and appropriate body to administer the fund and upon the establishment of succeeding regulations.

          Pt. 124
          PART 124—DEPOSITS OF PROCEEDS FROM LANDS WITHDRAWN FOR NATIVE SELECTION

            Sec.
            124.1
            What is the purpose of this part?
            124.2
            Who should an agency or the State of Alaska contact for information?

            Authority:
            43 U.S.C. 1601 et seq.; Pub. L. 92-203, 85 Stat. 688; 25 U.S.C. 4001 et seq.; Pub L. 103-402, 108 Stat. 4239.

            Source:
            70 FR 40661, July 14, 2005, unless otherwise noted.

            § 124.1
            What is the purpose of this part?
            This part provides contact information on depositing proceeds from contracts, leases, permits, rights-of-way, or easements pertaining to lands withdrawn for Native selection under the Alaska Native Claims Settlement Act. All Federal agencies and the State of Alaska must use this part when making deposits of this type.

            § 124.2
            Who should an agency or the State of Alaska contact for information?
            When a Federal agency or the State of Alaska receives proceeds covered by this part, it must deposit the proceeds to the credit of the United States Department of the Interior, Office of the Special Trustee for American Indians. For further information including depositing instructions, contact: Office of the Special Trustee for American Indians, Attention: Division of Trust Funds Accounting, 4400 Masthead Street NE., Albuquerque, New Mexico 87109.

          Pt. 134
          PART 134—PARTIAL PAYMENT CONSTRUCTION CHARGES ON INDIAN IRRIGATION PROJECTS

            Sec.
            134.1
            Partial reimbursement of irrigation charges; 5 percent per annum of cost of system, June 30, 1920.
            134.2
            Landowners financially unable to pay.
            134.3
            Period for payments extended.
            134.4
            Annual payment reduced.
            134.4a
            Assessment and collection of additional construction costs.
            134.5
            Payments to disbursing officer.
            134.6
            “Owner” defined.
            134.7
            Modifications.

            Authority:
            Secs. 1, 3, 36 Stat. 270, 272, as amended; 25 U.S.C. 385. Interpret or apply sec. 1, 41 Stat. 409; 25 U.S.C. 386.

            Source:
            22 FR 10643, Dec. 24, 1957, unless otherwise noted. Redesignated at 47 FR 13327, Mar. 30, 1982.

            § 134.1
            Partial reimbursement of irrigation charges; 5 percent per annum of cost of system, June 30, 1920.
            In pursuance of the act of February 14, 1920 (41 Stat. 409; 25 U.S.C. 386), regulations governing partial payment of construction charges on Indian irrigation projects, with the exception of certain ones mentioned therein, where approved by the Department June 21, 1920, and require that each owner of irrigable land under any irrigation system constructed for the benefit of Indians under provisions of law requiring reimbursement of the cost of such system and to which land, water for irrigation purposes can be delivered from such system, shall pay, on or before November 15, 1920, a sum equal to 5 percent of the per acre cost, as of June 30, 1920, of the construction of the system under which such land is situated. The per acre cost of a given system as of June 30, 1920, shall be determined by dividing the total amount expended for construction purposes on such system up to that day by the total area of land to which water for irrigation purposes can be delivered on that date; and on November 15 of each year following the year 1920, until further notice, the land owners, as therein prescribed, shall pay 5 percent of the per acre construction cost as of June 30, of the current year, such per acre cost to be determined by dividing the cost of the system to June 30 of that year by the total area of land to which water for irrigation purposes can be delivered from the system on that date. Provision is contained that no payments shall be required under the regulations in behalf of lands still in process of allotment or prior to the issuance of the first or trust patent therefor, nor for lands reserved for school, agency, or other administrative purposes where the legal title still remains in the United States.

            § 134.2
            Landowners financially unable to pay.
            Considerable difficulty has been encountered in collecting charges under the regulations in this part owing to the fact that Indians have been financially unable to pay the charges, the result being that the construction charges have accrued against the lands and in cases where the land is sold for the benefit of the allottee or his heirs under the regulations, the purchaser is to pay the accrued and future irrigation charges which make it difficult in some instances, to sell the land at as favorable terms as might otherwise be secured.

            § 134.3
            Period for payments extended.
            Furthermore, in recent legislation dealing with specific projects in the Bureau and also all reclamation projects the policy has been to extend the payment of such charges over a longer period of years.

            § 134.4
            Annual payment reduced.
            In view of these conditions the regulations governing this matter are hereby modified so as to distribute the unaccrued installments over a period of time so that 21/2 percent of the total amount yet due shall be due and payable on November 15 of each year until further notice. You shall accordingly ascertain the per acre cost after deducting the amount of the accrued charges and take 21/2 percent of that amount and a like sum each year so that the amount of the annual installments will be the same each year. Superintendents are obligated to submit all proposed lists of sales involving allotments containing irrigable allotments to the project or supervising engineer for checking, as to the irrigable acreage and amounts of unpaid construction, operation, and maintenance charges against such allotments. Each sale forwarded to the Bureau for action shall be accompanied by contract executed on Form 5-462b where irrigable acreage is involved and after approval thereof a copy of contract on said form shall be sent to the project engineer for his records and the charges paid by the purchaser shall be turned over to the disbursing agent for credit and deposit as instructed in the next paragraph. The regulations in this part shall not apply to lands in the Wapato project, on the Yakima Indian Reservation, nor to the irrigation projects on the Blackfeet, Fort Peck, Flathead, and Crow Reservations, Montana, for which special regulations have been issued nor to the Fort Hall Reservation, Idaho, or the San Carlos project, Arizona. 1

                1 The special regulations for Wapato, Fort Peck, and Flathead, were not codified. Operations of the Blackfeet project were discontinued by the Bureau, July 20, 1938, effective September 30, 1933.

              Cross References:
              For special regulations applying to San Carlos project, see part 137 of this chapter. For further information concerning Form 5-462b, see part 159 of this chapter.

            § 134.4a
            Assessment and collection of additional construction costs.
            (a) Upon the completion of the construction of an Indian irrigation project, or unit thereof, subsequent to the determination of the partial per acre construction assessment rate which was fixed prior to July 1, 1957, pursuant to § 134.4 the Secretary of the Interior or his authorized representative shall determine such additional construction cost and distribute that cost on a per acre basis against all of the irrigable lands of the project, or unit thereof, and 1/40th of such per acre additional construction cost thus determined shall be assessed and collected annually from the non-Indian landowner of the project, or unit, thereof. The first installment shall be due and payable on November 15 of the year following the completion of such additional construction work or, if such additional construction work on the project, or unit thereof, has been completed prior to July 1, 1957, and the per acre annual rate determined, the first installment of the additional construction cost to be repaid by such non-Indian landowners shall be due and payable on November 15, 1958. This annual per acre rate shall be in addition to, and run concurrently with, the per acre construction rate assessed annually under § 134.4.

            (b) Project lands in Indian ownership are not subject to assessment for their proportionate share of the per acre construction cost of the project, or unit thereof, until after the Indian title to the land has been extinguished. At that time the total annual per acre assessment rate against non-Indian lands of the project, or unit thereof, shall be assessed against the former Indian lands for each and every acre of irrigable land to which water can be delivered through the project works, beginning on November 15 of the year following the extinguishment of the Indian title to the land and on November 15 of each year thereafter over a forty year period. In cases where the Indian title to project land was extinguished prior to July 1, 1957, the assessment rate shall be due and payable on November 15, 1958.

            § 134.5
            Payments to disbursing officer.
            Payments under this part shall be made to the disbursing officer for the supervising engineer of the Indian Irrigation Service having jurisdiction over the irrigation system under which the land for which payment is made may lie. The sum so collected will then, after proper credit has been made to the land for which collected, be deposited in the Treasury of the United States to the credit of the respective funds used in constructing irrigation systems toward which reimbursement shall have been made.

            § 134.6
            “Owner” defined.
            The word “owner” as used in this part shall be construed to include any person, Indian or white, or any firm, partnership, corporation, association, or other organization to whom title to the land capable of irrigation, as provided in the act of February 14, 1920 (41 Stat. 409; 25 U.S.C. 386), has passed, either by fee or trust patent, or otherwise.

            § 134.7
            Modifications.
            The act of July 1, 1932 (47 Stat. 564; 25 U.S.C. 386a), cancelled all irrigation assessments for construction costs against lands in Indian ownership which were unpaid at that date and deferred all future assessments for construction costs until the Indian title to the land shall have been extinguished.

          Pt. 135
          PART 135—CONSTRUCTION ASSESSMENTS, CROW INDIAN IRRIGATION PROJECT

              Subpart A—Charges Assessed Against Irrigation District Lands
              Sec.
              135.1
              Contracts.
              135.2
              Annual rate of assessments.
              135.3
              Annual assessments.
              135.4
              Time of payment.
              135.5
              Penalty.
              135.6
              Refusal of water delivery.

              Subpart B—Charges Assessed Against Non-Indian Lands Not Included in an Irrigation District
              135.20
              Private contract lands; assessments.
              135.21
              Time of payment.
              135.22
              Penalty.
              135.23
              Refusal of water delivery.

            Authority:
            Sec. 15, 60 Stat. 338.

            Source:
            22 FR 10644, Dec. 24, 1957, unless otherwise noted. Redesignated at 47 FR 13327, Mar. 30, 1982.

            Subpart A—Charges Assessed Against Irrigation District Lands

              § 135.1
              Contracts.
              Under provisions of the act of Congress approved June 28, 1946 (60 Stat. 333-338), contracts were executed June 28, 1951, by the United States with the Lower Little Horn and Lodge Grass Irrigation District and the Upper Little Horn Irrigation District providing for the payment, over a period of 40 years, by each of the Districts of its respective share of the sum of $210,726 expended for the construction of the Willow Creek storage works on account of non-Indian lands within the Districts entitled to share in the storage water, directly or by substitution.

              § 135.2
              Annual rate of assessments.

              Within the Lower Little Horn and Lodge Grass Irrigation District there are 3,196.8 acres for which the District is obligated by contract to pay its proper share of the total construction costs. Within the Upper Little Horn Irrigation District there are 1,554.7 acres for which the District is obligated by contract to pay its proper share of the total construction costs. There are 3,237.6 acres, more or less, covered by contracts with private landowners, obligating such owners to pay their proper share of such construction costs. The total per acre charge against all such lands is $26.38. This amounts to an annual per acre rate of $0.6595. For the purpose of this notice the annual per acre rate is hereby fixed at $0.66. This annual per acre rate of assessment will continue for a 40-year period within which the total amount of construction costs of $210,726 is to be repaid without interest. The amount of each annual installment chargeable against each of the Districts for the acreage covered by their respective contracts shall be determined by multiplying the total acreage, under each contract entitled to Willow Creek storage rights, either directly or by subsituation, by the per acre annual rate.

              § 135.3
              Annual assessments.
              Notice is hereby given of an annual assessment of $2,108.05 to be repaid by the Lower Little Horn and Lodge Grass Irrigation District for the 3,196.8 acres of irrigable land of the District, and an annual assessment of $1,025.06 to be repaid by the Upper Little Horn Irrigation District for the 1,554.7 acres of irrigable land of the District. Against the amounts due annually by the Districts under this notice, there shall be allowed any credits due under section 6 of the act of June 28, 1946. Credits due on behalf of any land shall be reflected by the respective Districts when placing against such land the annual assessment on the tax rolls.

              § 135.4
              Time of payment.
              Annual assessments shall be paid by the Districts to the United States, one-half thereof on or before February 1 and one-half thereof on or before July 1 following, of each year commencing with the calendar year 1952.

              § 135.5
              Penalty.
              To all assessments not paid on the due date, there shall be added a penalty of one-half of one percent per month or fraction thereof, from the due date so long as the delinquency continues.

              § 135.6
              Refusal of water delivery.
              The right is reserved to the United States to refuse the delivery of water to each of the said Irrigation Districts in the event of default in the payment of assessments, including penalties on account of delinquencies.

            Subpart B—Charges Assessed Against Non-Indian Lands Not Included in an Irrigation District

              § 135.20
              Private contract lands; assessments.
              In addition to 4,751.5 acres of non-Indian land included within the two irrigation Districts dealt with in subpart A, there are 3,237.6 acres of land, more or less, in non-Indian ownership under private ditches, covered by repayment contracts executed pursuant to the act of June 28, 1946 (60 Stat. 333-338), obligating such owners to pay their proper share of such construction costs. The total per acre charge against all such lands is $26.38. This amounts to an annual per acre rate of $0.6595. For the purposes of this notice the annual per acre rate is hereby fixed at $0.66. This annual rate of assessment will continue for a 40-year period within which the total amount of construction cost of $210,726 is to be repaid without interest. The amount of each annual installment chargeable against the lands covered by each of the several contracts with individual landowners whose lands are served under private ditches, shall be determined by multiplying the total acreage, under each contract entitled to Willow Creek storage rights, either directly or by substitution, by the per acre annual rate. Against the amounts due annually by the individual landowners whose lands are served by private ditches, under this notice there shall be allowed any credits due under section 6 of the act of June 28, 1946. Credits due on behalf of any land shall be reflected in any statement submitted to the landowners.

              § 135.21
              Time of payment.
              The amount of each annual installment, payable under the private landowner contracts, determined as provided in this part shall be paid by the landowners to the United States, on or before November 15 of each year commencing with the calendar year 1951.

              § 135.22
              Penalty.

              To all assessments not paid on the due date there shall be added a penalty of one-half of one percent per month or fraction thereof, from the due date so long as the delinquency continues.

              § 135.23
              Refusal of water delivery.
              The right is reserved to refuse the delivery of water to any landowner in the event of default in the payment of assessments, including penalties on account of delinquencies.

          Pt. 136
          PART 136—FORT HALL INDIAN IRRIGATION PROJECT, IDAHO

            Sec.
            136.1
            Repayment contracts.
            136.2
            Construction costs.
            136.3
            Repayment of construction costs.

            Authority:
            Sec. 9, 46 Stat. 1063.

            Source:
            22 FR 10645, Dec. 24, 1957, unless otherwise noted. Redesignated at 47 FR 13327, Mar. 30, 1982.

            § 136.1
            Repayment contracts.
            A rehabilitation program was established on the Fort Hall Unit of the Fort Hall Project in 1936. Based upon the estimated construction costs, contracts were signed by all non-Indian landowners within the project, including such landowners within the Little Indian Unit, now a part of the Fort Hall Unit. Under the terms of their contracts, the landowners agreed to repay to the Government their pro rata share, on an acreage basis, of all expenditures for construction and other necessary improvements for carrying out the approved program, payments not to exceed $7.50 per acre, based upon an estimated expenditure of $450,000.00 for a project then considered as covering approximately 60,000 acres.

            § 136.2
            Construction costs.
            The program of rehabilitation has now been completed at a cost of $419,186.52. This amount, chargeable on an equal per acre basis against 60,000 acres, amounts to a rate of $6.986 per acre, which rate is hereby determined to be the per acre cost to be repaid to the United States under the 1936 contracts.

            § 136.3
            Repayment of construction costs.
            Under the terms of the contracts, the landowners agreed to repay the construction cost in forty (40) equal annual installments. Therefore, the annual per acre installment is hereby fixed at seventeen and one-half cents (171/2 cents) per acre, due and payable on December 1st of each year, the first payment being due on December 1, 1955. Under section 4 of the repayment contracts of the landowners and the act of March 10, 1928 (45 Stat. 210), the charges remain a lien against the lands until paid.

          Pt. 137
          PART 137—REIMBURSEMENT OF CONSTRUCTION COSTS, SAN CARLOS INDIAN IRRIGATION PROJECT, ARIZONA

            Sec.
            137.1
            Water supply.
            137.2
            Availability of water.
            137.3
            Construction charges.
            137.4
            Future charges.
            137.5
            Construction costs limited.
            137.6
            Power development.
            137.7
            Private ownership defined.
            137.8
            Indian lands excluded.

            Authority:
            Sec. 5, 43 Stat. 476.

            Source:
            22 FR 10645, Dec. 24, 1957, unless otherwise noted. Redesignated at 47 FR 13327, Mar. 30, 1982.

            § 137.1
            Water supply.
            The engineering report dealt with in section 1 of the act of June 7, 1924 (43 Stat. 475) and other available records show that the storage capacity of the San Carlos reservoir created by the Coolidge Dam and the water supply therefor over a period of years will provide for the irrigation of only 80,000 acres of lands in Indian and public or private ownership within the San Carlos irrigation project, the balance of the water supply needed for the additional 20,000 acres of the project to be provided for by recaptured and return flow water and by means of pumping the underground supply. The cost of providing the proposed supply and of operating the works for this latter acreage to be equally distributed over the entire 100,000 acres of the project regardless of where the works are placed and operated.

            § 137.2
            Availability of water.
            Pursuant to section 3 of the act of June 7, 1924 (43 Stat. 475), requiring the Secretary of the Interior by public notice to announce when water is actually available for lands in private ownership under the project and the amount of the construction charges per irrigable acre against the same which charges shall be payable in annual installments as provided for therein, this public notice, of which § 137.1 is made a part hereof, is hereby given:
            The date when a reasonable water supply is actually available for lands in private ownership under the San Carlos irrigation project is hereby declared to be the 1st day of December 1932.

            § 137.3
            Construction charges.
            Each acre of land in private ownership of said project is hereby charged with $95.25 of construction cost assessable thereto at the date hereof (Dec. 1, 1932), which sum is based upon 50,000 acres of such privately owned lands, making a total charge or assessment due from the owners thereof of $4,762,250 on this date (Dec. 1, 1932), excluding the cost of operation and maintenance for the calendar year of 1933 which may be carried into construction cost as provided for by section 3 of the act of June 7, 1924 (43 Stat. 476), and also excluding interest at the rate of 4 percent which is charged against such lands by said act. Of the 50,000 acres constituting the lands in private ownership within the said project only 46,107.49 acres have at this date (Dec. 1, 1932) actually been designated as coming within the project. Should this present designated area be not increased within a reasonable time herefrom and prior to the due date of the first installment of the charge fixed in this section, namely, on December 1, 1935, so as to bring the total designated area up to the 50,000 acres, the per acre charge fixed in this section shall be proportionately increased against the then designated area so as to assure reimbursement of the total indebtedness due the Government by the owners of the lands in private ownership from the lesser designated acreage.

            § 137.4
            Future charges.
            The payment of said construction cost and costs of future operation and maintenance of said project as provided for in said section 3 of the act of June 7, 1924 (43 Stat. 476), as supplemented or amended and such contingent project liabilities which may be incurred in accordance with the provisions of said repayment contract shall be made in accordance with the provisions of said act of June 7, 1924, as supplemented or amended and the repayment contract by and between the San Carlos irrigation and drainage district and the Secretary of the Interior bearing date of June 8, 1931; the said construction cost incurred subsequent to this public notice assessable against the lands in private ownership and costs of operation and maintenance assessed against such privately owned lands within the project for the first year after this public notice to be included in the construction cost and such contingent project liabilities which may be incurred in accordance with provisions of the repayment contract shall also be repaid to the Government pursuant to the terms of said act of June 7, 1924, as supplemented or amended, and the repayment contract and this public notice.

            § 137.5
            Construction costs limited.
            The repayment contract 1
               with the San Carlos irrigation and drainage district, page 13 thereof, contains the following:

                1 Contract available at the Bureau of Indian Affairs, Washington, D.C.

              In accordance with the foregoing the costs of the San Carlos project as fixed by the public notice to be issued as aforesaid, unless further sums shall be agreed to by the Secretary of the Interior and the district after the execution of this instrument, may amount to but shall not exceed the sum of $9,556,313.77, except that said total may be exceeded by the inclusion of any sums expended to safeguard the project as hereinabove provided for, and any sums expended on account of contingent liabilities as in the next paragraph hereof provided.

              The foregoing and subsequent statements of project costs, the district's shares of which are to be repaid hereunder, unless otherwise provided by Congress more favorably to the lands of the project, may be increased by the addition of sums not now fixed as project charges but which possibly constitute contingent project liabilities incurred after the date of the San Carlos Act of June 7, 1924 (43 Stat. 476), or incurred on account of the Florence-casa Grande project, and so may become project charges by the judgment of courts of competent jurisdiction or of other proper authority.
              The limitations therein fixed has approximately been reached, there remaining but $32,815.02 yet to be expended on project works before reaching that limitation. Upon the expenditure of this additional sum there shall be no further expenditures of funds for construction, operation and maintenance of the San Carlos project so far as the private lands are concerned until the San Carlos irrigation and drainage district shall, through appropriate action, authorize pursuant to the terms of the said repayment contract such additional expenditures. This limitation does not apply to project expenditures for the extension of the distributing and pumping system regardless of where they may arise. This class of expenditures being excepted from the limitation on expenditures contained in the said repayment contract by section 14, page 10, thereof, which section is known as the “Equalization of Expenditures.”

            § 137.6
            Power development.
            The cost of the power development at the Coolidge Dam is hereby fixed at $735,000. The net revenues derived from the operation of this power development shall be disposed of as required by the terms and conditions of the act of March 7, 1928 (45 Stat. 210) as supplemented or amended.

            § 137.7
            Private ownership defined.
            The term “private ownership” used in this public notice includes all lands of the San Carlos irrigation project that have or may be designated by the Secretary of the Interior that are situated outside of the boundaries of the Gila River Indian Reservation.

            § 137.8
            Indian lands excluded.
            This public notice, with the exception of that part dealing with payment in advance each year of operation and maintenance charges against lands in Indian ownership operated under lease, does not apply in so far as payments are concerned to Indian lands within the project. The act of July 1, 1932 (47 Stat. 564; 25 U.S.C. 386a) defers the collection of construction costs from Indian owned lands so long as the title to such lands remains in the Indian ownership.

          Pt. 138
          PART 138—REIMBURSEMENT OF CONSTRUCTION COSTS, AHTANUM UNIT, WAPATO INDIAN IRRIGATION PROJECT, WASHINGTON

            Sec.
            138.1
            Construction costs and assessable acreage.
            138.2
            Repayment of construction costs.
            138.3
            Payments.
            138.4
            Deferment of assessments on lands remaining in Indian ownership.
            138.5
            Assessments after the Indian title has been extinguished.

            Authority:
            Secs. 1, 3, 36 Stat. 270, 272, as amended; 25 U.S.C. 385.

            Source:
            22 FR 10646, Dec. 24, 1957, unless otherwise noted. Redesignated at 47 FR 13327, Mar. 30, 1982.

            § 138.1
            Construction costs and assessable acreage.
            The construction program has been completed on the Ahtanum Unit of the Wapato Indian Irrigation Project and the construction costs have been established as $79,833.64. The area benefited by this development has been established at 4,765.2 acres. Under the requirements of the acts of February 14, 1920 (41 Stat. 409) and March 7, 1928 (45 Stat. 210), these costs are to be repaid to the United States Treasury by the owners of the lands benefited.

            § 138.2
            Repayment of construction costs.

            The cost per acre under § 138.1 is, therefore, established at $16.7535. Under the provisions of the acts of February 14, 1920 (41 Stat. 409) and March 7, 1928 (45 Stat. 210) is based on forty equal annual payments, the annual per acre assessment is hereby fixed at $0.42 per acre for the year 1957 and each succeeding year until the entire cost for each tract shall have been repaid to the United States Treasury. On those tracts where payments have been made pursuant to part 134 of this chapter, annual assessments beginning with the year 1957 at the rate of $0.42 per acre will be made until the entire cost of $16.7535 per acre shall have been repaid to the United States Treasury. Landowners may pay at any time the total of the then remaining indebtedness. Under the act of March 10, 1928 (45 Stat. 210) the unpaid charges stand as a lien against the lands until paid.
            [22 FR 10646, Dec. 24, 1957. Redesignated at 47 FR 13327, Mar. 30, 1982; 48 FR 13414, Mar. 31, 1983]

            § 138.3
            Payments.
            Payments are due on December 31 of each year and shall be made to the official in charge of collections for the project.

            § 138.4
            Deferment of assessments on lands remaining in Indian ownership.
            In conformity with the act of July 1, 1932 (47 Stat. 564); 25 U.S.C. 386(a) no assessment shall be made on behalf of construction costs against Indian-owned land within the project until the Indian title thereto has been extinguished.

            § 138.5
            Assessments after the Indian title has been extinguished.
            Indian-owned lands passing to non-Indian ownership shall be assessed for construction costs and the first assessment shall be due on December 31 of the year that Indian title is extinguished. Assessments against this land will be at the annual rate of $0.42 per acre and shall be due as provided in § 138.3, and payable promptly thereafter until the total construction cost of $16.7535 per acre chargeable against the land has been paid in full.

          Pt. 139
          PART 139—REIMBURSEMENT OF CONSTRUCTION COSTS, WAPATO-SATUS UNIT, WAPATO INDIAN IRRIGATION PROJECT, WASHINGTON

            Sec.
            139.1
            Construction costs and assessable acreage.
            139.2
            Repayment of construction costs.
            139.3
            Payments.
            139.4
            Deferment of assessments on lands remaining in Indian ownership.
            139.5
            Assessments after the Indian title has been extinguished.

            Authority:
            Sec. 1, 41 Stat. 409, 45 Stat. 210; 25 U.S.C. 386, 387.

            Source:
            28 FR 6536, June 26, 1963, unless otherwise noted. Redesignated at 47 FR 13327, Mar. 30, 1982.

            § 139.1
            Construction costs and assessable acreage.
            The construction program has been completed on the Wapato-Satus Unit of the Wapato Indian Irrigation Project, and the construction costs have been established by Designation Report dated August 1962 as $7,903,823.12 for the project and $1,499,073.62 for the “B” lands share of the construction costs in the Bureau of Reclamation reservoirs on the Yakima River. The area benefited by this development has been established at 136,559.59 acres divided into 79,025.68 acres of “A” land and 57,533.91 acres of “B” land. Under the requirements of the acts of February 14, 1920 (41 Stat. 409), and March 7, 1928 (45 Stat. 210), these costs are to be repaid to the U.S. Treasury by the owners of the lands benefited.

            § 139.2
            Repayment of construction costs.
            The cost per acre of the construction under § 139.1 is, therefore, calculated at $57.8782 for “A” lands and $83.9337 for “B” lands in non-Indian ownership as established by Designation Report dated August 1962. Under the provisions of the acts cited in § 139.1 the annual per acre assessment for forty equal annual payments, is hereby fixed at $1.45 per acre for “A” lands and $2.10 per acre for “B” lands for the year 1962 and each succeeding year, until the entire cost for each tract shall have been repaid to the U.S. Treasury. On those tracts where payments have been made pursuant to uncodified special regulations, annual assessments beginning with the year 1962 at the rate of $1.45 per acre for “A” lands and $2.10 per acre for “B” lands will be made until the entire cost of $57.8782 per acre for “A” lands and $83.9337 per acre for “B” lands shall have been repaid to the U.S. Treasury. Landowners may pay at any time the total of the then remaining indebtedness. Under the act of March 10, 1928 (45 Stat. 210), the unpaid charges stand as a lien against the lands until paid.

            § 139.3
            Payments.
            Payments are due on December 31 of each year and shall be made to the official in charge of collections for the project.

            § 139.4
            Deferment of assessments on lands remaining in Indian ownership.
            In conformity with the act of July 1, 1932 (47 Stat. 564; U.S.C. 386(a)), no assessment shall be made on behalf of construction costs against Indian-owned land within the project until the Indian title thereto has been extinguished.

            § 139.5
            Assessments after the Indian title has been extinguished.
            Indian-owned lands passing to non-Indian ownership shall be assessed for construction costs and the first assessment shall be due on December 31 of the year that the Indian title is extinguished. The construction costs against this land will be established as provided by section 5 of the act of September 26, 1961 (75 Stat. 680). The annual per acre assessment rate will be determined by dividing the established construction cost per acre into forty equal payments. “B” lands will also be assessed for reservoir construction costs in the annual per-acre rate as established in the Designation Report dated August 1962. Assessments against this land will continue until the entire established construction costs shall have been repaid to the U.S. Treasury. Landowners may pay at any time the total of the then remaining indebtedness. Under the act of March 10, 1928 (45 Stat. 210), the unpaid charges stand as a lien against the lands until paid.

          Pt. 140
          PART 140—LICENSED INDIAN TRADERS

            Sec.
            140.1
            Sole power to appoint.
            140.2
            Presidential prohibition.
            140.3
            Forfeiture of goods.
            140.5
            Bureau of Indian Affairs employees not to contract or trade with Indians except in certain cases.
            140.9
            Application for license.
            140.11
            License period.
            140.12
            License renewal.
            140.13
            Power to close unlicensed stores.
            140.14
            Trade limited to specified premises.
            140.15
            License applicable for trading only by original licensee.
            140.16
            Trade in annuities or gratuities prohibited.
            140.17
            Tobacco sales to minors.
            140.18
            Intoxicating liquors.
            140.19
            Drugs.
            140.21
            Gambling.
            140.22
            Inspection of traders' prices.
            140.23
            Credit at trader's risk.
            140.24
            Cash payments only to Indians.
            140.25
            Trade in antiquities prohibited.
            140.26
            Infectious plants.

            Authority:
            Sec. 5, 19 Stat. 200, sec. 1, 31 Stat. 1066 as amended; 25 U.S.C. 261, 262; 94 Stat. 544, 18 U.S.C. 437; 25 U.S.C. 2 and 9; 5 U.S.C. 301; and Sec. 701, Pub. L. 114-74, 129 Stat. 599, unless otherwise noted.

            Cross References:
            For law and order regulations on Indian Reservations, see part 11 of this chapter. For regulations pertaining to business practices on Navajo, Hopi and Zuni reservations, see part 141 of this chapter. For additional regulation of certain employees trading with Indians, see 43 CFR part 20.735-28 and 29.

            Source:
            22 FR 10670, Dec. 24, 1957, unless otherwise noted. Redesignated at 47 FR 13327, Mar. 30, 1982.

            § 140.1
            Sole power to appoint.
            The Commissioner of Indian Affairs shall have the sole power and authority to appoint traders to the Indian tribes. Any person desiring to trade with the Indians on any reservation may, upon establishing the fact, to the satisfaction of the Commissioner of Indian Affairs, that he is a proper person to engage in such trade, be permitted to do so under such rules and regulations as the Commissioner of Indian Affairs may prescribe.

            § 140.2
            Presidential prohibition.
            The President is authorized, whenever in his opinion the public interest may require, to prohibit the introduction of goods, or of any particular articles, into the country belonging to any Indian tribe, and to direct that all licenses to trade with such tribe be revoked, and all applications therefor rejected. No trader shall, so long as such prohibition exists, trade with any Indians of or for said tribe.
            (R.S. 2132; 25 U.S.C. 263)

            § 140.3
            Forfeiture of goods.

            Any person other than an Indian of the full blood who shall attempt to reside in the Indian country, or on any Indian reservation, as a trader, or to introduce goods, or to trade therein, without a license, shall forfeit all merchandise offered for sale to the Indians or found in his possession, and shall moreover be liable to a penalty of $1,352: Provided, That this section shall not apply to any person residing among or trading with the Choctaws, Cherokee, Chickasaws, Creeks, or Seminoles, commonly called the Five Civilized Tribes: And provided further, That no white person shall be employed as a clerk by any Indian trader, except as such trade with said Five Civilized Tribes, unless first authorized so to do by the Commissioner of Indian Affairs.
            (R.S. 2133, as amended; 25 U.S.C. 264)
            [22 FR 10670, Dec. 24, 1957, as amended at 81 FR 42481, June 30, 2016; 82 FR 7652, Jan. 23, 2017; 83 FR 5195, Feb. 6, 2018; 84 FR 15101, Apr. 15, 2019; 85 FR 9369, Feb. 19, 2020]

            § 140.5
            Bureau of Indian Affairs employees not to contract or trade with Indians except in certain cases.
            (a) Definitions of terms as used in this part:
            (1) Indian means any member of an Indian tribe recognized as eligible for the services provided by the Bureau of Indian Affairs who is residing on a Federal Indian Reservation, on land held in trust by the United States for Indians, or on land subject to a restriction against alienation imposed by the United States. The term shall also include any such tribe and any Indian owned or controlled organization located on such a reservation or land.
            (2) Bureau or the “Bureau of Indian Affairs” means the Bureau of Indian Affairs and the Office of the Assistant Secretary for Indian Affairs, both in the Department of the Interior.
            (3) Employee means an officer, employee, or agent of the Bureau of Indian Affairs.
            (4) Secretary means the Secretary of the Interior.
            (5) Contract means any agreement made or under negotiation with any Indian for the purchase, transportation or delivery of goods or supplies.
            (6) Trading means buying, selling, bartering, renting, leasing, permitting and any other transaction involving the acquisition of property or services.
            (7) Commercial trading means any trading transaction where an employee engages in the business of buying or selling services or items which he/she is trading.
            (b) With the exceptions provided in subsection (b) of section 437 of title 18 U.S. Code, section 437 provides that whoever, being an officer, employee, or agent of the Bureau of Indian Affairs, has (other than as a lawful representative of the United States) any interest, in such officer, employee, or agent's name, or in the name of another person where such officer, employee, or agent benefits or appears to benefit from such interest:
            (1) In any contract made or under negotiation with any Indian, for the purchase, transportation or delivery of goods or supplies for any Indian, or
            (2) In any purchase or sale of any service or real or personal property (or any interest therein) from or to any Indian, or colludes with any person attempting to obtain any such contract, purchase, or sale, shall be fined not more than $5,000 or imprisoned not more than six months or both, and shall be removed from office, notwithstanding any other provision of law concerning termination from Federal employment.
            (c) The further subsections of this section authorize certain employees contracting and trading with Indians as authorized by the exceptions in section 437 of title 18 U.S. Code. All such contracting and trading is subject to the express provision of section 437 that none of the sales or purchases so authorized may be made if the purpose of any such sale, trade, or purchase is that of commercially selling, reselling, trading, or bartering such property.

            (d)(1) Under authority granted by section 437(b)(1) of title 18 U.S. Code, employees of the Bureau of Indian Affairs may with the approval of an authorized officer of the Bureau, as designated in paragraph (d)(2) of this section, purchase from or sell to an Indian any service or any real or personal property, not held in trust by the United States or subject to a restriction against alienation imposed by the United States, or any interest in such property. In addition, employees may purchase from Indians without approval from an authorized officer of the Bureau any non-trust or unrestricted personal property for home use or consumption the value of which property does not exceed $1000. Where the purchase or sale price is less than $1,000, employees may also purchase motor vehicles for their personal use from Indians or sell their personal motor vehicles to Indians without obtaining approval of such purchases or sales from an authorized officer of the Bureau. Approval must be obtained if the purchase or sale price is $1,000 or more.
            (2) As used in paragraph (d)(1) of this section an authorized officer of the Bureau of Indian Affairs for employees on reservations and in agencies or in field service units shall be the superintendent or other officer in charge of the unit in which the employee is employed. The authorized officer for the superintendent or officer in charge is his or her immediate supervisor. The authorized officer for employees in area offices is the Area Director, and the authorized officer for an Area Director is his or her immediate supervisor. The authorized officer for employees in the Central Office is the Deputy Assistant Secretary—Indian Affairs (Operations).
            (e) No employee of the Bureau of Indian Affairs may have any interest in any purchase or sale involving property or funds which are either held in trust by the United States for Indians or which are purchased, sold, utilized, or received in connection with a contract or grant to an Indian from the Bureau if such employee is employed in the office or installation of the Bureau which recommends, approves, executes, or administers such transaction, grant, or contract on behalf of the United States, except that, as authorized by section 437(b)(1) of title 18 U.S. Code an employee of the Bureau may have such an interest if such purchase or sale is approved by an authorized officer of the Bureau, as designated in paragraphs (e) (3) to (5) of this section, and the conditions in (e) (1) and (2) of this section are satisfied to the extent to which they are applicable to the transaction concerned:
            (1) The conveyance or granting of any interest in property held in trust or subject to restriction against alienation imposed by the United States is otherwise authorized by law.
            (2) Trading by employees with Indians which involves property or funds which are either held in trust by the United States or are subject to restrictions against alienation imposed by the United States must be conducted on the basis of sealed bid or public auction. If the trading involves leases or sales of trust or restricted Indian land it must be conducted on the basis of sealed bids. Such requirements for sealed bid or public auction may only be waived by the Assistant Secretary for Indian Affairs on the basis of a full report showing:
            (i) The need for the transaction,
            (ii) The benefits accruing to both parties,
            (iii) That the consideration for the proposed transaction shall be not less than the fair market value of the trust or restricted property or interest therein, unless the employee is involved in a transaction in accordance with § 152.25(c) or (d) or § 162.5(b)(1), (2), or (3) of this title or the employee is the recipient of a benefit for tribal members for which a uniform charge to all members is made, and
            (iv) An affidavit as follows shall accompany each proposed transaction: “I (name) (title), swear (or affirm) that I have not exercised any undue influence nor used any special knowledge received by reason of my employment in the Bureau in obtaining the (grantor's, purchaser's, vendor's) consent to the instant transaction.”

            (3) The authorized officer of the Bureau for employees employed on reservations, in agencies or service units is one who is not a relative by blood or marriage of the employee, and is not employed at the employee's reservation, agency or service unit. That officer must also be employed at not less than one grade level higher than such employee at the Washington, District of Columbia, Central Office or at an Area Office other than that with authority over the employee's reservation, agency, or service unit.

            (4) The authorized officer of the Bureau for employees employed in Area offices is one who is not a relative by blood or marriage of the employee, is not employed at the employee's area office, and must be employed at not less than one grade level higher than the employee at the Washington, District of Columbia, Central Office.
            (5) The authorized officer of the Bureau for employees employed at the Washington, District of Columbia, Central Office is the Secretary.
            (f) Except as provided in subsection (b)(2) of section 437 of title 18 U.S. Code as implemented by this section, nothing in the cited law shall be construed as preventing any employee of the Bureau who is an Indian, of whatever degree of Indian blood, from obtaining or receiving any benefit or benefits made available to Indians generally or to any member of his or her particular tribe, under any Act of Congress, nor to prevent any such employee who is an Indian from being a member of or receiving benefits by reason of his or her membership in any Indian tribe, corporation, or cooperative association organized by Indians, when authorized under such rules and regulations as the Secretary or his/her designee has prescribed or shall prescribe.
            [49 FR 25434, June 21, 1984]

            § 140.9
            Application for license.
            (a) Application for license must be made in writing on Form 5-052, setting forth the full name and residence of the applicant; if a firm, the firm name and the name of each member thereof; the place where it is proposed to carry on the trade; the capital to be invested; the names of the clerks to be employed; and the business experience of the applicant. The application must be forwarded through the Superintendent to the Commissioner of Indian Affairs, accompanied by two satisfactory testimonials on Form 2-077 as to the character of the applicant and his employees and their fitness to be in the Indian country, and by an affidavit of the Superintendent on Form 5-053 that neither he nor any person for him has any interest, direct or indirect, present or prospective, in the proposed business or the profits arising therefrom, and that no arrangement for any benefit to himself or to any other person on his behalf is contemplated in case the license is granted. Licensed traders will be held responsible for the conduct of their employees.
            (b) Itinerant peddlers or purveyors of foodstuffs and other merchandise shall be considered as traders and shall obtain a license or permit from the Superintendent setting forth the class of trade or peddling to be carried on, furnishing such character or credit references, or both, as may be required by the Superintendent. The period of the license for such itinerant peddlers shall be determined by the Superintendent.
            (c) When a license or permit to trade is issued under the regulations in this part 140, a fee of $5, payable when the license is issued, shall be levied against the licensee.
            [30 FR 8267, June 29, 1965. Redesignated at 47 FR 13327, Mar. 30, 1982]

            § 140.11
            License period.
            Licenses to trade shall not be issued unless the proposed licensee has a right to the use of the land on which the business is to be conducted. The license period shall correspond to the period of the lease or permit held by the licensee on restricted Indian land, except that where the proposed licensee is the owner or beneficial owner or holds a use right to the land on which the business is to be conducted, the license period shall be fixed by the Commissioner of Indian Affairs or his authorized representative, but in no case shall the license period exceed 25 years.
            [30 FR 8268, June 29, 1965. Redesignated at 47 FR 13327, Mar. 30, 1982]

            § 140.12
            License renewal.
            Application for renewal of license must be made to the Commissioner of Indian Affairs on Form 5-054, through the superintendent, at least 30 days prior to the expiration of the existing license, and the superintendent must report as to the record the applicant has made as a trader and his fitness to continue as such under a new license.

            § 140.13
            Power to close unlicensed stores.

            If persons carry on trade within a reservation with the Indians without a license, or continue to trade after expiration of the license without applying for renewal, the superintendent will immediately report the facts in the case to the Commissioner of Indian Affairs, who may, if necessary, direct the superintendent to close the stores of such traders.

            § 140.14
            Trade limited to specified premises.
            No trade with Indians is permitted at any other place than that specified in the license. Licenses to not cover branch stores. A separate license and bond must be furnished for each such store. The business of a licensed trader must be managed by the bonded principal, who must habitually reside upon the reservation, and not by an unbonded subordinate.

            § 140.15
            License applicable for trading only by original licensee.
            No trader will be allowed to lease, sublet, rent, or sell any of the buildings which he occupies, for any purpose to any other person or concern, without the approval of the Commissioner of Indian Affairs. A license to trade with Indians does not confer upon the trader any right or privileges in respect to the herding or raising of livestock upon the reservation. The use of reservation lands, whether tribal or allotted, for such purposes can be obtained by a trader only upon the terms and under the restrictions which apply to other persons. His license gives him no advantage over others in this respect.

            § 140.16
            Trade in annuities or gratuities prohibited.
            Traders are forbidden to buy, trade for, or have in their possession any annuity or other goods of any description which have been purchased or furnished by the Government for the use or welfare of the Indians. Livestock or their increase purchased by the Government and in possession or control of the Indians may not be purchased by any trader, not a member of the tribe to which the owners or possessors of the cattle belong, except with the written consent of the agent of said tribe.

            § 140.17
            Tobacco sales to minors.
            No trader shall sell tobacco, cigars, or cigarettes to any Indian under 18 years of age.

            § 140.18
            Intoxicating liquors.
            No trader shall use or permit to be used his premises for any unlawful conduct or purpose whatsoever. No trader shall use of permit to be used any part of his premises for the manufacture, sale, gift, transportation, drinking or storage of intoxicating liquors or beverages in violation of existing laws relating thereto. Violation of this section will subject the trader to criminal prosecution, revocation of license and such other action as may be necessary.

            § 140.19
            Drugs.
            Traders shall not keep for sale, or sell, give away, or use any opium, chloral, cocaine, peyote or mescal bean, hashish or Indian hemp or marihuana, or any compound containing either ingredient, and for violation hereof the trader's license shall be revoked.

            § 140.21
            Gambling.
            Gambling, by dice, cards, or in any way whatever, is strictly prohibited in any licensed trader's store or on the premises.

            § 140.22
            Inspection of traders' prices.
            It is the duty of the superintendent to see that the prices charged by licensed traders are fair and reasonable. To this end the traders shall on request submit to the superintendent or inspecting officials the original invoice, showing cost, together with a statement of transportation charges, retail price of articles sold by them, the amount of Indian accounts carried on their books, the total annual sales, the value of buildings, livestock owned on reservation, the number of employees, and any other business information such officials may desire. The quality of all articles kept on sale must be good and merchantable.

            § 140.23
            Credit at trader's risk.

            Credit given Indians will be at the trader's own risk, as no assistance will be given by Government officials in the collection of debts against Indians. Traders shall not accept pawns or pledges of personal property by Indians to obtain credit or loans.

            § 140.24
            Cash payments only to Indians.
            Traders must not pay Indians in tokens, tickets, store orders, or anything else of that character. Payment must be made in money, or in credit if the Indian is indebted to the trader.

            § 140.25
            Trade in antiquities prohibited.
            Traders shall not deal in objects of antiquity removed from any historic or prehistoric ruin or monument on land owned or controlled by the United States.

              Cross Reference:
              For regulations pertaining to archaeological resources, see part 262 of this chapter. For regulations of the Bureau of Land Management regarding antiquities, see 43 CFR part 3.

            § 140.26
            Infectious plants.
            Traders shall not introduce into, sell, or spread within Indian reservations any plant, plant product, seed, or any type of vegetation, which is infested, or infected or which might act as a carrier of any pests of infectious, transmissible, or contagious diseases, as determined by the laws and regulations of the State for plant quarantine and pest control. For the purpose of enforcement of this provision State officers may enter Indian reservations, with the consent of the superintendent, to inspect the premises of such traders and otherwise to execute such State laws and regulations.

          Pt. 141
          PART 141—BUSINESS PRACTICES ON THE NAVAJO, HOPI AND ZUNI RESERVATIONS

              Subpart A—Interpretation and Construction Guides
              Sec.
              141.1
              Purpose.
              141.2
              Scope.
              141.3
              Definitions.
              141.4
              Interpretation and construction.

              Subpart B—Licensing Requirements and Procedures
              141.5
              Reservation business license required.
              141.6
              Approval or denial of license application.
              141.7
              Bond requirement for a reservation business.
              141.8
              License period for reservation businesses.
              141.9
              Application for license renewal.
              141.10
              License fees for reservation businesses.
              141.11
              Tribal fees, taxes, and enforcement.
              141.12
              Peddler's permits.
              141.13
              Amusement company licenses.
              141.14
              Trade in livestock restricted.
              141.15
              Consent to jurisdiction of Hopi and Zuni tribal courts.

              Subpart C—General Business Practices
              141.16
              Price marking.
              141.17
              Health and sanitation requirements.
              141.18
              Availability of employee authorized to transact business.
              141.19
              Check cashing.
              141.20
              Payment for purchase of Indian goods or services.
              141.21
              Trade confined to premises.
              141.22
              Subleasing prohibited.
              141.23
              Posted statement of ownership.
              141.24
              Attendance at semi-annual meetings.
              141.25
              Withholding of mail prohibited.
              141.26
              Trade in antiquities prohibited.
              141.27
              Trade in imitation Indian crafts prohibited.
              141.28
              Gambling prohibited.
              141.29
              Political contributions restricted.
              141.30
              Retaliation prohibited.
              141.31
              Trade by Indian Affairs employees restricted.

              Subpart D—Pawnbroker Practices
              141.32
              Reservation pawnbroker license required.
              141.33
              Fees for pawnbroker license.
              141.34
              Pawnbroker records.
              141.35
              Pawnbroker disclosure requirements.
              141.36
              Maximum finance charges on pawn transactions.
              141.37
              Prepayment.
              141.38
              Pawn loans, period, notice and sale.
              141.39
              Sale and redemption of pawn.
              141.40
              Proceeds of sale.
              141.41
              Refinancing transaction.
              141.42
              Lost pawn receipts or tickets.
              141.43
              Outstanding obligations owed to pledgee.
              141.44
              Insurance on pawn.

              Subpart E—Consumer Credit Transactions Other Than Pawn
              141.45
              Consumer credit applications.
              141.46
              Credit disclosure statements.
              141.47
              Monthly billing statement.
              141.48
              Translation of disclosure statements.
              141.49
              Usury prohibited.

              Subpart F—Enforcement Powers, Procedures and Remedies
              141.50
              Penalty and forfeiture of merchandise.
              141.51
              Authority to close unlicensed reservation businesses.
              141.52
              Revocation of license and lease and recovery on bond.
              141.53
              Cease and desist orders.
              141.54
              Periodic review of performance.
              141.55
              Price monitoring and control.
              141.56
              Show cause procedures.
              141.57
              Procedures to cancel liability on bond.
              141.58
              Records, reports, and obligations of reservation business owners.
              141.59
              Customer complaint procedures.

            Authority:
            5 U.S.C. 301; 25 U.S.C. 2 and 9; and Sec. 701, Pub. L. 114-74, 129 Stat. 599, unless otherwise noted.

            Source:
            40 FR 39835, Aug. 29, 1975, unless otherwise noted. Redesignated at 47 FR 13327, Mar. 30, 1982.

            Subpart A—Interpretation and Construction Guides

              § 141.1
              Purpose.
              The purpose of the regulations of this part is to prescribe rules for the regulation of reservation businesses for the protection of Indian consumers on the Navajo, Hopi and Zuni Reservations as required by 25 U.S.C. 261, 262, 263, and 264.

              § 141.2
              Scope.
              The regulations of this part apply to all non-members of the Navajo, Hopi and Zuni Tribes, who engage in retail businesses on the above respective reservations. These regulations do not apply to businesses that are wholly owned and operated by either the Navajo, Hopi or Zuni Tribes, or by individual tribal members within their respective reservations.
              [45 FR 64906, Oct. 1, 1980. Redesignated at 47 FR 13327, Mar. 30, 1982]

              § 141.3
              Definitions.
              For the purposes of this part—
              (a) Annual percentage rate means the annual percentage rate of finance charge determined in accordance with 12 CFR 226.5, which defines annual percentage rates.
              (b) Consumer credit transaction means a grant of credit or a loan that is made by a person regularly engaged in the business of making loans or granting credit primarily for a personal, family, household, or agricultural purpose.
              (c) Draft means a writing that is a direction to pay that:
              (1) Identifies the person to pay with reasonable certainty;
              (2) Is signed by the drawer;
              (3) Contains an unconditional order to pay a sum certain in money and no other promise, order, obligation or power given by the drawer;
              (4) Is payable on demand or at a definite time; and
              (5) Is payable to order.
              (d) Finance charge means the cost of credit determined in accordance with 12 CFR 226.4, which defines “finance charge”.
              (e) Firm means a corporation or a partnership.
              (f) Gross receipts include the following:
              (1) All cash received from the conduct and operation of the licensee's business at the premises described in the application for license.
              (2) Receipts from both wholesale and retail transactions.
              (3) Receipts resulting from transactions concluded off the reservation that originate from the conduct and operation of the licensee's business on the reservation.
              (4) The market value of all property taken in trade on the date when received and either held by the licensee for purposes other than resale or credited on any account in payment for merchandise.
              (5) Proceeds from the sale of any goods bought from Indians regardless of where the sale takes place.
              (6) Finance charge received on loans, but not the return of principal.
              (g) Open end credit means consumer credit transactions made on an account by a plan under which:
              (1) The creditor may permit the customer to make purchases or obtain loans, from time to time, directly from the creditor or indirectly by use of a credit card, check, or other device, as the plan may provide;

              (2) The customer has the privilege of paying the balance in full or in installments; and

              (3) A finance charge may be computed by the creditor from time to time on an outstanding unpaid balance.
              (h) Pawnbroker means a person whose business includes lending money secured by personal property deposited with the lender.
              (i) Peddler means a person who offers goods for sale within the exterior boundaries of the Hopi, Navajo or Zuni Reservations, but does not do business from a fixed location or site on any of those reservations.
              (j) Person includes a natural person, a corporation, trust, estate, partnership, cooperative or association.
              (k) Replacement value means the present cost to the owner of replacing an item with one having the same quality and usefulness.
              (l) Reservation business means a person that engages at a fixed location or site within the exterior boundaries of the Navajo, Hopi or Zuni Reservations in the sale or purchase of goods or services or in consumer credit transactions with Indians and is not a bank, saving bank, trust company, savings or building and loan association or credit union operating under the laws of the United States or the laws of New Mexico, Arizona or Utah, a business on the Hopi Reservation that is wholly owned and operated by members of the Hopi Tribe, or a business on the Zuni Reservation that is wholly owned and operated by members of the Zuni Tribe.

              § 141.4
              Interpretation and construction.
              (a) Area Director refers to the Area Director of the Bureau of Indian Affairs or the Administrator of the Joint Use Area of the Bureau of Indian Affairs who has jurisdiction over the land on which a person does business or intends to do business with Indians.
              (b) Commissioner refers to the Commissioner of Indian Affairs or a person to whom the Commissioner of Indian Affairs has delegated authority under this part or under 25 U.S.C. 261, 262, 263, or 264.
              (c) Superintendent refers to the Superintendent of the Bureau of Indian Affairs who has jurisdiction over the land on which a person does business or intends to do business with Indians.
              (d) Tribe refers to the tribe that has jurisdiction over the land on which a person does business or intends to do business with Indians.

            Subpart B—Licensing Requirements and Procedures

              § 141.5
              Reservation business license required.
              (a) No person may own or lease a reservation business without a license issued under the provisions of this subpart.
              (b) The applicant shall apply in writing on a form provided by the Commissioner setting forth the following:
              (1) The full name and residence of the applicant.
              (2) Three (3) responsible references.
              (3) The firm name and the name of each member of the board of directors if the applicant is a firm.
              (4) Satisfactory evidence as to the character, experience and business ability of the applicant and the employees of the applicant.
              (5) Satisfactory evidence of the general fitness of the applicant and employees of the applicant to reside on the Indian reservation.
              (c) Upon the request of the Commissioner, the applicant shall furnish the following:
              (1) The capital invested or to be invested and, of this, the amount of capital owned and the amount borrowed or to be borrowed.
              (2) The name of the lender of any borrowed capital, the date due, the rate of interest to be paid, and the names of any endorsers and security.
              (3) A copy of any contract or trade agreement whether oral or written with creditors or financing individuals or institutions, including any stipulations whereby financing fees are to be paid.
              (d) Information that if released might adversely affect the competitive position of the applicant shall remain confidential.
              [40 FR 39837, Aug. 29, 1975, as amended at 41 FR 3288, Jan. 22, 1976. Redesignated at 47 FR 13327, Mar. 30, 1982]

              § 141.6
              Approval or denial of license application.
              (a) The Commissioner shall approve or deny each license application and notify the applicant no later than thirty (30) days after receipt of a completed application.
              (b) No application is complete until any clearance or tribal council approval required by tribal or Federal regulations has been obtained.
              (c) The Commissioner may not deny a license to an applicant for the purpose of limiting competition.
              (d) If the application is approved the license shall be issued on a form provided by the Commissioner.
              (e) If the Commissioner denies the license application the applicant may appeal under the provisions of part 2 of this title no later than thirty (30) days after the date on which notice of denial of the application was sent.

              § 141.7
              Bond requirement for a reservation business.
              (a) An applicant for a license or renewal of a license to operate a reservation business shall at the time the application is submitted furnish a bond on a form provided by the Commissioner in the name of the applicant in the amount of ten thousand dollars ($10,000) or such larger sum as the Commissioner may designate, with two (2) on more sureties approved by the Commissioner or with a guaranty company qualified under the Act of August 13, 1894 (28 Stat. 279; 6 U.S.C. 6-13). The bond shall be for the same period covered by the license. No licensee may trade without a bond. Except as provided in paragraph (d) of this section, no surety may be released from liability until the license expires.
              (b) The bond shall be in favor of the United States for the benefit of the United States and any customer of the licensee who recovers a judgment for damages resulting from violation of any law or regulation affecting or relating to reservation businesses. Any customer who recovers such a judgment may bring suit on the bond in his or her own name. The bond shall be conditioned on payment by the licensee of all judgments for damages resulting from violations of the regulations of this part.
              (c) Any surety for a reservation business on the Hopi or Zuni Reservation shall agree in writing to submit itself voluntarily to the jurisdiction of the tribal court for the purpose of adjudicating any claim arising under the bond.
              (d) Any surety on the bond of a licensed reservation business may be relieved from liabilities by complying with the provisions of § 141.57 of this title.
              [40 FR 39837, Aug. 29, 1975, as amended at 41 FR 22937, June 8, 1976. Redesignated at 47 FR 13327, Mar. 30, 1982]

              § 141.8
              License period for reservation businesses.
              A license to operate a reservation business may not be issued unless the applicant has a right to use the land on which the business is to be conducted. The license period shall correspond to the period of the lease held by the licensee. The license period in no event may exceed twenty-five (25) years.

              § 141.9
              Application for license renewal.
              (a) An applicant for renewal of the license to trade shall file an application on a form provided by the Commissioner with the Area Director not less than three (3) months prior to the expiration of the existing license. The Area Director shall report in writing to the Commissioner on the record the applicant has made as a reservation business owner and the applicant's present fitness to reside on the Indian reservation.
              (b) The Commissioner may issue a temporary permit for three (3) months pending consideration of application for license renewal.
              (c) Prior to expiration of the existing license or, if issued, the temporary permit, the Commissioner shall approve or deny the application for license renewal and notify the applicant.
              (d) No license may be renewed until any clearance or tribal council approval required by tribal or other federal regulations has been obtained.
              (e) If the Commissioner denies the application for renewal, the applicant may appeal under the provisions of part 2 of this title.

              § 141.10
              License fees for reservation businesses.
              (a) Prior to the issuance of an initial license, each licensee who is not a member of the Navajo tribe shall pay the following amount:
              (1) If the license is issued before July 1, the licensee shall pay fifty dollars ($50).
              (2) If the license is issued on or after July 1, the licensee shall pay twenty-five dollars ($25).
              (b) Each licensed business owner who is not a member of the Navajo tribe shall pay on or before January 10 of each year an annual license fee determined as follows based on the licensee's most recent annual report:
              (1) If the licensee's gross receipts are less than one hundred thousand dollars ($100,000) for the year or the licensee has not yet been required to file its first annual report, the license fee is fifty dollars ($50).
              (2) If the licensee's gross receipts for the year are at least one hundred thousand dollars ($100,000) but not more than four hundred and ninety-nine thousand nine hundred and ninety-nine dollars ($499,999) the fee is one hundred dollars ($100).
              (3) If the licensee's gross receipts for the year are at least five hundred thousand dollars ($500,000) but not more than seven hundred and forty-nine thousand nine hundred and ninety-nine dollars ($749,999), the fee is two hundred dollars ($200).
              (4) If the licensee's gross receipts for the year are seven hundred fifty thousand dollars ($750,000) or more, the fee is three hundred dollars ($300).
              (c) The Navajo Area Director shall determine the annual license fee payable by licensees who are enrolled members of the Navajo Tribe. The license fee for an enrolled member of the Navajo Tribe may not be less than twenty percent (20%) nor greater than one hundred percent (100 percent) of the amount the licensee would be required to pay if the licensee were not a tribal member.
              (d) All fees are payable to the Area Director and shall be deposited to the credit of the account “Special Deposits.”
              [40 FR 39835, Aug. 29, 1975, as amended at 59 FR 54502, Oct. 31, 1994]

              § 141.11
              Tribal fees, taxes, and enforcement.
              (a) The regulations in this part do not preclude the Hopi, Navajo, or Zuni tribal councils from assessing and collecting such fees or taxes as they may deem appropriate from reservation businesses.
              (b) Nothing in the regulations of this part may be construed to preclude tribal enforcement of these regulations or consistent tribal ordinances.
              [40 FR 39837, Aug. 29, 1975, as amended at 41 FR 3288, Jan. 22, 1976. Redesignated at 47 FR 13327, Mar. 30, 1982]

              § 141.12
              Peddler's permits.
              (a) Except as provided in paragraph (b) of this section, no peddler may offer goods for sale within the exterior boundaries of the Hopi, Navajo, or Zuni reservations without a peddler's permit. The permit shall state on its face the class of goods that may be offered for sale. No peddler may offer for sale any class of goods other than those listed on the face of the permit.
              (b) No peddler who is an enrolled member of a federally recognized Indian tribe is required to obtain a peddler's permit for offering to sell the following items:
              (1) Coal and wood for non-commercial use,
              (2) Homegrown fresh products,
              (3) Meat products raised locally by the peddler, or
              (4) Arts and crafts made by the peddler or the peddler's family.
              (c) The applicant shall apply for a permit in writing on a form provided by the Commissioner.
              (d) Peddlers shall pay such fee and post such surety bond on a form provided by the Commissioner as the Commissioner requires. The surety bond required may not be less than five hundred dollars ($500) nor more than ten thousand dollars ($10,000).
              (e) Any surety on the bond of a peddler may be relieved of liability by complying with the provisions of § 141.57.
              (25 U.S.C. 261 et seq.)
              [43 FR 27826, June 27, 1978. Redesignated at 47 FR 13327, Mar. 30, 1982]

              § 141.13
              Amusement company licenses.
              (a) No person may operate a portable dance pavilion, mechanical amusement device such as a ferris wheel or carousel, or commercial games of skill within the exterior boundaries of the Navajo, Hopi, or Zuni Reservations without a license from the Commissioner.
              (b) The licensee shall pay such fee as the Commissioner requires. The fee shall be not less than five dollars ($5) nor more than twenty-five dollars ($25) per unit.
              (c) The licensee shall post a surety bond on a form provided by the Commissioner in an amount not exceeding ten thousand dollars ($10,000) and a personal injury and property damage liability bond of not less than five thousand dollars ($5,000) nor more than fifty thousand dollars ($50,000) as may be required by the Commissioner.
              (d) The provisions of this section do not apply to amusement companies where the contract between the tribe and the amusement company provides for the payment of a fee to the tribe and for the protection of the public against personal injury and property damage by bond in the amounts specified in paragraph (c) of this section.
              (e) Any surety on a bond under this section may be relieved of liability by complying with the provisions of § 141.57.

              § 141.14
              Trade in livestock restricted.
              (a) No person other than an enrolled member of the tribe or any association, partnership, corporation or business entity wholly owned by enrolled members of the tribe may purchase livestock from tribal members without a special permit issued by the Commissioner.
              (b) The Commissioner shall issue a permit to each applicant who establishes to the Commissioner's satisfaction that the applicant is a fit person to engage in the purchase of livestock and who posts a bond on a form provided by the Commissioner in the amount of ten thousand dollars ($10,000). This paragraph does not require a person who has posted a bond of ten thousand dollars ($10,000) or more under other provisions of this part to post an additional bond to obtain a permit under this section.
              (c) Any surety on a bond under this section may be relieved of liability by complying with the provisions of § 141.57.
              (d) The provisions of this section do not apply to purchases of livestock made at an organized public auction.
              [40 FR 39837, Aug. 29, 1975, as amended at 41 FR 22937, June 8, 1976. Redesignated at 47 FR 13327, Mar. 30, 1982]

              § 141.15
              Consent to jurisdiction of Hopi and Zuni tribal courts.
              As a condition to doing business on the Hopi or the Zuni Reservation each applicant for license under this part shall, in accordance with the constitutions of those tribes, voluntarily submit the applicant and the applicant's employees or agents to the jurisdiction of the tribal court for the purpose of the adjudication of any dispute, claim or obligation arising under tribal ordinance relating to commerce carried out by the licensee.

            Subpart C—General Business Practices

              § 141.16
              Price marking.
              The price of each article offered for sale shall be marked on the article, its containers or in any other manner that is plain and visible to the customer and that affords the customer a reasonable opportunity to learn the price of the article prior to purchase.

              § 141.17
              Health and sanitation requirements.
              (a) Each licensee shall keep both the premises and the place of business in a clean and sanitary condition at all times and shall avoid exposure of foodstuffs to contamination. No licensee may offer for sale any goods that are banned for health or sanitation reasons from retail sale by any Federal agency or by the tribe or, where not in conflict with the tribal regulations, by the State or by any State agency. No licensee may knowingly offer for sale any food that is contaminated.

              (b) All weights and measure shall conform to standards set by the National Bureau of Standards and to standards, if any, set by the tribe and, if not in conflict with tribal regulations, to the standards set by the State.
              (c) If training in foodhandling is available from the Indian Health Service, each person working in a reservation business shall complete the foodhandler training offered by the Indian Health Service before handling any food sold by a reservation business.
              (d) Any person whom the Service Unit Director of the Indian Health Service determines is infected with or is a carrier of any communicable disease in a stage likely to be communicable to persons exposed as a result of the infected employee's normal duties as a foodhandler may not be employed by a reservation business.
              (e) Each business shall comply with all Federal health regulations and with all tribal health regulations that are consistent with Federal regulations. Each business shall comply with State health regulations that are consistent with tribal and Federal health regulations.
              (f) Except as otherwise provided herein, nothing in this section may be construed as a grant of enforcement powers to any agency of a State or its subdivisions.
              (g) It is the duty of the health officers of the Indian Health Service to make periodic inspections, recommend improvements, and report thereon to the Commissioner.

              § 141.18
              Availability of employee authorized to transact business.
              Each licensee shall provide during normal business hours an employee authorized in writing to engage in all business transactions that the licensee normally offers to customers.

              § 141.19
              Check cashing.
              (a) A reservation business may give a fully negotiable check in addition to U.S. currency when cashing a draft, check or money order. A reservation business may not give scrip, credit or other substitute for U.S. currency when cashing a draft, check or money order.
              (b) A reservation business owner or employee may advise a customer cashing checks, money orders or drafts of the amount due on the customer's credit accounts, pawn accounts or any other obligation the customer owes to the business, but in no event may the owner or employee withhold the proceeds of the check, money order or draft from the customer on the basis of existing credit obligations.
              [40 FR 39837, Aug. 29, 1975, as amended at 41 FR 3288, Jan. 22, 1976. Redesignated at 47 FR 13327, Mar. 30, 1982]

              § 141.20
              Payment for purchase of Indian goods or services.
              (a) A reservation business shall pay for the purchase of Indian goods or services with cash or a fully negotiable check. A reservation business may not pay for Indian goods or services with trade slips or future credit. In any transaction involving the purchase of Indian goods on the Navajo Reservation, the reservation business shall furnish a bill of sale indicating the name of the seller, a description of the goods, the amount paid for the goods, the date of sale, and the signature of both parties and shall retain a copy of the bill of sales in its business records.
              (b) A reservation business owner or employee may advise a customer selling Indian goods or services of the amount due on the customer's credit accounts, pawn accounts or any other obligation the customer owes to the business, but in no event may the owner or employee withhold the proceeds of the sale from the customer on the basis of existing credit obligations.

              § 141.21
              Trade confined to premises.
              The licensee shall confine all trade on the reservation to the premises specified in the license, except, where permitted under § 141.14, the buying and selling of livestock and livestock products.

              § 141.22
              Subleasing prohibited.
              No licensee may lease, sublet, rent, or sell any building that the licensee occupies for any purpose to any person without the approval of the Commissioner and the consent of the tribe.

              § 141.23
              Posted statement of ownership.
              The licensee of a reservation business shall display in a prominent place a notice that is legible to customers stating the form of the business entity, the names and addresses of all other reservation businesses owned in whole or in part by the business entity, and if the licensee is not a corporation, the names and addresses of the owner or owners of the business. If the licensee is a corporation the notice shall list the names and addresses of the members of the Board of Directors.

              § 141.24
              Attendance at semi-annual meetings.
              Upon the request of a tribal official designated by the governing body, each licensee shall attend a semi-annual public meeting of a tribal governing body to respond to customer inquiries.

              § 141.25
              Withholding of mail prohibited.
              No owner or employee of a reservation business may open, withhold, or otherwise delay the delivery of mail.

              § 141.26
              Trade in antiquities prohibited.
              No licensee may knowingly buy, sell, rent or lease any artifact created before 1930 that was removed from an historic ruin or monument.

              § 141.27
              Trade in imitation Indian crafts prohibited.
              No person may introduce or possess for disposition or sale within the exterior boundaries of the Hopi, Navajo or Zuni Reservations any object that is represented to be an Indian handicraft unless the object was produced by an Indian or Indians with the help of only such devices as allow the manual skill of the maker to condition the shape and design of each individual's product.

              § 141.28
              Gambling prohibited.
              No licensee may permit any person to gamble by dice, cards, or in any way whatever, including the use of any mechanical device, on the premises of any licensed business.

              § 141.29
              Political contributions restricted.
              No reservation business owner who is ineligible to vote in a Navajo tribal election may grant or donate any money or goods to any candidate for election to Navajo tribal office.

              § 141.30
              Retaliation prohibited.
              No licensee may refuse service to any customer for the purpose of retaliating against that customer for enforcing or attempting to enforce the regulations of this part.

              § 141.31
              Trade by Indian Affairs employees restricted.
              (a) Except as authorized in this section, no person employed by the U.S. Government in Indian Affairs may have any interest in any trade with an Indian or an Indian organization. Employees of the U.S. Government may trade with an Indian or Indian organization for any purpose other than to engage in a profit-making activity under the following conditions:
              (1) Where the amount involved is $500 or less a U.S. Government employee may purchase goods or services from an Indian or Indian organization.
              (2) Where the amount involved is greater than $500 a U.S. Government employee may, with the approval of the Secretary of the Interior, purchase goods or services from any Indian or Indian organization.
              (b) Lease or sale of home sites or allotments on trust or restricted Indian land to or from Indian employees of the U.S. Government shall be made on sealed bids, unless the Commissioner waives this requirement on the basis of a report showing:
              (1) The need for the transaction,
              (2) The benefits accruing to both parties, and
              (3) That the consideration for the proposed transaction is not less than the appraised value of the land or leasehold interest unless the Indian employee qualifies and is intending a transaction in accordance with § 152.5 (b) and (c) of this chapter or § 162.5(b)(1), (2) and (3) of this chapter.
              An affidavit, as follows, shall accompany each proposed land transaction:

                I,______________(Name)

                ______________(Title)

                swear (or affirm) that I have not exercised any undue influence nor used any special knowledge received by reason of my office in obtaining the (grantor's, purchaser's, vendor's) consent to the instant transaction.

              (c) This section does not prohibit any reservation business from contracting with the Federal Government to provide postal services to Indian communities in which Government postal service is unavailable.
              (d) Nothing in this section prohibits an Indian employee from receiving benefits by reason of membership in a tribe or corporation or cooperative association organized by and operated for Indians.
              (e) U.S. Government employees who violate this section are liable to a penalty of five thousand dollars ($5,000) and shall be removed from office, see 25 U.S.C. 68.
              [40 FR 39837, Aug. 29, 1975, as amended at 41 FR 3288, Jan. 22, 1976. Redesignated at 47 FR 13327, Mar. 30, 1982]

            Subpart D—Pawnbroker Practices

              § 141.32
              Reservation pawnbroker license required.
              (a) No person may accept pawns or pledges of personal property as security for monies or accounts due by an Indian within the exterior boundaries of the Navajo, Hopi or Zuni Reservations unless such person is an agent of a bank, saving bank, trust company, savings or building and loan association, or credit union operating under the laws of the United States or the laws of New Mexico, Arizona, or Utah or unless such person—
              (1) Holds a valid license to operate a reservation business,
              (2) Holds a valid reservation pawnbroker license, and
              (3) Posts a bond on a form provided by the commissioner in the name of the licensee in the amount of twenty-five thousand dollars ($25,000) or such larger sum as may be designated by the Commissioner with two (2) or more sureties approved by the Commissioner or with a guaranty company qualified under the Act of August 13, 1894 (28 Stat. 279; 6 U.S.C. 6-13).
              (b) An applicant for a reservation pawnbroker license shall apply in writing on a form provided by the Commissioner.
              (c) The bond required by paragraph (a) of this section shall be in favor of the United States for the benefits of the customers of the licensee and shall specifically indemnify all customers who have recovered judgment against the licensee for destroyed, lost, misplaced or misappropriated pawn or other property. Any customer recovering such a judgment may bring suit on the bond in his or her own name. The bond shall be for the same period as the license.
              (d) Any surety on a bond under this section may be relieved of liability by complying with the provisions of § 141.57.
              (e) No person may accept pawns or pledges of personal property as security for monies or accounts due by an Indian after the effective date of a tribal ordinance banning the acceptance of pawn on the reservation.
              [40 FR 39837, Aug. 29, 1975, as amended at 41 FR 3288, Jan. 22, 1976; 41 FR 22937, June 8, 1976. Redesignated at 47 FR 13327, Mar. 30, 1982]

              § 141.33
              Fees for pawnbroker license.
              (a) Prior to the issuance of an initial pawnbroker license, each licensee who is not a member of the Navajo Tribe shall pay the following amount:
              (1) If the license is issued before July 1, the licensee shall pay two hundred dollars ($200).
              (2) If the license is issued on or after July 1, the licensee shall pay one hundred dollars ($100).
              (b) Each licensed pawnbroker who is not a member of the Navajo Tribe shall pay on or before January 10 of each year an annual license fee of two hundred dollars ($200).
              (c) The Area Director shall determine the annual license fee payable by licensees who are enrolled members of the Navajo Tribe. The license fee for a member of the Navajo Tribe may not be less than twenty percent (20 percent) nor greater than one hundred percent (100 percent) of the amount the licensee would be required to pay if the licensee were not tribal member.

              (d) All fees are payable to the Area Director and shall be deposited to the credit of the account “Special Deposits.”
              [40 FR 39837, Aug. 29, 1975, as amended at 41 FR 3288, Jan. 22, 1976. Redesignated at 47 FR 13327, Mar. 30, 1982; 59 FR 54502, Oct. 31, 1994]

              § 141.34
              Pawnbroker records.
              Each pawnbroker shall keep a written record of the following information:
              (a) Transaction number.
              (b) Name of pledgor.
              (c) Address of pledgor.
              (d) Census number or social security number of pledgor.
              (e) Date of transaction.
              (f) Replacement value of pawn.
              (g) Description of pawned item.
              (h) Amount loaned in cash.
              (i) Amount loaned as credit.
              (j) Finance charge.
              (k) Amount financed.
              (l) Date and amount of payments made by pledgor.
              (m) Date notice of default sent to pledgor.
              (n) Date pawned item sold.
              (o) Name and address of purchaser.
              (p) Amount received upon sale.
              (q) Amount of any surplus returned to the pledgor.
              (r) Such other information as the Commissioner may require.

              § 141.35
              Pawnbroker disclosure requirements.
              In all transactions in which pawn is taken the lender shall give the borrower a written ticket or receipt disclosing the following information to the extent applicable:
              (a) Clear identification of the property pledged.
              (b) The date of the transaction.
              (c) Amount of the loan.
              (d) Name and social security or census number of the pledgor.
              (e) Replacement value of the pawn as agreed upon by the pledgor and pledgee.
              (f) Date on which loan is due.
              (g) The amount, expressed as a dollar amount, of any finance charges.
              (h) The finance charges expressed as an annual percentage rate and computed in accordance with the provisions of 12 CFR 226.5(b).
              (i) The amount, or method of computing the amount, of any charges to be assessed after the date the loan is due.
              (j) A statement of the conditions of default and the pledgor's rights upon default, as defined by this part.
              (k) Identification of the method of computing any unearned portion of the finance charges in the event of prepayment of the obligation.

              § 141.36
              Maximum finance charges on pawn transactions.
              No pawnbroker may impose an annual finance charge greater than twenty-four percent (24 percent) of the unpaid balance for the period of the loan nor assess late charges or delinquency charges on any loan.

              § 141.37
              Prepayment.
              (a) Subject to the provisions of paragraph (b) of this section, the pledgor may prepay in full or in any part the unpaid balance of a loan at any time without penalty.
              (b) When a loan is prepaid the lender may collect the earned portion of the finance charge or may charge an administrative fee not to exceed ten percent (10 percent) of the unearned finance charge or two dollars ($2) whichever is greater.

              § 141.38
              Pawn loans, period, notice and sale.
              (a) The proceeds of all loans secured by pawn and for which a finance charge is imposed shall be paid only in cash or with a fully negotiable check.
              (b) The period of all such loans shall be no less than twelve (12) months, subject to the provisions of paragraph (c).
              (c) Thirty (30) days prior to the end of the loan period the pledgee may make a declaration of intention to proceed with sale of the pawned item by sending notice of intent to the pledgor.

              (d) The notice required in paragraph (c) of this section shall be sent to the pledgor and proof of delivery obtained and shall contain a description of the item pawned, a statement of the principal and finance charge owed, a statement of the intention to sell, the date of the sale, and the procedure for redemption.

              (e) Nothing in this section requires the business owner to proceed with notice and sale if the business owner desires to hold the pawn for a period longer than the loan period stated in the original agreement.
              (f) Unless notice is given under paragraph (c) of this section, or the loan is refinanced under the provisions of § 141.41, no finance charge may be imposed for the time the loan remains unpaid after the end of the loan period stated on the pawn ticket.

              § 141.39
              Sale and redemption of pawn.
              (a) If the retention period has expired and notice as required under § 141.38 of this part has been sent and received, the pledgee may proceed with the sale of the pawn.
              (b) The pawn shall be sold no sooner than thirty (30) days but no later than twelve (12) months after notice of intent to sell has been given. The sale shall be a public sale, with notice of the time, place, and manner to be given in a tribal newspaper of general circulation not less than fourteen (14) days prior to the sale, or in the absence of such a newspaper, in a commercially reasonable manner. The sale itself shall also be conducted in a commercially reasonable manner.
              (c) A pledgor may redeem pawn which has been put up for sale at any time before the day it is to be sold by tendering to the pledgee the face amount of the loan, plus the finance charge assessed on the original loan. The pledgee may also collect an additional charge covering the period between the date due and the date of redemption, provided that the rate of charge does not exceed the finance charge on the original loan.
              (d) The pledgee may buy at the pledgee's own sale if the collateral is of a type customarily sold in a recognized market or which is the subject of widely distributed standard price quotations.
              (e) Pawn held for more than twelve (12) months after notice of intent to sell has been given may not be sold, but the pledgor may redeem the pawn at any time by tendering to the pledgee the face amount of the loan, plus the finance charge that accrued before the end of the sale period provided in paragraph (b) of this section.
              [40 FR 39837, Aug. 29, 1975, as amended at 41 FR 3288, Jan. 22, 1976. Redesignated at 47 FR 13327, Mar. 30, 1982]

              § 141.40
              Proceeds of sale.
              (a) The following items shall be deducted from the proceeds of the sale of pawned items in the following order of priority:
              (1) The expense of advertising and conducting the sale, not to exceed ten percent (10%) of the amount loaned.
              (2) The principal amount of the loan, plus any accrued finance charges.
              (3) The finance charge calculated at the annual percentage rate of the original loan on the unpaid balance of the loan for the period from the date of default to the date of sale.
              (b) Within ten (10) days after the sale of the pledge under this section, the pledgee shall send a notice to the pledgor informing the pledgor of the date of the sale, the proceeds of the sale, the allowable costs of the sale, any additional finance charges, and the amount of any surplus realized. The pledgee shall obtain proof that the notice was delivered.
              (c) Any proceeds of the sale remaining after the deductions authorized in paragraph (a) of this section are deemed to be “surplus” and shall be paid over to the pledgor or the pledgor's estate in U.S. currency.
              (d) The sale of pledged goods and the application of the proceeds in accordance with this section extinguishes all rights of action of the pledgee for any unpaid principal or finance charge on the original loan.

              § 141.41
              Refinancing transaction.
              (a) Any pawn agreement may be refinanced, either with or without an increase in the principal amount of the loan, prior to or following the date of expiration of the original period of the loan upon agreement between the parties.

              (b) Such refinancing constitutes a new transaction for purposes of all disclosure and record keeping requirements of this part and requires the issuance of a new ticket or receipt.

              (c) The rate of the additional finance charge imposed as part of the refinancing agreement may not exceed the maximum rate imposed by § 141.36.
              (d) The total finance charges in a refinancing agreement may not exceed the sum of the following amounts:
              (1) The finance charge that the pledgor would have been required to pay upon prepayment on the date of refinancing under § 141.37 of this part, except that, for the purpose of computing this amount, no minimum finance charge or administrative fee may be included, and
              (2) Such additional finance charge as is permissible on the balance of the loan over the remaining period of the loan as extended.
              (e) The default and sale procedures of this part apply to a refinanced pawn transaction in the same manner as they apply to an original pawn transaction.

              § 141.42
              Lost pawn receipts or tickets.
              (a) Redemption may not be denied on the sole ground that the pledgor is unable to produce a receipt or pawn ticket, provided the pledgor gives a reasonable description of the pawned item or makes an actual identification of the item. The pledgee may require the pledgor to sign a receipt for the redeemed pawn. No person other than the pledgor may redeem pawn without a ticket.
              (b) No additional charges may be imposed for the loss of a pawn receipt or ticket.

              § 141.43
              Outstanding obligations owed to pledgee.
              If the pledgor tenders payment to be applied toward redemption of a pawned item, it shall be so applied by the pledgee, irrespective of other outstanding obligations owed by the pledgor to the pledgee. The pledgee may not deny the pledgor the right to redeem the pawn.

              § 141.44
              Insurance on pawn.
              (a) Any licensee under this part who lends money or extends credit with personal property as security and holds such property as a pledge shall maintain invault all risk insurance coverage running in favor of the pledgor for such property in amounts based upon a report issued monthly to the insurer. Such monthly report shall be an amount not less than the total agreed replacement value of all pawned items then held by the licensee.
              (b) A copy of the insurance policy shall be available for inspection at the licensee's place of business and a copy shall be filed with the Commissioner.

            Subpart E—Consumer Credit Transactions Other Than Pawn

              § 141.45
              Consumer credit applications.
              Any reservation business offering credit which is not secured by pawn shall provide an application for credit to any customer requesting credit. Within thirty (30) days of the date of application, the lender shall act upon the application and notify the customer in writing of the decision with the reason therefor. A business owner who reduces the amount of credit available to a customer or terminates a credit account shall provide written notice to the customer stating the reason for the reduction or termination of such credit.

              § 141.46
              Credit disclosure statements.
              Upon approval of a credit application the lender shall give the applicant the following information where applicable in a written disclosure statement:
              (a) The maximum credit limit of the account.
              (b) The conditions under which a finance charge may be imposed.
              (c) The period in which payment may be made without incurring a finance charge.
              (d) The method used in determining the balance on which the finance charge is calculated.
              (e) The method used to calculate the finance charge.
              (f) The periodic rates used and the range of balances to which each rate applies.
              (g) The conditions under which additional charges may be made and the method for calculating those charges.
              (h) A description of any lien that may be acquired on a customer's property.
              (i) The minimum payment that must be made on each billing.

              § 141.47
              Monthly billing statement.
              On all credit accounts on which a finance charge may be imposed and for all other credit accounts when requested by the customer, a licensee shall issue a monthly billing statement to the customer stating the following information where applicable:
              (a) The unpaid balance at the start of the billing period.
              (b) The amount and date of each extension of credit and identification of each item costing more than ten dollars ($10).
              (c) Payments made by a customer and other credits, including returns, rebates, and adjustments.
              (d) The finance charge shown in dollars and cents.
              (e) The rates used in calculating the finance charge plus the range of balances to which the finance charge was calculated.
              (f) The closing date of the billing cycle.
              (g) The unpaid balance at that time.

              § 141.48
              Translation of disclosure statements.
              Disclosure required by §§ 141.46 and 141.47 shall be made in writing regardless of the customer's ability to speak, read, or write the English language. Disclosure to non-English speaking persons shall be translated orally into the appropriate language.

              § 141.49
              Usury prohibited.
              No reservation business may take or receive money, goods, or other things of value for a loan or forbearance on a debt that exceeds in value the principal plus twenty-four percent (24 percent) per annum finance charge. Any reservation business contracting for, reserving, or receiving directly or indirectly, any greater amount shall forfeit the finance charge.

            Subpart F—Enforcement Powers, Procedures and Remedies

              § 141.50
              Penalty and forfeiture of merchandise.
              Any person other than an enrolled member of the tribe who either resides as a reservation business owner within the exterior boundaries of the Navajo, Hopi, or Zuni Reservations or introduces or attempts to introduce goods or to trade therein without a license shall forfeit all merchandise offered for sale to the Indians or found in the person's possession and is liable to a penalty of $1,352. This section may be enforced by commencing an action in the appropriate United States District Court under the provisions of 28 U.S.C. 1345.
              [40 FR 39835, Aug. 29, 1975, as amended at 81 FR 42481, June 30, 2016; 82 FR 7652, Jan. 23, 2017; 83 FR 5195, Feb. 6, 2018; 84 FR 15101, Apr. 15, 2019; 85 FR 9369, Feb. 19, 2020]

              § 141.51
              Authority to close unlicensed reservation businesses.
              The Commissioner shall close any reservation business subject to the provisions of this part that does not hold a valid license or temporary permit.

              § 141.52
              Revocation of license and lease and recovery on bond.
              The reservation business owner is subject to revocation of license and lease and recovery on the bond in whole or in part in the event of any violation of the regulations of this part after a show cause proceeding according to the provisions of § 141.56.
              [41 FR 22937, June 8, 1976. Redesignated at 47 FR 13327, Mar. 30, 1982]

              § 141.53
              Cease and desist orders.
              (a) If the Commissioner believes that violation of the regulations in this part is occurring, the Commissioner may order the person believed to be in violation to show cause according to the provisions of § 141.56 why a cease and desist order should not be issued.
              (b) If the person accused of the violations fails to show cause at the hearing why such an order should not issue, the Commissioner shall issue the order.
              (c) A person subject to a cease and desist order issued under this section who violates the order is liable to revocation of license after a show cause proceeding according to the provisions of § 141.56 of this part.

              § 141.54
              Periodic review of performance.

              (a) The Commissioner shall review licenses at ten (10) year intervals to determine whether or not the business is operating in accordance with these regulations and all other applicable laws and regulations and whether the business is adequately serving the economic needs of the community.
              (b) If, as a result of the review provided in paragraph (a) of this section, the Commissioner finds that the licensee has repeatedly violated these regulations, the Commissioner may order the licensee to show cause according to the provisions of § 141.56 why the licensee's license should not be revoked.
              (c) If the licensee fails to show cause why the license should not be revoked, the Commissioner shall revoke the license.

              § 141.55
              Price monitoring and control.
              (a) A reservation business may not charge its customers unfair or unreasonable prices. To insure compliance with this section, the Commissioner shall perform audits as provided in § 141.58. In performing those audits the Commissioner may inspect all original books, records, and other evidences of the cost of doing business. In addition, at least once a year the Commissioner shall cause to be made a survey of the prices of flour, sugar, fresh eggs, lard, coffee, ground beef, bread, cheese, fresh milk, canned fruit, and such other goods as the Commissioner deems appropriate in all stores licensed under these regulations and in a representative number of similar stores located in communities immediately adjoining the reservations. The results of the survey shall be posted publicly, sent to each licensed business, and made available to the appropriate agency of the tribal government. Copies of the survey shall be available at the office of the Area Director.
              (b) If the Commissioner finds that a reservation business is charging higher prices, especially for basic consumer commodities, than those charged on the average based on the studies conducted under the provisions of paragraph (a) of this section, the Commissioner may order the business owner to show cause under the provisions of § 141.56 why an order should not be issued to reduce prices. If the Commissioner determines that the prices charged by the business are not economically justified, based on all of the information, then the Commissioner may order the business to reduce its price on all items determined to be priced too high to a reasonable price as determined by the Commissioner, but in no event to a lower price than the cost of the item increased by a reasonable mark-up.

              § 141.56
              Show cause procedures.
              (a) When the Commissioner believes there has been a violation of this part the Commissioner shall serve the licensee with written notice setting forth in detail the nature of the alleged violation and stating what remedial action the Commissioner proposes to take.
              (b) The licensee shall have ten (10) days from the date of receipt of notice in which to show cause why the contemplated remedial action should not be ordered.
              (c) If within the ten (10) day period the Commissioner determines that the violation may be corrected and the licensee agrees to take the necessary corrective measure, the licensee shall be given the opportunity to take the necessary corrective measures.
              (d) If the licensee fails within a reasonable time to correct the violation or to show cause why the contemplated remedial action should not be ordered, the Commissioner shall order the appropriate remedial action.
              (e) If the Commissioner orders remedial action the licensee may appeal under the provisions of part 2 of this title not later than thirty (30) days after the date on which the remedial action is ordered.

              § 141.57
              Procedures to cancel liability on bond.
              (a) Any surety who wishes to be relieved from liability arising on a bond issued under this part shall file with the Commissioner a statement in writing setting forth the desire of the surety to be relieved of liability and the reasons therefor.

              (b) The surety shall mail a copy of the statement by certified mail, return receipt requested, to the last known address of the licensee named in the bond.

              (c) Twenty (20) days after the statement required in paragraph (b) of this section is mailed to the licensee and the statement required in paragraph (a) of this section is filed with the Commissioner, the surety from all liability thereafter arising on the bond.
              (d) If the licensee does not have other bond sufficient to meet the requirements of this part or has not executed and filed a new or substitute bond within twenty (20) days after the service of the statement, the Commissioner shall declare the license and lease void.
              (e) No surety is released from liability under the bond for claims which arose prior to the issuance of the Commissioner's order releasing the surety.
              [40 FR 39837, Aug. 29, 1975, as amended at 41 FR 3288, Jan. 22, 1976; 41 FR 22937, June 8, 1976. Redesignated at 47 FR 13327, Mar. 30, 1982]

              § 141.58
              Records, reports, and obligations of reservation business owners.
              (a) The Commissioner may, in consultation with interested persons and agencies, promulgate a model bookkeeping system for use in reservation businesses. Until such model bookkeeping system is promulgated, each business owner shall keep records in accordance with generally accepted accounting principles.
              (b) Each reservation business owner shall file with the Area Director an annual report on or before April 15 in a form approved by the Commissioner. Reports shall be subject to a yearly audit. The reports shall contain the names and respective interests of all persons participating in the business.
              (c) The business owner or an employee shall record all sales and purchases whether for cash or credit. If the business is on the Navajo Reservation the owner or an employee shall supply the customer with a copy of the sale transaction containing a description of the article purchased or sold, the date of the transaction, and the price. A cash register receipt complies with this paragraph for grocery or dry goods purchases for cash.
              (d) The licensee shall keep a duplicate copy of any writing required by paragraph (c) of this section for a period of not less than three (3) years and shall provide the customer or the customer's representative one copy of those writings upon request.
              [40 FR 39837, Aug. 29, 1975, as amended at 41 FR 3288, Jan. 22, 1976; 41 FR 13937, Apr. 1, 1976. Redesignated at 47 FR 13327, Mar. 30, 1982]

              § 141.59
              Customer complaint procedures.
              (a) Any customer of a licensee may file a complaint with the Commissioner alleging that the licensee has committed a violation of this part.
              (b) Upon receipt of a customer complaint the Commissioner shall initiate show cause proceedings under the provisions of § 141.56 of this part.
              (c) If the Commissioner fails to order remedial action within forty (40) days from the date the complaint is filed, the complainant may appeal under the provisions of part 2 of this title not later than seventy (70) days after the date the complaint is filed.
              (d) If the Commissioner orders remedial action, the complainant may appeal under the provisions of part 2 of this title not later than thirty (30) days after the date on which the remedial action is ordered.

          Pt. 142
          PART 142—ALASKA RESUPPLY OPERATION

            Sec.
            142.1
            Definitions.
            142.2
            What is the purpose of the Alaska Resupply Operation?
            142.3
            Who is responsible for the Alaska Resupply Operation?
            142.4
            For whom is the Alaska Resupply Operation operated?
            142.5
            Who determines the rates and conditions of service of the Alaska Resupply Operation?
            142.6
            How are the rates and conditions for the Alaska Resupply Operation established?
            142.7
            How are transportation and scheduling determined?
            142.8
            Is economy of operation a requirement for the Alaska Resupply Operation?
            142.9
            How are orders accepted?
            142.10
            How is freight to be prepared?
            142.11
            How is payment made?
            142.12
            What is the liability of the United States for loss or damage?
            142.13
            Information collection.

            Authority:
            5 U.S.C. 301; R.S. 463; 25 U.S.C. 2; R.S. 465; 25 U.S.C. 9; 42 Stat. 208; 25 U.S.C. 13; 38 Stat. 586.

            Source:
            62 FR 18516, Apr. 16, 1997, unless otherwise noted.

            § 142.1
            Definitions.

              Area Director means the Area Director, Juneau Area Office, Bureau of Indian Affairs.

              Bureau means Bureau of Indian Affairs.

              Department means Department of the Interior.

              Manager means Manager of the Seattle Support Center.

              Must is used in place of shall and indicates a mandatory or imperative act or requirement.

              Indian means any individual who is a member of an Indian tribe.

              Indian tribe means an Indian or Alaska Native tribe, band, nation, pueblo, village, or community that the Secretary of the Interior acknowledges to exist as an Indian tribe pursuant to Public Law 103-454, 108 Stat. 4791.

              Alaska Native means a member of an Alaska Native village or a Native shareholder in a corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act, 43 U.S.C. 1601 et seq.

            § 142.2
            What is the purpose of the Alaska Resupply Operation?
            The Alaska Resupply Operation provides consolidated purchasing, freight handling and distribution, and necessary transportation services from Seattle, Washington to and from other points in Alaska or en route in support of the Bureau's mission and responsibilities.

            § 142.3
            Who is responsible for the Alaska Resupply Operation?
            The Seattle Support Center, under the direction of the Juneau Area Office, is responsible for the operation of the Alaska Resupply Operation, including the management of all facilities and equipment, personnel, and procurement of goods and services.
            (a) The Seattle Support Center is responsible for publishing the rates and conditions that must be published in a tariff.
            (b) All accounts receivable and accounts payable are handled by the Seattle Support Center.
            (c) The Manager must make itineraries for each voyage in conjunction with contracted carriers. Preference is to be given to the work of the Bureau.
            (d) The Area Director is authorized to direct the Seattle Support Center to perform special services that may arise and to act in any emergency.

            § 142.4
            For whom is the Alaska Resupply Operation operated?
            The Manager is authorized to purchase and resell food, fuel, clothing, supplies and materials, and to order, receive, stage, package, store and transport these goods and materials for:
            (a) Alaska Native Tribes, Alaska Natives, Indian or Native owned businesses, profit or nonprofit Alaska Native corporations, Native cooperatives or organizations, or such other groups or individuals as may be sponsored by any Native or Indian organization.
            (b) Other Federal agencies and the State of Alaska and its subsidiaries, as long as the ultimate beneficiaries are the Alaska Natives or their communities.
            (c) Non-Indians and Non-Natives and commercial establishments that economically or materially benefit Alaska Natives or Indians.
            (d) The Manager must make reasonable efforts to restrict competition with private enterprise.

            § 142.5
            Who determines the rates and conditions of service of the Alaska Resupply Operation?
            The general authority of the Assistant Secretary—Indian Affairs to establish rates and conditions for users of the Alaska Resupply Operation is delegated to the Area Director.
            (a) The Manager must develop a tariff that establishes rates and conditions for charging users.
            (1) The tariff must be approved by the Area Director.
            (2) The tariff must be published on or before March 1 of each year.

            (3) The tariff must not be altered, amended, or published more frequently than once each year, except in an extreme emergency.
            (4) The tariff must be published, circulated and posted throughout Alaska, particularly in the communities commonly and historically served by the resupply operation.
            (b) The tariff must include standard freight categories and rate structures that are recognized within the industry, as well as any appropriate specialized warehouse, handling and storage charges.
            (c) The tariff must specify rates for return cargo and cargo hauled between ports.
            (1) The rates and conditions for the Bureau, other Federal agencies, the State of Alaska and its subsidiaries must be the same as that for Native entities.
            (2) Different rates and conditions may be established for non-Indian and non-Native commercial establishments, if those establishments do not meet the standard in § 142.4(c) and no other service is available to that location.

            § 142.6
            How are the rates and conditions for the Alaska Resupply Operation established?
            The Manager must develop tariff rates using the best modeling techniques available to ensure the most economical service to the Alaska Natives, Indian or Native owned businesses, profit or nonprofit Alaska Native corporations, Native cooperatives or organizations, or such other groups or individuals as may be sponsored by any Native or Indian organization, without enhancing the Federal treasury.
            (a) The Area Director's approval of the tariff constitutes a final action for the Department for the purpose of establishing billing rates.
            (b) The Bureau must issue a supplemental bill to cover excess cost in the event that the actual cost of a specific freight substantially exceeds the tariff price.
            (c) If the income from the tariff substantially exceeds actual costs, a prorated payment will be issued to the shipper.

            § 142.7
            How are transportation and scheduling determined?
            (a) The Manager must arrange the most economical and efficient transportation available, taking into consideration lifestyle, timing and other needs of the user. Where practical, shipping must be by consolidated shipment that takes advantage of economies of scale and consider geographic disparity and distribution of sites.
            (b) Itineraries and scheduling for all deliveries must be in keeping with the needs of the users to the maximum extent possible. Planned itineraries with dates set as to the earliest and latest anticipated delivery dates must b
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