Last updated on September 12th, 2023 at 07:50 am
Title 25—Indians–Volume 1
CHAPTER I—BUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR
SUBCHAPTER A—PROCEDURES AND PRACTICE
PART 1—APPLICABILITY OF RULES OF THE BUREAU OF INDIAN AFFAIRS
§ 1.1 [Reserved]
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.
§ 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.
§ 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.
§ 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.
PART 2—APPEALS FROM ADMINISTRATIVE DECISIONS
Subpart A—Purpose, Definitions, and Scope of this Part
§ 2.100 What is the purpose of this part?
If you are adversely affected by certain decisions of a Bureau of Indian Affairs (Bureau) official, you can challenge (appeal) that decision to a higher authority within the Department of the Interior (Department) by following the procedures in this part. Except as otherwise provided in this part or in other applicable laws and regulations, you must exhaust the appeal mechanisms available under this part before you can seek review in a Federal district court under the Administrative Procedure Act (5 U.S.C. 704).
§ 2.101 What terms do I need to know?
Administrative record means all documents and materials that were considered directly or indirectly, or were presented for consideration, in the course of making the decision that is the subject of the appeal.
Adversely affected means the decision on appeal has caused or is likely to cause injury to a legally protected interest.
Agency means the Department of the Interior, inclusive of all its offices and bureaus.
(1) A written request for administrative review of a decision-maker’s decision or inaction that is claimed to adversely affect the interested party making the request; or
(2) The process you must follow when you seek administrative review of a decision-maker’s decision or inaction.
Appellant means the person or entity who files an appeal.
AS–IA means the Assistant Secretary—Indian Affairs, Department of the Interior. AS–IA also means the Principal Deputy Assistant Secretary—Indian Affairs or other official delegated the authority of the AS–IA when the office of the AS–IA is vacant, when the AS–IA is unable to perform the functions of the office, or when the AS–IA is recused from the matter.
BIA means the Bureau of Indian Affairs.
BIE means the Bureau of Indian Education.
BTFA means the Bureau of Trust Funds Administration.
Days mean calendar days, unless otherwise provided. Days during which the agency is closed because of a lapse in appropriations do not count as days for purposes of calculating deadlines for actions by Federal officials under this part.
Decision means an agency action that permits, approves, or grants permission, requires compliance, or grants or denies requested relief.
Decision-maker means the Indian Affairs official whose decision or inaction is being appealed.
Effective means that the decision will be implemented by the Department.
Final agency action means a decision that represents the consummation of the agency’s decision-making process and is subject to judicial review under 5 U.S.C. 704. Final agency actions are immediately effective unless the decision provides otherwise.
IBIA means the Interior Board of Indian Appeals within the Office of Hearings and Appeals.
IED means the Office of Indian Economic Development.
Indian Affairs means all offices and personnel subject to the authority of the AS–IA.
Interested party means a person or entity whose legally protected interests are adversely affected by the decision on appeal or may be adversely affected by the decision of the reviewing official.
Local Bureau Official (“LBO”) means the Superintendent, Field Representative, or other BIA official who serves as the primary point of contact between BIA and a Tribe or individual Indian.
Notice of Appeal (“NOA”) means a written document that an appellant files with the reviewing official and serves on the decision-maker and interested parties.
OIG means the Office of Indian Gaming.
OJS means the Office of Justice Services.
OSG means the Office of Self Governance.
Participant means the appellant, any interested party who files a response as provided for in § 2.209, and any Tribe that is an interested party.
Person means an individual human being or other entity.
Reviewing official means an Indian Affairs official who is authorized to review and issue decisions on appeals filed under this part, and the IBIA, unless otherwise provided in this part.
Trust Asset means trust lands, natural resources, trust funds, or other assets held by the Federal Government in trust for Indian Tribes and individual Indians.
We, us, and our, mean the officers and employees of Indian Affairs.
You (in the text of each section) and I (in the section headings) mean an interested party who is considering, pursuing, or participating in an administrative appeal as provided for in this part.
§ 2.102 What may I appeal under this part?
(a) Subject to the exceptions in this part and other applicable law or regulation, you may appeal:
(1) Any discrete, written decision made by a decision-maker that adversely affects you, including a determination by the decision-maker that she or he lacks either the duty or authority to take the action that you have requested; and
(2) Inaction by Indian Affairs officials by following the procedures in subpart F of this part.
(b) You may not appeal in the following circumstances.
(1) You may not separately appeal the issuance of component documents of the administrative record, including, but not limited to, appraisals or market studies, reports, studies, investigations, notices of impoundment or public sale, recommendations, or National Environmental Policy Act documents. The adequacy of these types of documents cannot be challenged unless and until an appealable decision is made in reliance upon these documents.
(2) You may not appeal an agency’s notification to you that it is pursuing or is considering pursuing action against you in Federal district court, unless separate regulations in this title require you to follow administrative appeal procedures in accordance with this part or other regulations such as those listed in § 2.103 to appeal the notification. Such notifications include, but are not limited to, notices that could lead the agency to pursue actions for money damages against you, such as actions for trespass, ejectment, eviction, nuisance, conversion, or waste to Indian land under the Federal common law or statute.
(3) You may not appeal final agency actions (though you may be able to seek review in Federal district court).
(c) Any challenge to preliminary, procedural, or intermediate actions by a reviewing official must be submitted to the reviewing official prior to that official’s issuing the decision. The reviewing official will address such challenges in the final decision. Such a challenge is not a separate appeal.
§ 2.103 Are all appeals subject to this part?
Not all appeals are subject to this part. Decisions by some Indian Affairs officials may be appealed to the Interior Board of Indian Appeals, subject to the regulations at 43 CFR part 4. Other regulations govern appeals of administrative decisions regarding certain topics. Table 1 to this section lists some decision topics that are subject to different appeals regulations, in whole or in part, and where to find those regulations.
Table 1 to § 2.103
|For appeal rights related to . . .||Refer to . . .|
|Access to student records||25 CFR part 43.|
|Acknowledgment as a federally recognized Indian Tribe||25 CFR part 83.|
|Adverse employment decisions against Bureau of Indian Affairs employees||43 CFR part 20.|
|Any decision by a Court of Indian Offenses||25 CFR part 11.|
|Appointment or termination of contract educators||25 CFR part 38.|
|Debts owed by Federal employees||5 CFR part 550.|
|Determination of heirs, approval of wills, and probate proceedings||43 CFR part 4; 43 CFR part 30; 25 CFR part 16; 25 CFR part 17.|
|Indian School Equalization Program student count||25 CFR part 39.|
|Eligibility determinations for adult care assistance, burial assistance, child assistance, disaster, emergency and general assistance, and the Tribal work experience program||25 CFR part 20.|
|Certain adverse enrollment decisions||25 CFR part 62.|
|Freedom of Information Act requests||43 CFR part 2.|
|Grazing permits for trust or restricted lands||25 CFR part 166.|
|Indian Reservation Roads Program funding||25 CFR part 170.|
|Leasing of trust or restricted lands||25 CFR part 162.|
|Matters subject to the Contract Disputes Act||48 CFR part 33; 48 CFR part 6101.|
|Privacy Act requests||43 CFR part 2.|
|Restricting an Individual Indian Money account||25 CFR part 115.|
|Rights-of-way over or across trust or restricted lands||25 CFR part 169.|
|Secretarial elections||25 CFR part 81.|
|Self-Determination contracts||25 CFR part 900.|
|Self-Governance compacts||25 CFR part 1000.|
|Student rights and due process||25 CFR part 42.|
|Tribally controlled colleges and universities||25 CFR part 41.|
|Departmental quarters||41 CFR part 114.|
§ 2.104 How will I know what decisions are appealable under this part?
(a) When an Indian Affairs official makes a decision that is subject to an appeal under this part, she or he will transmit the decision to interested parties by U.S. Mail or, upon request, by electronic mail. Unless the decision is immediately effective, and except for decisions that are subject to appeal to IBIA, the official will include the following notice of appeal rights at the end of the decision document:
This decision may be appealed by any person or entity who is adversely affected by the decision. Appeals must be submitted to the—[appropriate reviewing official]—at—[address, including email address]. The appeals process begins when you file with the reviewing official a notice of appeal, complying with the provisions of 25 CFR 2.205–2.207.
Deadline for Appeal. Your notice of appeal must be submitted in accordance with the provisions of 25 CFR 2.214 within 30 days of the date you receive notice of this decision pursuant to 25 CFR 2.203. If you do not file a timely appeal, you will have failed to exhaust administrative remedies as required by 25 CFR part 2. If no appeal is timely filed, this decision will become effective at the expiration of the appeal period. No extension of time may be granted for filing a notice of appeal.
Appeal Contents and Packaging. Your notice of appeal must comply with the requirements in 25 CFR 2.214. It must clearly identify the decision being appealed. If possible, attach a copy of this decision letter. The notice and the envelope in which it is mailed should be clearly labeled, “Notice of Appeal.” If electronic filing is available, “Notice of Appeal” must appear in the subject line of the email submission. Your notice of appeal must list the names and addresses of the interested parties known to you and certify that you have sent them and this office copies of the notice by any of the mechanisms permitted for transmitting the NOA to the BIA.
Where to Send Copies of Your Appeal.
[For appeals to IA officials, not IBIA]: In addition to sending your appeal to—[the reviewing official],—you must send a copy of your appeal to this office at the address on the letterhead—[if an email address is included in the letterhead, you may submit your appeals documents via email, with “Notice of Appeal” in the subject line of the email submission].
[For appeals to the IBIA]: If the reviewing official is the IBIA, you must also send a copy of your appeal to the AS–IA and to the Associate Solicitor, Division of Indian Affairs. If the reviewing official is the IBIA, your appeal will be governed by the IBIA’s regulations, at 43 CFR part 4.
Assistance. If you can establish that you are an enrolled member of a federally recognized Tribe and you are not represented by an attorney, you may, within 10 days of receipt of this decision, request assistance from this office in the preparation of your appeal. Our assistance is limited to serving your filings on the interested parties and allowing limited access to government records and other documents in the possession of this office. We cannot obtain an attorney for you or act as your attorney on the merits of the appeal.
(b) If a decision-maker issues a decision that does not include notice of appeal rights, the decision-maker will provide written notice of appeal rights and the decision may be appealed as follows:
(1) If the decision-maker discovers within 30 days of issuing the decision that the decision did not include notice of appeal rights, then the decision-maker will provide written notice of appeal rights to interested parties, and inform them that they may appeal the decision within 30 days from the date of receipt of the notice. If no appeal is filed by the new deadline, the interested parties will have failed to exhaust administrative remedies as required by this part and the decision will become effective.
(2) If the decision-maker does not discover within 30 days of issuing the decision that the decision did not include notice of appeal rights and no administrative appeal is filed within 30 days of the issuance of the decision, then the decision becomes effective 31 days after it was issued.
(3) If the decision-maker discovers, more than 30 days but less than 365 days, after the date of the decision that the decision did not include notice of appeal rights, then the decision-maker will immediately notify the interested parties that the decision was issued without the requisite notice of appeal rights. If the decision has not actually been implemented, the decision-maker shall stay the implementation of the decision and reissue the decision with the appeal rights notice as provided in this section. If the decision has been implemented, the decision maker shall notify the interested parties of that fact, and notify them that they may file a challenge to the decision in Federal court, or pursue the administrative appeal process set out in this section.
§ 2.105 Who will receive notice of decisions that are appealable under this part?
Except as provided in other regulations governing specific types of decisions (see § 2.103), the decision-maker will transmit a copy of all appealable decisions to all known interested parties at the addresses the decision-maker has on file for them.
§ 2.106 How does this part comply with the Paperwork Reduction Act?
The information collected from the public under this part is cleared and covered by Office of Management and Budget (OMB) Control Number 1076–NEW. Please note that a Federal Agency may not conduct or sponsor, and you are not required to respond to, a collection of information unless it displays a currently valid OMB control number.
Subpart B—Appealing Administrative Decisions
§ 2.200 Who may appeal a decision?
You have a right to appeal a decision made by an Indian Affairs official if you can show, through credible statements, that you are adversely affected by the decision.
§ 2.201 Do I need a lawyer in order to file a document in an appeal?
No. You may represent yourself. If you are represented by someone else, your representative must meet the standards established in 43 CFR part 1 and must provide documentation of his or her authority to act on your behalf.
§ 2.202 Who decides administrative appeals?
Except where a specific section of this part sets out a different appellate hierarchy, table 1 to this section identifies the reviewing officials for appeals under this part:
Table 1 to § 2.202
|Official issuing the decision||Reviewing official or IBIA|
|Agency Superintendent or Field Representative, BIA||Regional Director, BIA.|
|Regional Director, BIA||IBIA.|
|District Commander, OLES||Deputy Director BIA, Office of Justice Services (OJS).|
|Deputy Director, BIA||Director, BIA.|
|Principal of a Bureau operated School||Education Program Administrator.|
|Education Program Administrator||Associate Deputy Director, BIE.|
|Associate Deputy Director, BIE||Director, BIE.|
|President of a Bureau operated Post-Secondary School||Director, BIE.|
|BTFA decision-maker||Director, BTFA.|
|Director of: OIG; IED; OSG||Appropriate Deputy Assistant Secretary—Indian Affairs.|
|Deputy Assistant Secretary—Indian Affairs; Director, BTFA||AS–IA.|
§ 2.203 How long do I have to file an appeal?
(a) You have 30 days after you receive a copy of the decision you are appealing to file a Notice of Appeal, except as provided in § 2.104(b).
(b) We will presume that you have received notice of the decision 10 days after the date that the decision was mailed to you, if the decision-maker mailed the document to the last address the decision-maker has on file for you.
(c) If the reviewing official receives proof that the document was delivered before the expiration of the 10-day period, you are presumed to have received notice on the date of delivery, and you have 30 days from that date to file an appeal.
§ 2.204 Will the reviewing official grant a request for an extension of time to file a Notice of Appeal?
No. No extensions of time to file a Notice of Appeal will be granted.
§ 2.205 How do I file a Notice of Appeal?
(a) To file a Notice of Appeal to an Indian Affairs official, you must submit the Notice of Appeal to the reviewing official identified in the decision document’s notice of appeal rights, as prescribed in § 2.104. Your submission must comply with § 2.214.
(b) If you are appealing to the IBIA, you must comply with IBIA’s regulations, set out at 43 CFR part 4.
§ 2.206 What must I include in my Notice of Appeal?
In addition to meeting the requirements of § 2.214, your Notice of Appeal must include an explanation of how you satisfy the requirements of standing set out in § 2.200 and a copy of the decision being appealed, if possible.
§ 2.207 Do I have to send the Notice of Appeal to anyone other than the reviewing official?
(a) Yes. You must provide copies of your Notice of Appeal to the decision-maker and all interested parties known to you. If you are an individual Indian and are not represented by an attorney, you may request that we make the copies for you and mail your appeal documents to all interested parties.
(b) If you are appealing to the IBIA, you must also send a copy of your Notice of Appeal to the AS–IA and to the Associate Solicitor for Indian Affairs at the same time you send the appeal to the IBIA.
§ 2.208 What must I file in addition to the Notice of Appeal?
No later than 10 days after filing your Notice of Appeal, you must submit to the reviewing official, the decision-maker, and interested parties a statement of reasons that:
(a) Explains why you believe the decision was wrong;
(b) Identifies relevant information or evidence you believe the decision-maker failed to consider;
(c) Describes the relief you seek;
(d) Provides all documentation you believe supports your arguments; and
(e) Complies with the requirements of § 2.214.
§ 2.209 Who may file a response to the statement of reasons?
Any interested party may file a response to the statement of reasons, thereby becoming a participant. The decision-maker may also file a response to the statement of reasons.
§ 2.210 How long does the decision-maker or an interested party have to file a response?
The decision-maker or an interested party has 30 days after receiving a copy of the statement of reasons to file a response.
§ 2.211 What must a response to the statement of reasons include?
(a) A response to a statement of reasons must comply with § 2.214. In addition, the response must:
(1) State when the interested party or decision-maker submitting the response received the statement of reasons;
(2) Explain how the interested party submitting the response is adversely affected by the decision being appealed or may be adversely affected by the reviewing official’s decision; and
(3) Explain why the interested party or decision maker submitting the response believes the arguments made in the appellant’s Notice of Appeal and statement of reasons are right or wrong.
(b) The response may also include statements and documents supporting the position of the interested party or decision-maker submitting.
§ 2.212 Will the reviewing official accept additional briefings?
(a) Yes. The appellant may file a reply with the reviewing official within 21 days of receiving a copy of any response brief.
(b) Any interested party may, within 10 days after receiving the table of contents of the administrative record (AR), request copies of some or all of the AR. Such party may submit a supplemental brief within 10 days after receiving the requested documents.
(c) Any interested party may ask the reviewing official for permission to file additional briefing. The reviewing official’s decision on whether to grant the request is not appealable.
(d) No documents other than those specified in this part and those permitted by the reviewing official under paragraph (c) of this section may be filed.
(e) The reviewing official will not consider documents not timely filed.
§ 2.213 What role does the decision-maker have in the appeal process?
(a) The decision-maker is responsible for:
(1) Compiling the administrative record;
(2) Sending the administrative record to the reviewing official within 20 days of the decision-maker’s receipt of the Notice of Appeal; and
(3) Making available a copy of the administrative record for review by interested parties. When the decision-maker transmits the administrative record to the reviewing official, the decision-maker shall transmit to the interested parties a copy of the table of contents of the administrative record. Interested parties may view the administrative record at the office of the decision-maker. Interested parties may request copies of all or part of the administrative record. Where reproduction and transmission of the administrative record imposes costs on BIA exceeding $50, BIA may charge the requestor for those costs. BIA shall not incur such costs without the requestor’s approval. The decision-maker shall respond to requests for documents in the administrative record within 30 days of receipt of the request, either by providing the requested documents or identifying a date by which the documents shall be provided. The decision-maker shall redact the documents provided to the requestor as required by law (e.g., the Privacy Act). The decision-maker may withhold information in the administrative record, invoking privileges available in civil litigation; such withholding being subject to judicial review. Provision of documents in the administrative record to an interested party under this part is not governed by the Freedom of Information Act. Failure of a decision-maker to respond to a request for documents under this section may be appealed as provided in subpart F of this part.
(b) If a decision-maker believes that a compacting or contracting Tribe possesses Federal records that are relevant to the analysis of the appeal, the decision-maker may request that the Tribe produce the documents. Within two weeks of receiving the decision-maker’s request, the Tribe shall either provide the requested documents to the decision-maker or explain why it is not providing the documents. This section does not apply to Tribal records. See 25 U.S.C. 5329(b).
(c) The decision-maker may file a response to the statement of reasons.
§ 2.214 What requirements apply to my submission of documents?
Except where a section in this part (or 43 CFR part 4 with respect to submissions to the IBIA) sets out other requirements, you must comply with the following provisions:
(a) Information required in every submission. (1) The submitter’s contact information, consisting of name, mailing address, telephone number, and email address if any; or the name, mailing address, telephone number, and email address of the submitter’s representative;
(2) A certificate of service by the submitter that the submission was served on all interested parties known to the submitter, a list of parties served, and the date and method of service; and
(3) The signature of the interested party or his or her representative.
(b) Filing documents. A document is properly filed with an agency official by:
(1) Personal delivery, either hand delivery by an interested party or via private mail carrier, during regular business hours to the person designated to receive mail in the immediate office of the official;
(2) United States mail to the facility officially designated for receipt of mail addressed to the official. The document is considered filed by mail on the date that it is postmarked; and
(3) Electronic mail (email) is permissible only in accordance with the provisions in paragraph (i) of this section.
(c) Service generally. A copy of each document filed in a proceeding under this part must be served by the filing party on the relevant agency official(s) and all other known interested parties. If an interested party is represented by an attorney, service of any document shall be made upon such attorney. Where an interested party is represented by more than one attorney, service upon one of the attorneys shall be sufficient.
(d) Record address. Every person who files a document in an appeal shall, at the time of the initial filing in the matter, provide his or her contact information. Such person must promptly inform the decision-maker or reviewing official of any change in address. Any successors in interest of such person shall promptly inform the decision-maker or reviewing official of his or her interest in the matter and provide contact information. Agency officials and other parties to an appeal shall have fulfilled their service requirement by transmitting documents to a party’s last known address.
(e) Computation of time for filing and service. Documents must be filed within the deadlines established in this part (or by 43 CFR part 4 for filings submitted to the IBIA), or as established by Department officials in a particular matter. Except as otherwise provided by law, in computing any period of time prescribed for filing and serving a document, the day upon which the decision or document to be appealed from or answered was served, or the day of any other event after which the designated period of time begins to run, is not included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday, Federal legal holiday, or other day on which the office to which the document is addressed is not conducting business, in which event the period runs until the end of the next day on which the office to which the document is addressed is conducting business. When the time prescribed or allowed is 7 days or less, intermediate Saturdays, Sundays, Federal legal holidays, and other nonbusiness days shall be excluded in the computation.
(f) Extensions of time. (1) The deadline for filing and serving any document may be extended by the agency official before whom the proceeding is pending, except that the deadline for filing a Notice of Appeal may not be extended.
(2) A request for an extension of time must be filed within the time allowed for the filing or serving of the document.
(3) A request for extension of time must be filed with the same office as the document that is the subject of the request.
(g) Formatting. All submissions, except exhibits, must be typed in 12-point font, (double-spaced) using a standard 8
(h) Page limits for particular filings are set out in the sections addressing those filings. Attachments and exhibits not drafted by or for the submitter do not count toward the page limit.
(i) Submitting and serving documents by email. Submitting documents by email to an agency official is only permitted when the receiving official has notified the known interested parties that email submissions are acceptable. Documents may only be served via email on interested parties who have stated, in writing, their willingness to accept service by email. No single email submission may exceed 10 megabytes (MB). Submissions may be divided into separate emails for purposes of complying with this requirement. Filings submitted by email shall be in PDF format. Email submissions that arrive at the agency official’s office after 5:00 p.m. shall be deemed to have arrived on the next work day.
(j) Non-compliant submissions. An agency official may decline to consider a submission that does not comply with the requirements in this section, or take other action she/he deems appropriate. A non-compliant submission is nonetheless a Federal record, and must be preserved as other Federal records.
Subpart C—Effectiveness and Finality of Decisions
§ 2.300 When is a decision effective?
(a) Agency decisions that are subject to further administrative appeal become effective when the appeal period expires without an appeal being filed, except as provided elsewhere in this chapter.
(b) When an agency decision is effective pursuant to paragraph (c) of this section or § 2.714, the administrative appeal will proceed unless an interested party challenges the agency decision in Federal court.
(c) Agency decisions that are subject to further administrative appeal and for which an appeal is timely filed may be made immediately effective by the reviewing official based on public safety, Indian education safety, protection of trust resources, or other public exigency.
(1) A decision-maker whose decision has been appealed may ask the reviewing official to make the appealed decision immediately effective or the reviewing official may make the appealed decision immediately effective on his or her own initiative.
(2) A reviewing official’s decision to make an appealed decision immediately effective must explain why public safety, Indian education safety, protection of trust resources, or other public exigency justifies making the decision immediately effective. Any challenge to the decision to put an appealed decision into immediate effect shall be incorporated into the ongoing appeal.
(3) A decision by a reviewing official (other than the IBIA) to place an appealed decision into immediate effect must be in writing and include the following notice of appeal rights:
As explained above, based on concerns about public safety, Indian education safety, protection of trust resources, or other exigency, I have placed the challenged decision into immediate effect, as authorized by 25 CFR 2.300. I will continue with my review of the matter on appeal unless and until an interested party files suit in federal court challenging the agency decision.
§ 2.301 When is a decision a final agency action?
An agency decision that is not subject to administrative appeal is a final agency action and immediately effective when issued unless the decision provides otherwise.
Subpart D—Appeal Bonds
§ 2.400 When may the reviewing official require an appeal bond?
(a) Any interested party who may suffer a financial loss or damage to Indian Trust Assets as a result of an appeal may ask the reviewing official to require the appellant to post an appeal bond.
(b) The reviewing official may decide on his or her own initiative to require an appeal bond in accordance with this subpart.
§ 2.401 How will the reviewing official determine whether to require an appeal bond?
The reviewing official may require an appeal bond if the party requesting the appeal bond can demonstrate that the delay caused by the appeal may result in a measurable and substantial financial loss or damage to Indian Trust Assets. The amount of the appeal bond will be commensurate with the estimated financial loss or damage to Indian Trust Assets.
§ 2.402 What form of appeal bond will the reviewing official accept?
The reviewing official will only accept an appeal bond that has a market value at least equal to the total bond amount in one, or a combination of, the following forms.
(a) Negotiable U.S. Treasury securities, accompanied by a statement granting the AS–IA full authority to sell the securities and direct the proceeds to the party who was harmed by the appellant’s unsuccessful appeal.
(b) Certificates of deposit that indicate on their face that AS–IA approval is required prior to redemption by any party.
(c) An irrevocable letter of credit issued by a federally insured financial institution and made payable to the Office of the AS–IA. The letter of credit must have an initial expiration date of not less than two years from the date of issuance and be automatically renewable for at least one year.
(d) A surety bond issued by a company approved by the U.S. Department of the Treasury.
§ 2.403 May I appeal the decision whether to require an appeal bond?
No. The reviewing official’s decision whether to require an appeal bond is not appealable.
§ 2.404 What will happen to my appeal if I fail to post a required appeal bond?
If you are required to post a bond and fail to do so within the time allowed by the reviewing official to post the bond, the reviewing official will dismiss your appeal.
§ 2.405 How will the reviewing official notify interested parties of the decision on a request for an appeals bond?
When the reviewing official decides whether to require an appeal bond, she or he will provide the interested parties with written notice of the decision
Subpart E—Deciding Appeals
§ 2.500 May an appeal be consolidated with other appeals?
Yes. The reviewing official may, either on his or her own initiative or upon request by the decision-maker or interested party, consolidate identical or similar appeals filed by you and others or consolidate multiple appeals that you file that also contain identical or similar issues.
§ 2.501 May an appealed decision be partially implemented?
Yes. The reviewing official may identify any parts of a decision-maker’s decision that have not been appealed, to allow the decision-maker to implement those parts of the decision. The reviewing official will notify interested parties of a determination to implement unchallenged components of the decision-maker’s decision. An interested party who disagrees with the reviewing official’s determination may seek reconsideration by the reviewing official. A request for reconsideration must be filed within 15 days of issuance of the determination.
§ 2.502 May I withdraw my appeal once it has been filed?
Yes. You may withdraw your appeal at any time before the reviewing official issues a decision. To withdraw an appeal, you must write to the reviewing official and all participants stating that you want to withdraw your appeal. If you withdraw your appeal, it will be dismissed by the reviewing official. While the dismissal of a withdrawn appeal is without prejudice, the appeals time frame set out in this part will be unaffected by a withdrawn appeal. Therefore, any refiling of a withdrawn appeal must be within the original filing deadline established pursuant to § 2.104.
§ 2.503 May an appeal be dismissed without a decision on the merits?
Yes, the reviewing official may dismiss an appeal without a decision on the merits when:
(a) You are late in filing your appeal;
(b) You lack standing because you do not meet the requirements of § 2.200 for bringing an appeal;
(c) You have withdrawn the appeal;
(d) You have failed to pay a required appeal bond;
(e) The reviewing official lacks the authority to grant the requested relief;
(f) If you are represented and your representative does not meet the standards established in 43 CFR part 1 related to eligibility to practice before the Department, and you have failed to substitute yourself or an eligible representative after being given an opportunity to do so; or
(g) The reviewing official determines there are other circumstances that warrant a dismissal and explains those circumstances in the dismissal order.
§ 2.504 What information will the reviewing official consider?
(a) The reviewing official will consider:
(1) The administrative record for the decision, prepared by the decision-maker under § 2.213;
(2) All relevant documents submitted by the decision-maker and participants that were filed in accordance with applicable deadlines; and
(3) Laws, regulations, Secretarial Orders, Solicitor’s Opinions, policies, implementing guidance, and prior judicial and administrative decisions that are relevant to the appeal.
(b) If the reviewing official considers documentation that was not included in the administrative record, the reviewing official will:
(1) Provide a copy of that documentation to the decision-maker and interested parties; and
(2) Establish a schedule for the decision-maker and interested parties to review and comment on the documentation.
§ 2.505 When will the reviewing official issue a decision on an appeal?
(a) The reviewing official (other than the IBIA) will issue a written decision, including the basis for the decision, within 90 days after the latest of:
(1) The filing of the statement of reasons;
(2) The filing of any responses, replies, or supplemental briefs under §§ 2.209 through 2.212; or
(3) The filing of any comments on additional material under § 2.504(b).
(b) A reviewing official (other than the IBIA) may, for good cause and with notice to the decision-maker and participants, extend the deadline for the official’s decision one time by no more than 90 days.
§ 2.506 How does the reviewing official notify the appellant and other interested parties of a decision?
The reviewing official will send the decision to the decision-maker and interested parties.
§ 2.507 How do I appeal a reviewing official’s decision?
(a) To appeal a reviewing official’s decision that is not a final agency action, you must file your appeal in accordance with the instructions for appeal contained in the decision.
(b) The decision will include instructions that briefly describe how to appeal the decision, to whom the appeal should be directed, and the deadline for filing an appeal, and will refer interested parties to the regulations governing the appeal.
(c) If you are appealing to the IBIA, you must comply with IBIA’s regulations, set out at 43 CFR part 4.
(d) Except where a specific section of this part sets out a different appellate hierarchy, table 1 to this paragraph (d) indicates the official to whom subsequent appeals should be addressed.
Table 1 to Paragraph (
|Reviewing official (or IBIA) whose decision is being appealed||Official to whom the appeal is addressed|
|Principal of a Bureau operated school||Education Program Administrator.|
|Education Program Administrator||Associate Deputy Director, Bureau of Indian Education.|
|Associate Deputy Director, BIE||Director, BIE.|
|President of a Bureau operated post-secondary school||Director, BIE.|
|Deputy Director BIA, Office of Justice Services (OJS)||IBIA.|
|Deputy Assistant Secretary—Indian Affairs||AS–IA.|
|AS–IA||(Decision is final for the Department).|
|IBIA||(Decision is final for the Department).|
§ 2.508 May the AS–IA take jurisdiction over an appeal to the IBIA?
Yes. The AS–IA has 40 days from the date on which the IBIA received your Notice of Appeal to take jurisdiction from the IBIA. The AS–IA will notify the IBIA in writing of the assumption of jurisdiction and request the administrative record of the appeal. At any time in the 40 days, the AS–IA may notify the IBIA that she or he is not going to take jurisdiction over an appeal, at which point the IBIA will assign a docket number to the appeal under its regulations in 43 CFR part 4. If the IBIA does not receive written notice from the AS–IA within the 40-day period of the AS–IA’s intent to take jurisdiction over the appeal, the IBIA will assign a docket number to your appeal.
§ 2.509 May I ask the AS–IA to take jurisdiction over my appeal?
No. The AS–IA will not consider a request from any interested party to take jurisdiction over an appeal.
§ 2.510 How will the AS–IA handle my appeal?
If the AS–IA takes jurisdiction over your appeal, or if an appeal is made to the AS–IA in accordance with table 1 to paragraph (d) in § 2.507, the following procedures shall apply:
(a) Within 10 days of receipt of an appeal, or of assumption of jurisdiction over an appeal to the IBIA, the AS–IA shall transmit to the official who issued the decision being appealed and all known interested parties a notice that will include information on when and how to file briefs, access to the administrative record, and may include instructions for filing briefs via email.
(b) Briefs shall comply with § 2.214, and be submitted as follows, unless the AS–IA specifies otherwise:
(1) Initial briefs are invited from the appellant, all interested parties, and the official whose decision is on appeal. Initial briefs may not exceed 30 pages and shall be due within 21 days of the date of the AS–IA’s notice. Initial briefs must include certification of service on the reviewing official and all other interested parties identified in the AS–IA’s initial notice to interested parties;
(2) Answering briefs shall be due within 35 days of the date of the AS–IA’s notice. Answering briefs shall not exceed 15 pages; and
(3) For good cause shown, the AS–IA may extend deadlines, may allow handwritten briefs, may provide for different page limits, and may permit submission of reply briefs.
(c) The AS–IA shall render a decision on the appeal within 60 days of the end of briefing. The AS–IA may, for good cause and with notice to the participants, extend the deadline for issuing a decision by no more than 60 days.
(d) The AS–IA may summarily affirm the decision of the official whose decision is on appeal based on the record before the official whose decision is on appeal.
(e) The AS–IA may delegate to the Principal Deputy Assistant Secretary—Indian Affairs the authority and responsibility for rendering a final agency decision on an appeal over which the AS–IA is exercising jurisdiction.
§ 2.511 May the Secretary decide an appeal?
Yes. Nothing in this part will be construed as affecting the Secretary’s authority to take jurisdiction over an appeal as set out in 43 CFR 4.5(a).
§ 2.512 May the Director of the Office of Hearings and Appeals take jurisdiction over a matter?
Yes. Nothing in this part will be construed as affecting the authority vested in the Director of the Office of Hearings and Appeals to take jurisdiction over matters in front of the IBIA, as provided in 43 CFR 4.5(b).
Subpart F—Appealing Inaction of an Agency Official
§ 2.600 May I compel an agency official to take action?
(a) Yes. If a decision-maker fails to take action on a written request for action that you believe the decision-maker is required to take, you may make the decision-maker’s inaction the subject of appeal.
(b) Before filing an appeal with the next official in the decision-maker’s chain of command, you must:
(1) Send a written request to the decision-maker, asking that he or she take the action originally asked of him or her;
(2) Identify the statute, regulation, or other source of law that you believe requires the decision-maker to take the action being requested;
(3) Describe the interest adversely affected by the decision-maker’s inaction, including a description of the loss, impairment or impediment of such interest caused by the inaction; and
(4) State that, unless the decision-maker either takes action on the written request within 15 days of receipt of your request, or establishes a date by which a decision will be made, you will appeal the decision-maker’s inaction in accordance with this subpart.
(c) You must include a copy of your original request to the decision-maker, or other documentation establishing the date and nature of the original request.
§ 2.601 When must a decision-maker respond to a request to act?
A decision-maker receiving a request as specified in § 2.600 has 15 days from receiving the request to issue a written response. The response may be a decision, a procedural order that will further the decision-making process, or a written notice that a decision will be rendered by a date no later than 60 days from the date of the request.
§ 2.602 What may I do if the decision-maker fails to respond?
If the decision-maker does not respond as provided for in § 2.601, you may appeal the decision-maker’s continued inaction to the next official in the decision-maker’s chain of command. For purposes of this subpart:
(a) BIA’s chain of command is as follows:
(1) Local Bureau Official;
(2) Regional Director (find addresses on the Indian Affairs website, currently at https://www.bia.gov/regional-offices);
(3) Director, Bureau of Indian Affairs (1849 C Street NW, MS 4606, Washington, DC 20240); and
(4) Assistant Secretary—Indian Affairs (1849 C Street NW, MS 4660, Washington, DC 20240).
(b) BIE’s chain of command is as follows:
(1) Principal of Bureau-operated school;
(2) Education Program Administrator;
(3) Associate Deputy Director, BIE;
(4) Director, BIE; and
(c) The Office of Justice Services’ chain of command is as follows:
(1) Deputy Director BIA, Office of Justice Services;
(2) Director, BIA; and
(d) You may appeal inaction by an official within the Office of the AS–IA to the AS–IA.
§ 2.603 How do I submit an appeal of inaction?
You may appeal the inaction of a decision-maker by sending a written “appeal from inaction of an official” to the next official in the decision-maker’s chain of command. You must enclose a copy of the original request for decision to which the decision-maker has not responded and a copy of the request for decision that you sent to the decision-maker pursuant to § 2.600. If filing by email is permitted, “Appeal of Inaction” must appear in the subject line of the email submission.
§ 2.604 What will the next official in the decision-maker’s chain of command do in response to my appeal?
An official who receives an appeal from the inaction of a decision-maker that complies with the requirements of this subpart will, within 15 days of receiving the appeal, formally direct the decision-maker to respond within 15 days of the decision-maker’s receipt of the official direction. The official will send to all interested parties a copy of his or her instructions to the decision-maker.
§ 2.605 May I appeal continued inaction by the decision-maker or the next official in the decision-maker’s chain of command?
Yes. If the official fails to timely direct the decision-maker to respond to the request for decision, or if the decision-maker fails to respond within the time frame identified by the official pursuant to § 2.604, you may appeal the continued inaction by either agency official to the next highest officer in the chain of command above both agency officials. Your appeal must be submitted as provided for in §§ 2.602 and 2.603. The official will respond as provided for in § 2.604.
§ 2.606 May I appeal inaction by a reviewing official on an appeal from a decision?
(a) Yes. If a reviewing official fails to take action on the appeal within the timeframes established in § 2.505, any interested party may appeal the reviewing official’s inaction as provided for in this subpart.
(b) Inaction by the IBIA or by the AS–IA is not subject to appeal under this part.
§ 2.607 What happens if no official responds to my requests under this subpart?
If you exhaust all the provisions of this subpart and the Department has still not taken action on your request, the Department’s inaction may be subject to judicial review pursuant to 5 U.S.C. 706(1).
Subpart G—Special Rules Regarding Recognition of Tribal Representative
§ 2.700 What is the purpose of this subpart?
The purpose of this subpart is to expedite administrative review of a Bureau decision to recognize, or to decline to recognize, a Tribal representative. Provisions in subparts A through F of this part also apply, except that, if a provision in this subpart conflicts with a provision in subparts A through F of this part, the provision in this subpart will govern.
§ 2.701 May a Local Bureau Official’s decision to recognize, or decline to recognize, a Tribal representative be appealed?
Yes. A written decision by the LBO to recognize or decline to recognize a Tribal representative is appealable.
§ 2.702 How will I know what decisions are appealable under this subpart?
When an LBO issues a Tribal representative recognition decision, the official will include the following notice of appeal rights at the end of the decision document:
YOU HAVE 10 DAYS TO APPEAL THIS DECISION.
This decision may be appealed to the —[appropriate reviewing official. If the LBO is a Regional Director, the reviewing official is the Director of the BIA]—at—[address, including email address if filing by email is permitted].
Deadline for Appeal. Your notice of appeal must be submitted as provided for in 25 CFR 2.214 within 10 (ten) days of the date you receive notice of this decision. Your notice of appeal must explain how you satisfy the standing requirements in 25 CFR 2.200. If you do not file a timely appeal, you will have failed to exhaust administrative remedies required by these regulations. If no appeal is timely filed, this decision will become effective at the expiration of the appeal period. No extension of time may be granted for filing a notice of appeal.
§ 2.703 How do I file a Notice of Appeal of a Tribal representative recognition decision?
To file a Notice of Appeal, you must submit, as provided in § 2.214, the Notice of Appeal to the reviewing official identified in the decision document’s notice of appeal rights, as prescribed in § 2.702.
§ 2.704 How long do I have to file an appeal of a Tribal representative recognition decision?
You have 10 days after you receive the Tribal representative recognition decision to file a Notice of Appeal.
§ 2.705 Is there anything else I must file?
Yes. You must file a statement of reasons setting out your arguments in support of your appeal, and include any supporting documentation you wish to present to the reviewing official. Your statement of reasons must comply with the requirements set out in § 2.214.
§ 2.706 When must I file my statement of reasons?
You must submit your statement of reasons to the reviewing official and interested parties no later than 10 days after filing your Notice of Appeal.
§ 2.707 May the LBO and interested parties file a response to the statement of reasons?
Yes. Any interested party, as well as the LBO, may file a response to the statement of reasons, thereby becoming a participant.
§ 2.708 How long do interested parties have to file a response?
(a) The LBO and any interested party have 10 days after receiving a copy of the statement of reasons to file a response, which must be served on the appellant, the LBO and other interested parties.
(b) For good cause shown, the reviewing official may allow the appellant to file a reply brief.
§ 2.709 What will the LBO do in response to my appeal?
Upon receipt of your Notice of Appeal, the LBO must transmit, within 15 days, the administrative record to the reviewing official and transmit your Notice of Appeal to the AS–IA.
§ 2.710 When will the reviewing official decide a Tribal representative recognition appeal?
The reviewing official will issue a written decision, including the basis for the decision, within 30 days after the latest of the filing of your statement of reasons or interested parties’ response.
§ 2.711 May the decision deadline be extended?
Yes. A reviewing official may, for good cause and with notice to the interested parties and the LBO, extend the deadline for the reviewing official’s decision one time, for no more than an additional 30 days.
§ 2.712 May the AS–IA take jurisdiction over the appeal?
Yes. The AS–IA may take jurisdiction over the appeal at any time before the reviewing official issues a final decision.
§ 2.713 May I ask the AS–IA to take jurisdiction over the appeal?
No. The AS–IA will not consider a request from any interested party to take jurisdiction over the appeal.
§ 2.714 May the reviewing official’s decision on Tribal representative recognition be appealed?
Yes. The reviewing official’s decision is immediately effective, but not final for the Department. Therefore, any participant may appeal the reviewing official’s decision as provided for in this part, or pursue judicial review in Federal court. Notwithstanding any other regulation, the reviewing official’s Tribal representative recognition decision shall remain in effect and binding on the Department unless and until the reviewing official’s decision is reversed by superior agency authority or reversed or stayed by order of a Federal court.
Subpart H—Appeals of Bureau of Trust Funds Administration Statements of Performance
§ 2.800 What is the purpose of this subpart?
(a) The purpose of this subpart is to allow an account holder to dispute the accuracy of the activity contained within a Statement of Performance.
(b) The appeals process in this subpart is summarized as follows:
(1) Account holders receive a Statement of Performance at least each quarter. In limited circumstances, account holders may only receive a Statement of Performance annually based upon activity.
(2) An account holder may submit an Objection to the Statement of Performance (“Objection”) to the decision-maker.
(3) The decision-maker will render a Decision on the Objection to the Statement of Performance (“Decision”).
(4) An account holder may submit an Appeal of the Decision on the Objection to the Statement of Performance (“Appeal”) to the Director, BTFA.
(5) The Director, BTFA will render the BTFA’s ruling on the account holder’s appeal.
(6) An account holder may appeal the BTFA’s ruling to the AS–IA.
(7) The AS–IA’s decision on the account holder’s appeal is a final agency action.
§ 2.801 What terms do I need to know for this subpart?
Account holder means a Tribe or a person who owns the funds in a Tribal or Individual Indian Money (IIM) account that is maintained by the Secretary.
Appeal of the Decision on the Objection to the Statement of Performance (“Appeal”) means your appeal of the decision-maker’s decision.
Basis of Objection to the Statement of Performance (“Basis of Objection”) means the documentation you submit supporting your Objection to the Statement of Performance.
BTFA means the Bureau of Trust Funds Administration.
BTFA’s Ruling means the ruling issued by Director, BTFA on your Appeal of the decision-maker’s decision.
Decision on the Objection to the Statement of Performance (“Decision”) means the decision-maker’s decision on your Objection to the Statement of Performance.
Decision-maker means the Director, Office of Trust Analysis and Research within the Bureau of Trust Funds Administration who reviews your Objection to the Statement of Performance.
Objection to the Statement of Performance (“Objection”) means the document you submit to the decision-maker, alleging errors in your Statement of Performance.
Reviewing official means the Director, BTFA.
Statement of Performance (SOP) means the document that is issued to each account holder that identifies:
(1) The source, type, and status of the funds;
(2) The beginning balance;
(3) The gains and losses;
(4) Receipts and disbursements; and
(5) The ending balance.
§ 2.802 What must I do if I want to challenge the accuracy of activity within a Statement of Performance?
If you want to challenge the accuracy of activity within a Statement of Performance, you must submit an Objection to the Statement of Performance within 60 calendar days of the statement date.
§ 2.803 Is every account holder allowed to challenge the accuracy of activity within a Statement of Performance?
Yes. However, if a Tribe has entered into a settlement with the United States and that settlement contains language concerning the challenge of a statement of performance, the language in the settlement agreement will control.
§ 2.804 May I challenge the underlying action that generated the proceeds deposited into my account under this subpart?
No. This subpart is solely for the purpose of challenging the accuracy of the activity within the SOP. If you want to challenge the underlying action that generated the proceeds deposited into your trust account, you must contact the BIA agency responsible for the action.
§ 2.805 May I challenge anything other than the activity in the account under this subpart?
No. The purpose of this subpart is to provide a method for account holders to dispute the activity in the account.
§ 2.806 What must my Objection to the Statement of Performance contain?
Your Objection to the Statement of Performance must be in writing and contain all of the following:
(a) Your name, address, and telephone number;
(b) The statement date of the specific Statement of Performance that you are challenging;
(c) A copy of the Statement of Performance being challenged; and
(d) The Basis of Objection.
§ 2.807 What must my Basis of Objection contain?
Your Basis of Objection must be in writing and contain:
(a) A statement that details all of the errors or omissions that you believe exist in the Statement of Performance, with as much explanatory detail as possible;
(b) A statement describing the corrective action that you believe BTFA should take; and
(c) All information that you believe relates to the error(s) or omission(s) in the specific Statement of Performance.
§ 2.808 To whom must I submit my Objection to the Statement of Performance?
(a) You must submit your Objection to the Statement of Performance to the decision-maker at: U.S. Department of the Interior, Bureau of Trust Funds Administration, Attn: Director, Office of Trust Analysis and Research, 1849 C Street NW, Washington, DC 20240.
(b) Your submission must comply with the provisions of § 2.214.
§ 2.809 When must I submit my Objection to the Statement of Performance?
You must submit your Objection to the Statement of Performance within 60 calendar days of the statement date on the Statement of Performance you are challenging.
§ 2.810 Will the decision-maker acknowledge receipt of my Objection to the Statement of Performance?
Yes. The decision-maker will provide an acknowledgement of receipt of your Objection to the Statement of Performance within 10 calendar days of receipt in the form of a letter that will be mailed to the address you provided in your Objection.
§ 2.811 May I request an extension of time to submit my Objection to the Statement of Performance?
Yes. Within 60 calendar days of the statement date on your Statement of Performance, you may request an extension of time, submitted in compliance with the provisions of § 2.214, from the decision-maker to submit your Objection to the Statement of Performance. The decision-maker may grant one 30-day extension of time in which to submit your Objection to the Statement of Performance.
§ 2.812 May I appeal the denial of my request for an extension of time?
No. The denial of an extension of time to submit the Objection to the Statement of Performance is not appealable.
§ 2.813 If I fail to submit either an Objection to the Statement of Performance or the Basis of Objection within the applicable deadlines, what is the consequence?
If you fail to submit either the Objection to the Statement of Performance or the Basis of Objection within the applicable deadlines:
(a) The Statement of Performance at issue will be deemed accurate and complete for all purposes;
(b) You will have waived your right to invoke the remainder of the review and appeals process as to that Statement of Performance; and
(c) You will have failed to exhaust the administrative remedies available within the Department.
§ 2.814 How long will the decision-maker have to issue a Decision on my Objection to the Statement of Performance?
The decision-maker will have 30 calendar days from the date of receipt of your Basis of Objection to the Statement of Performance to issue a Decision on your Objection to the Statement of Performance. If your Basis of Objection is not received when you submit your Objection to the Statement of Performance and an extension of time was not asked for and granted, the decision-maker will dismiss your Objection to the Statement of Performance.
§ 2.815 What information will the Decision on my Objection to the Statement of Performance contain?
The Decision on your Objection to the Statement of Performance will contain an explanation as to whether the decision-maker agrees or disagrees with your Objection to the Statement of Performance. If the decision-maker agrees with your Objection to the Statement of Performance, a correction will be made and reflected on your Statement of Performance. If the decision-maker disagrees with your Objection to the Statement of Performance, the Decision will provide information about your right to appeal the Decision.
§ 2.816 May I appeal the Decision on my Objection to the Statement of Performance?
Yes. The Decision issued by the decision-maker is appealable to the reviewing official, who is the Director, BTFA.
§ 2.817 What must my Appeal of the Decision on the Objection to the Statement of Performance contain?
Your Appeal must comply with the instructions in § 2.214 and must include the statement date of the specific Statement of Performance that you are appealing.
§ 2.818 To whom must I submit my Appeal of a Decision on my Objection to the Statement of Performance?
You must submit your Appeal, as provided in § 2.214, to the reviewing official, at: U.S. Department of the Interior, Bureau of Trust Funds Administration, Attn: Director, BTFA, 1849 C Street NW, Washington, DC 20240.
§ 2.819 When must my Appeal be filed?
You must file your Appeal within 30 calendar days of the date that the decision-maker issued the Decision.
§ 2.820 May I submit any other documents in support of my Appeal?
No. You may not submit any other documents in support of your Appeal. The reviewing official may only consider the documents that were reviewed by the decision-maker.
§ 2.821 May I request an extension of time to submit my Appeal?
No. You must submit the Appeal within 30 calendar days of the issuance of the Decision. The reviewing official will not grant an extension of time to submit your appeal of a Decision.
§ 2.822 What happens if I do not submit my Appeal within the 30-day deadline?
If you fail to submit your Appeal within the 30-day deadline:
(a) The decision-maker’s decision will be effective;
(b) The Statement of Performance at issue will be deemed accurate and complete;
(c) You will have waived your right to invoke the remainder of the review and appeals process as to that same Statement of Performance; and
(d) You will have failed to exhaust the administrative remedies available within the Department.
§ 2.823 When will the reviewing official issue the BTFA’s ruling?
The reviewing official will issue the BTFA’s ruling within 30 calendar days of receipt of your Appeal of a Decision on your Objection to the Statement of Performance. The ruling will provide information about your right to further appeal.
§ 2.824 May I appeal the BTFA’s ruling?
Yes. The BTFA’s ruling may be appealed to the AS–IA. The procedures, requirements, and deadlines set out in §§ 2.816, 2.817, and 2.819 through 2.821 apply to appeals to the AS–IA under this subpart. Submit your Appeal to: U.S. Department of the Interior, Office of the Assistant Secretary—Indian Affairs, MS 4660, 1849 C Street NW, Washington, DC 20240, as provided in § 2.214.
§ 2.825 When does the Statement of Performance or a Decision become final?
(a) Statements of Performance, and decisions rendered by Department officials under this subpart, are final when the deadline for submitting an Objection to the Statement of Performance or an Appeal has expired and the account holder has not submitted an Objection to the Statement of Performance or an Appeal.
(b) A decision rendered by the AS–IA is a final agency action.
Subpart I—Alternative Dispute Resolution
§ 2.900 Is there a procedure other than a formal appeal for resolving disputes?
Yes. We strongly encourage parties to work together to reach a consensual resolution of disputes whenever possible. Use of an alternative approach to dispute resolution can save time and money, produce more durable and creative solutions, and foster improved relationships. It may be appropriate and beneficial to consider the use of alternative dispute resolution (ADR) processes and techniques at any stage in a dispute. The parties may request information from the decision-maker on the use of an ADR process.
§ 2.901 How do I request alternative dispute resolution?
If you are interested in pursuing alternative dispute resolution, you may contact the reviewing official to make a request to use ADR for a particular issue or dispute.
§ 2.902 When do I initiate alternative dispute resolution?
We will consider a request to use alternative dispute resolution at any time. If you file a Notice of Appeal, you may request the opportunity to use a consensual form of dispute resolution.
§ 2.903 What will Indian Affairs do if I request alternative dispute resolution?
If all interested parties concur, the reviewing official may stay (discontinue consideration of) the appeal while the parties pursue ADR. Where the parties agree to use ADR, Indian Affairs and other interested parties may seek assistance from the Department of the Interior’s Office of Collaborative Action and Dispute Resolution (CADR). CADR can assist in planning and facilitating an effective collaboration or dispute resolution process. Parties are encouraged to consider best practices for engagement, including but not limited to, the use of neutral facilitation and other collaborative problem-solving approaches to promote effective dialogue and conflict resolution.
PART 5—PREFERENCE IN EMPLOYMENT
§ 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.
§ 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.
§ 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.
§ 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.).
SUBCHAPTER B—LAW AND ORDER
PART 10—INDIAN COUNTRY DETENTION FACILITIES AND PROGRAMS
§ 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.
§ 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.
§ 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.”
§ 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.
§ 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.
PART 11—COURTS OF INDIAN OFFENSES AND LAW AND ORDER CODE
Subpart A—Application; Jurisdiction
§ 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
(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
§ 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.
§ 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.
§ 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.
§ 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.
§ 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.
§ 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.
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.
(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.|
§ 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;
(4) Methyl ethyl;
(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.
§ 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.
§ 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.
§ 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.
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.
§ 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 absen