termination Act. Contracts under the Act include "tribal governmental functions" as defined in § 271.2(q), “business related functions" as defined in § 271.2(d), and certain contractable trust resources programs or parts of programs as set forth in § 271.32. The nature of contracts with Indian entities which do not fall within the purview of the Act, including contracts which may provide for profit, and the conditions for entering into such contracts, are set forth in the regulations implementing the Act of June 25, 1910 (36 Stat. 861, 25 U.S.C. 47), commonly referred to as the "Buy Indian" Act.

(b) Section 104 of Title I of the Act provides authority for making grants for certain purposes. It is the Bureau's policy to make grants for the purpose specified in section 104 of the Act in lieu of contracts. Part 272 of this chapter gives the procedures and requirements for obtaining grants under section 104 of the Act.

(c) Nothing in these regulations shall be construed as:

(1) Affecting, modifying, diminishing, or otherwise impairing the sovereign immunity from suit enjoyed by an Indian tribe;

(2) Authorizing or requiring the termination of any trust responsibility of the United States with respect to the Indian People; or

(3) Permitting significant reduction in services to Indian people as a result of this part.

(d) Nothing in these regulations shall be construed to mandate a tribe to apply for a contract or contracts with the Bureau to plan, conduct, and administer all or parts of any Bureau program. Such applications under these regulations are strictly voluntary.

team program whenever a tribal organization elects to submit such a contract application through the Indian Technical Assistance Center and the tribal governing body(s) has authorized such application in its resolution pursuant to § 271.18(b).

(2) The term means the Director, Office of Administration, for matters regarding contracting for all or part of the construction, building and utilities programs which is contractable under this part and which is within the responsibility of the Division of Facilities Engineering.

(c) "Bureau" means the Bureau of Indian Affairs.

(d) "Business related function" means all programs authorized to be administered by the Bureau for the benefit of Indians enumerated as line items in the Bureau's annual budget request under Tribal Resources Development as the Subactivities of Business Enterprise Development, Credit and Indian Action Teams; Revolving Funds for Loans; Indian Loan Guaranty and Insurance Funds; and also programs or parts of programs connected with construction projects but exclusive of the actual construction of the project.

(e) "Commissioner” means the Commissioner of Indian Affairs, under the direction and supervision of the Assistant Secretary-Indian Affairs, is responsible for the direction of day-today operations of the Bureau of Indian Affairs.

(f) "Days" means calendar days.

(g) "Economic enterprise" means any commercial, industrial, agricultural, or business activity that is at least 51 percent Indian owned, established or organized for the purpose of profit. (h) "Indian tribe" means any Indian Tribe, Band, Nation, Rancheria, Pueblo, Colony or Community, including any Alaska Native village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688) which is federally recognized as eligible by the U.S. Government through the Secretary for the special programs and services provided by the Secretary to Indians because of their status as Indians.

(i) "Indian" means a person who is a member of an Indian tribe.

the

(j) "Previously private school" means a school (other than a Federal school formerly operated by Bureau) that is operated primarily for Indian students in any grade or grades from age 3 years through grade(s) 12; and, which at the time of application is controlled, and sanctioned or chartered by the governing body(s) of an Indian tribe(s).

(k) "Recontracting" means the entering into a contract with a tribal organization which holds a contract for the same program.

(1) "Resolution" means the formal manner in which the tribal government expresses its legislative will in accordance with its organic documents. In the absence of such organic document, a written expression adopted pursuant to tribal practices will be acceptable.

(m) "Secretary" means the Secretary of the Interior.

(n) "Superintendent" means the official in charge of a Bureau of Indian Affairs agency office except that:

(1) The term means the chief, Indian Technical Assistance Center, for matters regarding contracting for all or part of the Indian action team program whenever a tribal governing body elects to submit such a contract application through the Indian Technical Assistance Center and so indicates in its resolution pursuant to § 271.18(b).

(2) The term means the Chief, Division of Facilities Engineering, for matters regarding contracting for all or part of the construction, building, and utilities program which is contractable under this part and which is within the responsibility of the Division of Facilities Engineering.

(o) "Tribal Chairman" means tribal chairman, governor, chief or other person recognized by the tribal government as its chief executive officer.

(p) "Tribal government," "tribal governing body" and "tribal council" means the recognized governing body of an Indian tribe.

(q) "Tribal governmental function" means all programs authorized to be administered by the Bureau for the benefit of Indians enumerated as line

items in the Bureau's annual budget requests under the Activities of Education and Indian Services, the Subactivities of Direct Employment and Road Maintenance, and those programs related to Irrigation and Power Operation and Maintenance identified as a part of the subactivity minerals, mining, irrigation and power under the Activity of Tribal Resources Development.

(r) "Tribal organization" means the recognized governing body of any Indian tribe; or any legally established organization of Indians or tribes which is controlled, sanctioned, or chartered by such governing body or bodies or which is democratically elected by the adult members of the Indian community to be served by such organization and which includes the maximum participation of Indians in all phases of its activities; Provided, That a request for a contract must be made by the tribe that will receive services under the contract; Provided further, That in any case where a contract is let to an organization to perform services benefiting more than one Indian tribe, the approval of each such Indian tribe shall be a prerequisite to the letting of such contract.

(s) "Trust resources" means natural resources, land, water, minerals, funds or property, asset, or claim, including any intangible right or interest in any of the foregoing, which is held by the United States in trust for any Indian tribe or any Indian individual or which is held by any Indian tribe or Indian individual subject to a restriction on alienation imposed by the United States.

(t) "Trust responsibility" means, for the purposes of this part only, to protect, manage, develop and approve authorized transfers of interests in trust resources held by Indian tribes and Indian individuals to a standard of the highest degree of fiducary responsibility.

(u) "Assistant Secretary-Indian Affairs" means the Assistant SecretaryIndian Affairs who discharges the authority and responsibility of the Secretary for activities pertaining to Indians and Indian Affairs.

[40 FR 51286, Nov. 4, 1975, as amended at 41 FR 5098, Feb. 4, 1976; 43 FR 37440, Aug. 23, 1978; 45 FR 13448, Feb. 29, 1980]

§ 271.3 Revision or amendment of regulations.

In order to make any substantive revisions or amendments to the regulations in this part, the Secretary shall take the following actions:

(a) Consult with Indian tribes and national and regional Indian organizations to the extent practicable about the need for revision or amendment and consider their views in preparing the proposed revision or amendment.

(b) Present the proposed revision or amendment to the Committees on Interior and Insular Affairs of the United States Senate and House of Representatives.

(c) Publish the proposed revisions or amendments in the FEDERAL REGISTER as proposed rulemaking to provide adequate notice to, and receive comments from, all interested parties.

(d) After consideration of all comments received, publish the regulations in the FEDERAL REGISTER in final form not less than 30 days before the date they are made effective.

(e) Annually consult with Indian tribes and national and regional Indian organizations about the need for revision or amendment, and consider their views in preparing the revision or amendment.

(f) Nothing in this section shall preclude Indian tribes or national or regional Indian organizations from initiating request for revisions or amendments subject to paragraphs (a), (b), (c) and (d) of this section.

§ 271.4 Statement of policy.

(a) The Congress has recognized the obligation of the United States to respond to the strong expression of the Indian people for self-determination by assuring maximum Indian participation in the direction of educational as well as other Federal services to Indian communities so as to render such services more responsive to the needs and desires of those communities.

(b) The Congress has declared its commitment to the maintenance of the Federal Government's unique and

continuing relationship with and responsibilities to the Indian people through the establishment of a meaningful Indian self-determination policy which will permit an orderly transition from Federal domination of programs for and services to Indians to effective and meaningful participation by the Indian people in the planning, conduct, and administration of those programs and services.

(c) It is the policy of the Bureau to facilitate the efforts of Indian tribes to plan, conduct, and administer programs, or portions thereof, which the Bureau is authorized to administer for the benefit of Indians and to facilitate the coordination of all Federal and other programs on Indian reservations.

(d) It is the policy of the Bureau to continually encourage Indian tribes to become increasingly knowledgeable about Bureau programs and the opportunities Indian tribes have regarding them; however, it is the policy of the Bureau to leave to Indian tribes the initiative in making requests for contracts and to regard self-determination as including the decision of an Indian tribe not to request contracts.

(e) It is the policy of the Bureau not to impose sanctions on Indian tribes with regard to contracting or not contracting; however, the special resources made available to facilitate the efforts of those Indian tribes which do wish to contract should be made known to all tribes, as should the current realities of funding and Federal personnel limitations.

(f) Contracting is one of several mechanisms by which Indian tribes can exercise their right to plan, conduct, and administer programs or portions thereof which the Secretary is authorized to administer for the benefit of Indians. Another mechanism afforded Indian tribes is the use of a grant, as provided in Part 272 of this chapter, or other resources, to plan the manner in which it wishes the Bureau to operate a program or portion thereof.

(g) Contracting by its very nature places Bureau officials in the dual position of assisting Indian tribes, in many instances, by furnishing technical assistance in preparation of con

tract proposals, and of carrying out their fiscal and administrative responsibilities as officials of the Federal Government. It is recognized that very often these two positions are in opposition to each other. The Act and these regulations are designed to address this problem to the degree practicable. The Commissioner, Area Directors and Superintendents, as line officers of the Bureau, are expected to balance these two positions within the framework of the regulations in this part.

(h) The regulations in this part are not meant to and do not change the eligibility criteria which individuals must meet to be eligible for any program currently operated by the Bureau. The eligibility criteria for each Bureau program is given in the part of 25 CFR Chapter I, which deals with that program. A contractor shall use the existing Bureau eligibility criteria in operating all or parts of a Bureau program under a contract under this part unless a waiver is obtained from the Commissioner. The Commissioner may not waive eligibility criteria established by statute. The Commissioner may waive eligibility criteria established by regulation in 25 CFR Chapter I.

§ 271.5

Information collection.

The Office of Management and Budget has approved, under 44 U.S.C. 3501 et seq., the information collection requirements in §§ 271.14, 271.17,

271.18, and 271.21 under assigned control number 1076-0088; § 271.33 under control number 1076-0090; and §§ 271.41, 271.42, 271.44, 271.46, 271.47, and 271.49 under control number 1076-0091. The information for #10760088 is being collected to determine the eligibility of applicants, to protect the service population, and safeguard Federal funds and other resources. The information is used to determine eligibility and to permit the Bureau to administer, monitor and evaluate contract programs. The information for #1076-0090 is being collected to ensure that the trust responsibilities are not abrogated and to protect, preserve and perpetuate the resources of an Indian tribe or individual. The information will be used to determine eligibility of

trust related activities or functions under proposed contract applications, to protect tribal resources, to insure fair return on such resources and to assure a satisfactory standard of contract performance. The information for #1076-0091 is being collected to insure proper administration, monitoring and evaluation of contracts, as well as to protect Federal funds and the service recipient population. The information will be used to assess program performance, to monitor contract expenditures, and to insure fairness and uniformity of services, including the maintenance of current and accurate records which allow for clear audit facilitating data. Responses are required to obtain a benefit.

[53 FR 21995, June 13, 1988]

Subpart B-Application Process

§ 271.11 Eligible applicants.

Any tribal organization is eligible to apply for a contract or contracts with the Bureau to plan, conduct, and administer all or parts of Bureau programs under section 102 of the Act. However, before the Bureau can enter into a contract with a tribal organization, it must be requested to do so by the Indian tribe or tribes to be served by the contract in accordance with § 271.18.

§ 271.12 Contractable Bureau programs.

(a) Tribal organizations are entitled to contract with the Bureau to plan, conduct, and administer all or parts of any program which the Bureau is authorized to administer for the benefit of Indians. All or parts of any program include:

(1) Any part of a Bureau program which is divisible from the remainder of the program so long as the contract does not significantly reduce benefits to Indians served by the non-contracted part(s) of the program. However, to the extent that it is within the Bureau's existing authority and the program or part thereof involves only one tribe and one Bureau Agency or Area Office, the benefits provided to Indians by the non-contracted part(s) of the program may be reduced at the request of the tribe. When the program

40-083 0-90--21

or part thereof serves more than one tribe, the benefits provided by the non-contracted part(s) of the program may be reduced when all of the tribes served consent to a reduction.

(2) A single employee position only when the functions to be performed provide a direct service to Indians and meets the criteria in paragraph (a) of this section.

(3) Programs or parts of programs or services that are authorized but not currently operated or provided by the Bureau.

(4) Operation of, or services provided by, previously private schools.

(5) Alterations and repairs in direct support of a contracted program. Individual construction projects are not contracted under title I of the act, but can be contracted under other authorities.

(6) Architect and engineer services.

(b) Paragraph (a) of this section also applies to trust resources programs or portions thereof. Additional criteria for contractable trust resources programs, or portions thereof, are given in § 271.32.

[40 FR 51286, Nov. 4, 1975, as amended at 43 FR 37440, Aug. 23, 1978]

§ 271.13 Application information.

Application instructions and related materials may be obtained from Superintendents, Area Directors, and the Commissioner.

§ 271.14 Contents of contract application.

Application for a contract under this part shall contain the following information in sufficient detail to permit evaluation of the application in light of the declination criteria set forth in § 271.15. No further detail is, or shall be, required.

(a) Full name, address and telephone number of the tribal organization which is applying for the contract.

(b) Full name of tribe(s) with which the tribal organization is affiliated.

(c) Full name of tribe(s) directly benefiting or receiving services from the proposed contract.

(d) Documentation of the tribal request to contract as required § 271.18.

in

(e) Date of submission to the Bureau and the name of the office where the application was submitted.

(f) Signature by the authorized representative of the tribal organization and the date thereof.

(g) Estimated number of Indian people who will receive benefits or services from the contract, based on available data including tribal records. (h) Descriptive narrative of what functions, Bureau programs, or portions of programs the tribal organization wants to contract for.

(i) Plan of operations, which shall include but is not limited to:

(1) A statement of tribal goals and objectives to be obtained by the contract.

(2) The organization, methods and procedures to be used to accomplish the tribal goals and objectives.

(3) [Reserved]

(4) The budget showing the amount and sources of funding and other resources required for the contract.

(5) Staffing plan, including extent, if any, that Bureau personnel may be utilized. (See Part 275 of this chapter for staffing options the applicant may wish to consider).

(6) The evaluation criteria and control systems that the tribal organization will use to measure progress and accomplishment and to assure that the quality and quantity of actual performance conforms to the requirements of the plans.

(j) Statement of tribal organization's substantive knowledge of the program, part of a program or functions to be contracted.

(k) Description of personnel system and position descriptions for key personnel.

(1) Listing of equipment, facilities, and buildings needed to carry out the contract and how the tribal organization intends to obtain them.

(m) Certification by a licensed accountant that the bookkeeping and accounting procedures which the tribal organization presently uses meet the standards of § 276.7 of this chapter. In place of the certification; the tribal organization may submit a written agreement to establish a bookkeeping and accounting system that meets the standards of § 276.7 of this chapter