(b) Attorneys may be employed by Indian tribes not organized under the Act of June 18, 1934, under contracts subject to approval under 25 U.S.C. 81 and the Reorganization Plan No. 3 of 1950, 5 U.S.C. 481, note, by the Secretary of the Interior or his authorized representative. (c) Any action of the authorized representative of the Secretary of the Interior which approves, disapproves or conditionally approves a contract pursuant to paragraph (a) or (b) of this section shall be final. (d) Practice of such attorneys before the Bureau of Indian Affairs and the Department of the Interior is subject to the requirements of 43 CFR 1.1-1.7. (5 U.S.C. 301) [27 FR 11548, Nov. 24, 1962) FIVE CIVILIZED TRIBES 72.30 Contents and approval of contracts. 72.31 Negotiation of contract. 72.32 72.33 72.34 Notice from the principal officer. Tentative form of contract. 72.35 Execution in quintuplet. CROSS REFERENCE: For recognition of attorneys and agents to represent claimants, see Part 71 of this subchapter. TRIBES ORGANIZED UNDER THE INDIAN REORGANIZATION ACT AUTHORITY: §§ 72.1 to 72.6 issued under sec. 16, 48 Stat. 987; 5 U.S.C. 301; 25 U.S.C. 476. § 72.1 Contracts with organized tribes. (a) Negotiation and execution of tribal attorney contracts with Indian tribes organized pursuant to the Indian Reorganization Act of June 18, 1934 (48 Stat. 984; 25 U.S.C. 461-479), as amended, shall be in accordance with the provisions of the approved constitution or charter of the respective tribes. (b) The Secretary of the Interior or his authorized representative is authorized to approve pursuant to 25 U.S.C. 476 the selection of counsel and the amount of fees and expenses to be paid under any such contract. [27 FR 11548, Nov. 24, 1962] § 72.2 Admission to practice. Attorneys employed by tribes organized under the Indian Reorganization Act, shall be required to be admitted to practice before the Interior Depart ment and the bureaus thereof, under the provisions of the act of July 4, 1884 (23 Stat. 101; 5 U.S.C. 493). [22 FR 10538, Dec. 24, 1957] CROSS REFERENCE: For rules and regulations governing admission to practice before the Interior Department and the bureaus thereof, see 43 CFR Part 1. § 72.3 Tentative form of contract. A tribal council or representative body having authority to employ legal counsel in behalf of an organized ribe, may, if it desires, obtain a tentative form of contract by written request directed to the office of any area director or agency superintendent, or to the Commissioner of Indian Affairs. Requests for forms should include a statement of the scope of the intended employment; that is, whether an attorney is desired for investigation and prosecution of tribal claims against the United States, or as a general legal counsel in connection with the ordinary business of the tribe, or specific problems on which legal advice is desired, or specific matters requiring representation in court or before committees of Congress and the departments of the Government. The period for which an attorney is desired should be stated. [27 FR 11549, Nov. 24, 1962] § 72.4 Report of Superintendent. Contracts executed by organized tribes should be transmitted to the Area Director by the Superintendent, with a report based upon references and independent inquiry concerning the qualifications of the attorney and his ability to perform the services required by the contract, and including the superintendent's recommendation with reference to approval of the contract. [27 FR 11549, Nov. 24, 1962] § 72.5 Fees and expenses. Funds held in the treasury of an organized tribe may be used by the tribe for payment of fees and expenses of an attorney. A contract providing for payment of fees and/or expenses should be accompanied by an appropriation act passed by the governing body of the tribe in accordance with the requirements of the tribal constitution or charter, appropriating sufficient tribal funds for payment of fees and/or expenses as provided by the contract. The amount of tribal funds held in the tribal treasury, not otherwise appropriated and available for payment of fees and expenses, should be stated. [22 FR 10538, Dec. 24, 1957] § 72.6 Funds in Federal Treasury. Under rulings of the Comptroller General and section 27 of the act of May 18, 1916 (39 Stat. 158; 25 U.S.C. 123), tribal funds held in the United States Treasury may not be used for payment of attorney fees and expenses in the absence of express authorization by Congress. [22 FR 10538, Dec. 24, 1957] TRIBES NOT ORGANIZED UNDER THE INDIAN REORGANIZATION ACT AUTHORITY: §§ 72.7 to 72.26 issued under 5 U.S.C. 301. Interpret or apply R.S. 2103; 25 U.S.C. 81. § 72.7 Statutes governing. The negotiation and execution of tribal attorney contracts with tribes not organized under the Indian Reorganization Act must be in strict accordance with the requirements of section 2103 of the Revised Statutes of the United States (25 U.S.C. 81). [22 FR 10538, Dec. 24, 1957] § 72.8 Selection of counsel. Except as stated in §§ 72.12-72.15 and 72.26, a tribal attorney or technical specialist and tribal delegates to execute a contract shall be selected by a general council or meeting of the tribe, to be called by the superintendent of the particular reservation. [37 FR 10440, May 23, 1972] § 72.9 Record of council proceedings. A report should be made of the proceedings of the council, certified to by the Superintendent or his representative as correct, and a copy thereof § 72.13 Limitation of authority. The tribal business committee or other representative body, when proceeding under § 72.12 should carefully investigate, with the assistance of the superintendent if desired, the qualifications of available attorneys, bearing in mind the purpose for which counsel is desired and except as provided in § 72.14 shall carry on its negotiations with attorneys subject to the distinct understanding that final action on the selection and employment of counsel shall be had in a general council or meeting of the tribe or as otherwise provided under § 72.15, subject to approval by the Secretary of the Interior or his authorized representative as required by law. (27 FR 11549, Nov. 24, 1962] § 72.14 Employment by tribal business committees. In case the tribal business committee or board has specific authority from the tribe to employ tribal attorneys and to execute a contract for that purpose, the tribal business committee or board may negotiate with attorneys and enter into a contract subject to approval of the Secretary of the Interior or his authorized representative as provided by law. [27 FR 11549, Nov. 24, 1962] § 72.15 Vote by secret ballot. Those tribes accustomed to act on important tribal matters by secret ballot or by vote in district meetings, or in some other manner, may apply through their proper officers to the Area Director for permission to consider and act upon employment of tribal counsel in the manner preferred by the tribe rather than by a general council or meeting. [27 FR 11549, Nov. 24, 1962] § 72.16 Notice from the tribe. Notice of intention to negotiate with attorneys should be sent to the superintendent by the proper tribal officers, accompanied by a full statement concerning the need for retaining counsel, showing in detail the purposes for which an attorney is needed, the scope of his intended employment, and a reference to the tribal funds, if any, which the tribe believes should be made available for payment of counsel fees and expenses. The notice and statement should be transmitted to the Area Director by the Superintendent with the latter's report and recommendations. [27 FR 11549, Nov. 24, 1962] § 72.17 Notice from attorneys. Attorneys desiring to execute contracts with Indian tribes shall be required to give written notice directed through the superintendent to the Area Director in advance of all negotiations. [27 FR 11549, Nov. 24, 1962] § 72.18 Tentative form of contract. A tentative form of contract may be obtained from any agency office, area office, or the Commissioner of Indian Affairs. When the attorney or tribe proposing to execute a contract desires to make substantial changes in the tentative form, the proposed changes should be submitted through the superintendent to the Area Director for approval as to form prior to execution of a contract. [27 FR 11549, Nov. 24, 1962] § 72.19 Execution in quintuplicate. The contract should be executed in quintuplicate, and all copies should be transmitted by the superintendent to the Area Director. [27 FR 11549, Nov. 24, 1962] § 72.20 Report of superintendent. The superintendent should submit a report when transmitting the contract, setting forth the qualifications and general reputation of the attorney selected, based upon references and independent inquiry by the superintendent, and the superintendent's recommendation concerning approval of the contract. [22 FR 10539, Dec. 24, 1957] § 72.21 Copies of approved contracts. The original of all approved contracts will be retained by the Area Director with a copy to the tribal governing body, attorney, Superintendent and Commissioner. The Commissioner's copy should be completely supported by copies of the recommendation of the Superintendent or Officer in Charge, Regional Solicitor's or Field Solicitor's opinions, and any other pertinent data which will permit the records of the Commissioner's office to reflect the full current status of approved attorney contracts in each instance. [27 FR 11549, Nov. 24, 1962] § 72.22 Qualifications of attorneys. The person selected as attorney should be a reputable member of the bar, and fully competent to carry the case through the Court of Claims, and to the Supreme Court of the United States, if necessary. [22 FR 10539, Dec. 24, 1957] § 72.24 Fees and expenses. Under rulings of the Comptroller General and section 27 of the act of May 18, 1916 (39 Stat. 158; 25 U.S.C. 123), tribal funds held in the United States Treasury may not be used for payment of attorney fees and expenses, in the absence of express authorization by Congress. Unless congressional authority has been obtained for the use of tribal funds, the payment of attorney fees and expenses shall be contingent upon a recovery by the Indians in the matters or claims covered in the contract. In case congressional authority has been obtained for the use of tribal funds for attorney fees and expenses, the provisions of the contract concerning the payment of such fees and expenses should strictly conform to the provisions of the act authorizing the use of the funds. [22 FR 10539, Dec. 24, 1957] § 72.25 Invalid contracts. The following is especially pointed out. 25 U.S.C. 81 provides further that all contracts made in violation of that section shall be null and void. Under 25 U.S.C. 84 and Reorganization plan No. 3 of 1950, 5 U.S.C. 481 note, no assignment of any such contract shall be valid without the consent of the Secretary of the Interior or his authorized representative. 25 U.S.C. 85 declares that no contract with any individual Indian relating to tribal property shall have any validity unless the consent of the United States has previously been given thereto. [25 FR 1689, Feb. 26, 1960] § 72.26 Governing bodies without express authority to contract. In the following cases, the entity or spokesman officially recognized as having authority to act for a tribe may both negotiate and conclude contracts for the services of legal counsel pursuant to applicable provisions of this part: (a) In the absence of tribal governing documents, or (b) When such documents do not expressly authorize the governing body of a tribe to conclude such contracts and do not provide for calling a tribal meeting to authorize concluding such contracts pursuant to § 72.8, and convening a tribal general council is not deemed feasible. [37 FR 10440, May 23, 1972] FIVE CIVILIZED TRIBES AUTHORITY: Secs. 72.30 through 72.35 issued under R.S. secs. 161, 463, 465 (5 U.S.C. 301; 25 U.S.C. 2, 9, 82a). § 72.30 Contents and approval of contracts. All contracts for the services of legal counsel or technical specialists negotiated and executed with the Choctaw, Chickasaw, Cherokee, Creek, or Seminole Tribes or Nations, also known as the Five Civilized Tribes, shall be in strict compliance with the requirements of section 2103 of the Revised Statutes of the United States (25 U.S.C. 81). [37 FR 10440, May 23, 1972] § 72.31 Negotiation of contract. That person or governing entity recognized as having authority to act for and in behalf of any one of the Five Civilized Tribes in matters of importance may, when it is found there is a substantial need and demand therefor, negotiate and contract for services of a tribal counsel or counsels and technical specialist or specialists, subject to the approval of the Secretary of the Interior or his authorized representative. [37 FR 10440, May 23, 1972] § 72.32 Notice from the principal officer. Notice of intention to negotiate with attorneys or with technical specialists shall be sent by the principal tribal officer to the Superintendent. Such notice shall be accompanied by a full statement concerning the need for retaining counsel or specialists, as the case may be, the purpose for which such assistance is needed and the scope of the intended employment. The notice and statement shall be transmitted to the Area Director by the Superintendent together with the latter's report and recommendations with respect to the approval of such contract. [37 FR 10440, May 23, 1972] § 72.33 Notice from attorney. Attorneys desiring to execute contracts with any one of the Five Civilized Tribes shall be required to give written notice to the Area Director through the Superintendent having jurisdiction over said tribe. [37 FR 10440, May 23, 1972] § 72.34 Tentative form of contract. The principal officer of any one of the Choctaw, Cherokee, Creek, Seminole, and Chickasaw Tribes may, if he desires, obtain a tentative form of contract by written application to the office of the appropriate Agency Superintendent. Requests for forms for an attorney contract should include a statement reciting whether the attorney is desired as a general legal counsel in connection with the business of the tribe or as counsel in respect to specific problems on which legal counsel is desired, or specific matters requiring representation in court or before committees of Congress and the Departments of Government. Requests for forms for technical service contracts should include a statement of the particular type of service required and the purpose for which it is needed. The anticipated term of each proposed contract should be stated. [37 FR 10440, May 23, 1972] § 72.35 Execution in quintuplet. The contract should be executed in quintuplet, and all copies of it shall be transmitted by the Superintendent to the Area Director. [37 FR 10440, May 23, 1972] 30-055 - 78 - 12 |