(1) The reasons why the Area Director or Commissioner is considering cancelling the contract.

(2) That the tribal organization will be given at least 45 days to present an acceptable plan to overcome the deficiencies in its contract performance.

(3) That the Bureau will furnish technical advice and assistance to help overcome the deficiencies in the contract performance, when requested.

(c) When the contract is with other than the governing body of the Indian tribe, the tribe(s) receiving services or benefits under the contract will be notified when a cancellation for cause is contemplated. The notice shall include the reasons why a cancellation for cause is contemplated and any supporting documents used by the Area Director to reach his conclusions. The notice shall also offer to held a meeting with the tribe(s) to discuss the issues and explore any options available to the tribe(s). The Area Director and the tribe(s) will mutually consider the relevant issues before the Area Director proceeds with any cancellation action.

(d) If the tribal organization does not present an acceptable plan to overcome the deficiencies in its contract performance within 45 days of its receipt of the notice of deficiencies or does not request the Commissioner to review the Area Director's decision as provided in paragraphs (e) and (f) of this section, the Area Director will cancel the contract for cause. The contracting officer will notify the tribal organization, in writing, of the cancellation. The notice shall give the reasons for the cancellation and the right of the tribal organization to appeal under §§ 271.81 and 271.82.

(e) When the Area Director determines the contract should be cancelled for cause the decision shall state as a minimum: The reasons for the decision; the actions that must be taken to achieve satisfactory performance; the technical assistance the Bureau will provide; notice that the tribal organization will be given at least 60 days to correct its performance deficiencies; and the tribal organization's right of appeal under §§ 271.81 and 271.82. The decision shall also advise the tribal organization that it may request the

Commissioner to review the decision and that such request must be made within 30 days of receipt of the decision.

(f) The Commissioner's review will be conducted and the tribal organization advised of the results within 30 days of receiving the request. If the Commissioner concurs in the Area Director's decision, the tribal organization will be so advised in writing and of its right to appeal the Area Director's decision pursuant to §§ 271.81 and 271.82. If the Commissioner decides that the Area Director's decision is not supported by the record, he will so advise both the Area Director and the tribal organization and the cancellation action will cease. In no case shall an Area Director cancel a contract until the review requested by a tribal organization has been completed by the Commissioner and results thereof have been received.

(g) When a contract is cancelled for cause, the Bureau will either perform the work with its own forces or by another contract, as appropriate. When the Bureau does not have sufficient forces on hand to immediately perform the work, it may, for temporary periods of the shortest duration possible, contract with a contractor that is not a tribal organization. However, in such cases, the advice of the tribe(s) will be obtained to determine how they desire the services to be rendered.

(h) Excess costs resulting from a cancellation that are required to operate the program will be provided by the Bureau to the extent that funds are available for that fiscal year. However, if current funds are not sufficient to maintain the program at its planned level, the program may be reduced until funds become available for the remainder of the fiscal year, at which time the program will be resumed at its planned level.

(i) Any tribal organization that has a contract cancelled for cause must demonstrate that the causes which led to the cancellation have been cured before it will be considered for another contract. In addition, there must be a new resolution and a new request from the Indian tribe(s) that will receive services or benefits under the contract.

[40 FR 51286, Nov. 4, 1975, as amended at 41 FR 5098, Feb. 4, 1976; 45 FR 13451, Feb. 29, 1980]

§ 271.76 Bureau operation of retroceded, reassumed or cancelled for cause contracts.

(a) The Bureau shall provide to the tribe(s) and Indians served by a contract which is retroceded, reassumed or cancelled for cause not less than the same quantity and quality of service that would have been provided at the level intended by the contract or operated previously by the Bureau.

(b) The Bureau shall provide to the tribe(s) and Indians served by a contract which is retroceded, reassumed, or cancelled for cause not less than the same quantity and quality of permanent and temporary personnel that meet the U.S. Civil Service qualifications that would have been provided at the level intended by the contract or previously operated by the Bureau. The procedures in § 271.77 will be followed to obtain personnel to operate programs or parts of programs previously under contract with a tribal organization but returned for operation by the Bureau because the contract was either retroceded, reassumed or cancelled for cause.

(c) This section does not apply to contracts for the operation of Bureau programs or parts of programs previously entered into under the authority of the Buy Indian Act (25 U.S.C. 47) and in effect on the effective date of the regulations, since ceiling and positions were not reserved at the time those contracts were awarded. However, the Bureau will provide, as nearly as possible, the same quantity and quality of service and permanent and temporary personnel that meet the U.S. Civil Service qualifications that would have been provided at the level intended by the Buy Indian Act contract or as operated previously by the Bureau.

(d) Actions under this section shall not cause a reduction in the quality and quantity of services to tribe(s) or Indians not served by contracts which are retroceded, reassumed or cancelled for cause.

[40 FR 51286, Nov. 4, 1975, as amended at 43 FR 37445, Aug. 23, 1978]

§ 271.77 Authorized position and end-ofyear employment ceiling reserve for Bureau operation of retroceded, reassumed, or cancelled contracts.

(a) When authorized permanent and other positions and permanent and other end-of-year employment ceiling are not required for the operation of all or parts of a Bureau program because the program or parts of a program are under contract with a tribal organization under this part, the positions and ceilings shall be reserved. The positions and ceiling reserved shall be available only for the same program or parts of a program at the same locations if the Bureau must operate the program or parts of a program because a tribe has retroceded the contract or because the Bureau has reassumed or cancelled the contract for cause.

(b) The Bureau shall establish a position and ceiling reserve for all contracts for the operation of all or parts of Bureau programs initially entered into on or after the effective date of these regulations.

Subpart G-Hearings and Appeals

§ 271.81 Informal conference and formal hearing.

(a) A tribal organization (unless retricted by the tribal resolution under § 271.18(c)(2) or subsequent resolutions) or tribal governing body will be notified in writing of the Area Director's recommendation or decision. The Area Director's recommendation or decision may be appealed to the Commissioner and the notice shall include a written statement to that effect. The applicant shall have 30 days from receipt of notice of the Area Director's decision in which to exercise its appeal rights by providing the Area Director with a notice in writing to that effect.

(b) Upon receipt of notice of appeal and if an informal conference has been requested, a date, time, and place for the informal conference will be arranged. The informal conference will be conducted within 30 calendar days of receipt of the appeal notice, or at such time as may be agreed upon. The Bureau of Indian Affairs will authorize payment of transportation costs

and per diem to allow adequate representation of the applicant if the meeting is more than 50 miles from the office of the applicant. The conference shall be conducted by the Commissioner or by an official designated by him. The purpose of the informal conference is to attempt to informally resolve issues without a formal hearing. Interested parties, entitled to present their positions shall be limited to authorized representatives of the Bureau, the tribal organization and the tribal governing body(s). If the applicant is not satisfied with the informal conference, or does not request a conference, the applicant is entitled to a formal hearing in accordance with § 271.81(c).

(c) The formal hearing, if requested in writing, will be convened within 30 days of the Commissioner's receipt of the request, or at such date and place as agreed upon. If the hearing is more than 50 miles from the applicant's office, the Bureau of Indian Affairs will authorize payment of transportation costs and per diem to allow adequate representation. The Bureau shall be responsible to arrange all aspects of the formal hearing. The hearing will be conducted by an official from the Office of Hearings and Appeals, the Department of the Interior, and shall accord the tribal governing body or applicant the following rights: (1) The right to written notice of issues to be considered;

(2) The right to be represented by counsel;

(3) The right to have the Department provide witnesses who are capable of providing testimony on the issues;

(4) The right to cross examine witnesses;

(5) The right to produce oral and documentary evidence;

(6) The right to require testimony under oath;

(7) The right to a copy of the transcript of the hearings and all documentary evidence introduced.

(d) The written decision of the Commissioner shall be rendered within 30 working days after receipt of the transcript. The decision of the Commissioner may be appealed to the Assist

ant Secretary-Indian Affairs as provided under § 271.82.

[45 FR 13451, Feb. 29, 1980]

§ 271.82 Appeals from decision or action by Commissioner.

(a) The applicant or the tribal governing body (unless restricted by the tribal resolution under § 271.18(c)(2) or subsequent resolutions) may appeal the Commissioner's decision made under § 271.81 to the Assistant Secretary-Indian Affairs. A notice of appeal must be sent to the Assistant Secretary-Indian Affairs within 30 days of receipt of the Commissioner's decision. The written decision of the Assistant Secretary-Indian Affairs shall be rendered within 30 working days following the receipt of appeal.

(b) The decision by the Assistant Secretary-Indian Affairs is final for the Department. The tribal governing body or the applicant is deemed to have exhausted its administrative remedies following rendering of the decision.

[45 FR 13451, Feb. 29, 1980]

(c) "Area Director" means the official in charge of a Bureau of Indian Affairs Area Office.

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

(e) "Commissioner" means the Commissioner of Indian Affairs, under the direction and supervision of the Assistant Secretary-Indian Affairs, who 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) "Grant" means a written agreement between the Bureau and a tribal governing body where the Bureau provides funds to carry out specified programs, services, or activities and where the administrative and programmatic provisions are specified.

(i) "Grantee" means the tribal governing body which is responsible for administration of the grant.

(j) "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 United States Government through the Secretary for the special programs and services provided by the Secretary to Indians because of their status as Indians.

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

(1) "Resolution" means the formal manner in which the tribal government expresses its legislative will pursuant to its organic documents. In the absence of such organic documents a written expression adopted pursuant to tribal (current) 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.

(o) "Subcontracts" means contracts undertaking some of the obligations of primary grants.

(p) "Subgrants" means secondary grants undertaking some of the obligations of primary grants.

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

(r) "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 Indian individual subject to a restriction on alienation imposed by the United States.

(s) "Trust responsibility" means for the purposes of this part only the responsibility assumed by the United States Government, by virtue of treaties, statutes and other means, legally associated with the role of trustee, to protect, manage, develop, and approve authorized transfers of interest in trust resources held by Indian tribes and Indian individuals to a standard of the highest degree of fiduciary responsibility.

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

[40 FR 51300, Nov. 4, 1975, as amended at 43 FR 37445, Aug. 23, 1978; 45 FR 13451, Feb. 29, 1980]

§ 272.3 Effect on existing Indian rights.

The regulations in this part are not meant to and do not:

(a) Affect, modify, diminish, or otherwise impair the sovereign immunity from suit enjoyed by an Indian tribe;

or

(b) Authorize, require or permit the termination of any existing trust responsibility of the United States with respect to the Indian people.

§ 272.4 Revision or amendment of regulations.

Before making 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 any 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 preIclude Indian tribes or national or regional organizations from initiating requests for revisions or amendments, subject to paragraphs (a), (b), (c) and (d) of this section.

§ 272.5 Statement of policy.

(a) The Indian Self-Determination and Education Assistance Act (Pub. L. 93-638) is intended to facilitate increased self-determination for American Indians by providing a means through which they may plan, conduct, and administer programs and services to Indian people. These programs and services are essentially those authorized by the Act of April 16, 1934 (Johnson-O'Maley Act); the Act of November 2, 1921 (Snyder Act) and other subsequent Acts.

(b) A most important aid available to assist Indians in achieving this objective of increased self-determination is the grant authority provided in section 104 of the Act. This grant authority will assist Indian tribes in improving their governing capabilities, increase their ability to effectively administer programs under contract, and enable them to provide direction to the Federal programs intended to serve Indian people.