PART 1-APPLICABILITY OF RULES OF THE BUREAU OF INDIAN AFFAIRS

Sec.

1.1 [Reserved]

1.2 Applicability of regulations and reserved authority of the Secretary of the Interior.

1.3 Scope.

1.4 State and local regulation of the use of Indian property.

1.10 Availability of forms.

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

§ 1.1 [Reserved]

§ 1.2 Applicability of regulations and reserved authority of the Secretary of the Interior.

The regulations in chapter I of title 25 of the Code of Federal Regulations are of general application. Notwithstanding any limitations contained in the regulations of this Chapter, the Secretary retains the power to waive or make exceptions to his regulations as found in chapter I of title 25 CFR in all cases where permitted by law and the Secretary finds that such waiver or exception is in the best interest of the Indians.

[25 FR 3124, Apr. 12, 1960]

§ 1.3 Scope.

Chapters I and II of this title contain the bulk of the regulations of the Department of the Interior of general application relating to Indian affairs. Subtitle B, chapter I, title 43 of the Code or Federal Regulations contains rules relating to the relationship of Indians to public lands and townsites. Subtitle A of title 43 CFR has application to certain aspects of Indian affairs and, among other things, contains procedural rules for appellate and other administrative review and for practice before the Department of the Interior, of which the Bureau of Indian Affairs is a part. Indian health matters are covered in 42 CFR part 36. Title 30 CFR contains regulations on oil and gas and other mining operations, which, under certain circum

stances, may be applicable to

resources.

[25 FR 3124, Apr. 12, 1960, as amende FR 20625, May 12, 1975; 48 FR 1341 31, 1983]

§ 1.4 State and local regulation of of Indian property.

(a) Except as provided in para (b) of this section, none of the ordinances, codes, resolutions, ru other regulations of any State or ical subdivision thereof lin zoning or otherwise governing, lating, or controlling the use or opment of any real or personal p ty, including water rights, shall I plicable to any such property 1 from or held or used under agree with and belonging to any Indi Indian tribe, band, or community is held in trust by the United Sta is subject to a restriction against ation imposed by the United Stat

(b) The Secretary of the Interi his authorized representative m specific cases or in specific geogra areas adopt or make applicabl Indian lands all or any part of laws, ordinances, codes, resolut rules or other regulations referr in paragraph (a) of this section a shall determine to be in the best i est of the Indian owner or owne achieving the highest and best us such property. In determining wh er, or to what extent, such laws, nances, codes, resolutions, rules other regulations shall be adopte made applicable, the Secretary or authorized representative may con with the Indian owner or owners may consider the use of, and res tions or limitations on the use other property in the vicinity, such other factors as he shall de appropriate.

[30 FR 7520, June 9, 1965]

§ 1.10 Availability of forms.

Forms upon which applications & related documents may be filed a upon which rights and privileges m be granted may be inspected and p cured at the Bureau of Indian Affai

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

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

Statement of reasons means a written document submitted by the appellant explaining why the decision being appealed is in error (see § 2.10).

[54 FR 6480, Feb. 10, 1989; 54 FR 7666, Feb. 22, 1989]

§ 2.3 Applicability.

(a) Except as provided in paragraph (b) of this section, this part applies to all appeals from decisions made by officials of the Bureau of Indian Affairs by persons who may be adversely affected by such decisions.

(b) This part does not apply if any other regulation or Federal statute provides a different administrative appeal procedure applicable to a specific type of decision.

§ 2.4 Officials who may decide appeals.

The following officials may decide appeals:

(a) An Area Director, if the subject of appeal is a decision by a person under the authority of that Area Director.

(b) An Area Education Programs Administrator, Agency Superintendent for Education, President of a Post-Secondary School, or the Deputy to the Assistant Secretary-Indian Affairs/ Director (Indian Education Programs), if the appeal is from a decision by an Office of Indian Education Programs (OIEP) official under his/her jurisdiction.

(c) The Assistant Secretary-Indian Affairs pursuant to the provisions of § 2.20 of this part.

(d) A Deputy to the Assistant Secretary-Indian Affairs pursuant to the provisions of § 2.20(c) of this part.

(e) The Interior Board of Indian Appeals, pursuant to the provisions of 43 CFR part 4, subpart D, if the appeal is from a decision made by an Area Director or a Deputy to the Assistant Secretary-Indian Affairs other than the Deputy to the Assistant Secre

tary-Indian Affairs/Director (Indian Education Programs).

§ 2.5 Appeal bond.

(a) If a person believes that he/she may suffer a measurable and substantial financial loss as a direct result of the delay caused by an appeal, that person may request that the official before whom the appeal is pending require the posting of a reasonable bond by the appellant adequate to protect against that financial loss.

(b) A person requesting that a bond be posted bears the burden of proving the likelihood that he/she may suffer a measurable and substantial financial loss as a direct result of the delay caused by the appeal.

(c) In those cases in which the official before whom an appeal is pending determines that a bond is necessary to protect the financial interests of an Indian or Indian tribe, that official may require the posting of a bond on his/her own initiative.

(d) Where the official before whom an appeal is pending requires a bond to be posted or denies a request that a bond be posted, he/she shall give notice of his/her decision pursuant to § 2.7.

§ 2.6 Finality of decisions.

(a) No decision, which at the time of its rendition is subject to appeal to a superior authority in the Department, shall be considered final so as to constitute Departmental action subject to judicial review under 5 U.S.C. 704, unless when an appeal is filed, the official to whom the appeal is made determines that public safety, protection of trust resources, or other public exigency requires that the decision be made effective immediately.

(b) Decisions made by officials of the Bureau of Indian Affairs shall be effective when the time for filing a notice of appeal has expired and no notice of appeal has been filed.

(c) Decisions made by the Assistant Secretary-Indian Affairs shall be final for the Department and effective immediately unless the Assistant Secretary-Indian Affairs provides otherwise in the decision.

[54 FR 6480, Feb. 10, 1989; 54 FR 7666, Feb. 22, 1989]

§ 2.7 Notice of administrative decisio action.

(a) The official making a deci shall give all interested parties kn to the decisionmaker written notic the decision by personal delivery mail.

(b) Failure to give such notice s not affect the validity of the deci or action but the time to file a no of appeal regarding such a deci shall not begin to run until notice been given in accordance with p graph (c) of this section.

(c) All written decisions, except sions which are final for the Dep ment pursuant to § 2.6(c), shall clude a statement that the deci may be appealed pursuant to this identify the official to whom it ma appealed and indicate the appeal cedures, including the 30-day limit for filing a notice of appeal.

[54 FR 6480, Feb. 10, 1989; 54 FR 7666, 22, 1989]

§ 2.8 Appeal from inaction of official.

(a) A person or persons whose in ests are adversely affected, or w ability to protect such interests is peded by the failure of an officia act on a request to the official, make the official's inaction the sub of appeal, as follows:

(1) Request in writing that the cial take the action originally aske him/her;

(2) Describe the interest adver affected by the official's inaction cluding a description of the loss, pairment or impediment of such in est caused by the official's inaction

(3) State that, unless the officia volved either takes action on merits of the written request withi days of receipt of such request by official, or establishes a date by wh action will be taken, an appeal sha filed in accordance with this part.

(b) The official receiving a req as specified in paragraph (a) of section must either make a decision the merits of the initial request wi 10 days from receipt of the request a decision or establish a reason later date by which the decision s be made, not to exceed 60 days f the date of request. If an official