Code of Federal Regulations: Containing a Codification of Documents of ...

of the decision in accordance with §§ 4.291-4.297. The administrative law judge shall lodge the complete record relating to the demand for hearing with the title plant as provided in § 4.236(b), furnish a duplicate record thereof to the Superintendent, and mail a notice of such action together with a copy of the decision to each party in interest.

§ 4.306 Time for payment.

A tribe shall pay the full fair market value of the interests purchased, as set forth in the appraisal report or as determined after hearing in accordance with §4.305, whichever is applicable, within 2 years from the date of decedent's death or within 1 year from the date of notice of purchase, whichever comes later.

§ 4.307 Title.

Upon payment by the tribe of the interests purchased, the Superintendent shall issue a certificate to the administrative law judge that this has been done and file therewith such documents in support thereof as the administrative law judge may require. The administrative law judge shall then issue an order that the United States holds title to such interests in trust for the tribe, lodge the complete record, including the decision, with the title plant as provided in § 4.236(b), furnish a duplicate record thereof to the Superintendent, and mail a notice of such action together with a copy of the decision to each party in interest.

§ 4.308 Disposition of income.

During the pendency of the probate and up to the date of transfer of title to the United States in trust for the tribe in accordance with §4.307, all income received or accrued from the land interests purchased by the tribe shall be credited to the estate.

CROSS REFERENCE: See Part 2, Title 25 of the Code of Federal Regulations, for procedures for appeals to Area Directors and to the Commissioner of the Bureau of Indian Affairs.

GENERAL RULES APPLICABLE TO PROCEEDINGS ON APPEAL BEFORE THE INTERIOR BOARD OF INDIAN APPEALS

AUTHORITY: Secs. 1, 2, 36 Stat. 855, as amended, sec. 1, 38 Stat. 586, 42 Stat. 1185, as amended, secs. 1, 2, 56 Stat. 1021, 1022; R.S. 463, 465; 5 U.S.C. 301; 25 U.S.C. secs. 2, 9, 372, 373, 374, 373a, 373b.

SOURCE: Sections 4.310-4.317 appear at 46 FR 7335, Jan. 23, 1981, unless otherwise noted.

§4.310 Documents.

(a) Filing. The effective date for filing a notice of appeal or other document with the Board during the course of an appeal is the date of mailing or the date of personal delivery.

(b) Service. Notices of appeal and pleadings shall be served on all parties in interest in any proceeding before the Interior Board of Indian Appeals by the party filing the notice or pleading with the Board. Service shall be accomplished upon personal delivery or mailing.

(c) Computation of time for filing and service. 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 or answered was served or the day of any other event after which a designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday, Federal legal holiday, or other nonbusiness day, in which event the period runs until the end of the next day which is not a Saturday, Sunday, Federal legal holiday, or other nonbusiness day. 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.

(d) Extensions of time. (1) The time for filing or serving any document except a notice of appeal may be extended by the Board.

(2) A request to the Board for an extension of time must be filed within the time originally allowed for filing.

(e) Retention of documents. All documents received in evidence at a hear

ing or submitted for the record in any proceeding before the Board will be retained with the official record of the proceeding. The Board, in its discretion, may permit the withdrawal of original documents while a case is pending or after a decision becomes final upon conditions as required by the Board.

§ 4.311 Briefs on appeal.

(a) The appellant may file an opening brief within 30 days after receipt of the notice of docketing. Appellant shall serve copies of the opening brief filed upon all interested parties or counsel and file a certificate with the Board showing service upon the named parties. Opposing parties or counsel shall have 30 days from receipt of appellant's brief to file answer briefs, copies of which shall be served upon the appellant or counsel and all other parties in interest. A certificate showing service of the answer brief upon all parties or counsel shall be attached to the answer filed with the Board.

(b) Appellant may reply to an answering brief within 15 days from its receipt. A certificate showing service of the reply brief upon all parties or counsel shall be attached to the reply filed with the Board. Except by special permission of the Board, no other briefs will be allowed on appeal.

(c) The Bureau of Indian Affairs shall be considered an interested party in any proceeding before the Board. The Board may request that the Bureau submit a brief in any case before the Board.

§ 4.312 Decisions.

Decisions of the Board will be made in writing. Distribution of decisions shall be made by the Board to all parties concerned. Unless otherwise stated in the decision, rulings by the Board which are final for the Department shall be given immediate effect. § 4.313 Amicus Curiae. Intervention. Joinder motions.

(a) Any interested person or Indian tribe desiring to intervene or to join other parties or to appear as amicus curiae or to obtain an order in an appeal before the Board shall apply in

writing to the Board stating the grounds for the action sought. Permission to intervene, to join parties, to appear, or for other relief, may be granted for purposes and subject to limitations established by the Board. This section shall be liberally construed.

(b) Motions to intervene, to appear by amicus curiae brief or to join additional parties to an appeal pending before the Board shall be served in the same manner as appeal briefs.

84.314 Exhaustion of administrative remedies.

(a) No decision of an administrative law judge which at the time of its rendition is subject to appeal to the Board shall be considered final so as to constitute agency action subject to judicial review under 5 U.S.C. 704, unless made effective pending decision on appeal by order of the Board.

(b) No further appeal will lie within the Department from a decision of the Board.

(a) Reconsideration of a decision of the Board will be granted only in extraordinary circumstances. Any party to the decision may petition for reconsideration. The petition must be filed with the Board within 30 days from receipt of the decision and shall contain a detailed statement of the reasons why reconsideration should be granted.

(b) A party may file only one petition for reconsideration.

(c) The filing of a petition shall not stay the effect of any decision or order and shall not affect the finality of any decision or order for purposes of judicial review, unless so ordered by the Board.

§ 4.316 Remands from courts.

Whenever any matter is remanded from any court to the Board for further proceedings, and to the extent the court's directive and time limitations will permit, the parties shall be allowed an opportunity to submit to

the Board a report recommending procedures to be followed to comply with the court's order. The Board will review the reports and enter special orders governing matters on remand.

§ 4.317 Standards of conduct.

(a) Inquiries about cases. All inquiries with respect to any matter pending before the Board shall be made to the Chief Administrative Judge of the Board or to the member of the Board assigned the matter.

(b) Disqualification. A Board member may withdraw from a case in accordance with standards found in the recognized canons of judicial ethics if the member deems such action appropriate. If, prior to a decision of the Board, a party files an affidavit of personal bias or disqualification with substantiating facts, and the Board member concerned does not withdraw, the Director of the Office of Hearings and Appeals shall determine the matter of disqualification.

[46 FR 7335, Jan. 23, 1981, as amended at 50 FR 43705, Oct. 29, 1985]

APPEALS TO THE BOARD OF INDIAN APPEALS IN PROBATE MATTERS

SOURCE: Sections 4.320-4.323 appear at 46 FR 7336, Jan. 23, 1981, unless otherwise noted.

§ 4.320 Who may appeal; scope of review.

A party in interest shall have a right of appeal to the Board of Indian Appeals from an order of an administrative law judge on a petition for rehearing, a petition for reopening, or regarding tribal interests in a deceased Indian's trust estate. An appeal shall be limited to those issues which were before the administrative law judge upon the petition for rehearing, reopening or regarding tribal interests. However, the Board shall not be limited in its scope of review and may exercise the inherent authority of the Secretary to correct a manifest injustice or error where appropriate.

(a) Notice of Appeal. Within 60 days from the date of the decision, an apel

lant shall file a written notice of appeal signed by appellant, appellant's attorney, or other qualified representative as provided in 43 CFR 1.3, with the Board of Indian Appeals, Office of Hearings and Appeals, U.S.C. Department of the Interior, 4015 Wilson Boulevard, Arlington, Virginia 22203. A statement of the errors of fact and law upon which the appeal is based shall be included in either the notice of appeal or in any brief filed. The notice of appeal shall include the names of parties served.

(b) Service of copies of notice of appeal. The appellant shall personally deliver or forward by United States mail to the Board of Indian Appeals the original notice of appeal. A copy shall be served upon the administrative law judge whose decision is appealed as well as all interested parties.

(c) Action by administrative law judge; record inspection. The administrative law judge, upon receiving a copy of the notice of appeal, shall notify the Superintendent concerned to return the duplicate record filed under §§ 4.236(b) and 4.241(d), or under § 4.242(f), to the title plant designated under § 4.236(b). The duplicate record shall be conformed to the original by the title plant and shall thereafter be available for inspection either at the title plant or at the office of the Superintendent.

[46 FR 7336, Jan. 23, 1981, as amended at 51 FR 18327, May 19, 1986]

§ 4.321 Notice of transmittal of record on appeal.

The original record on appeal shall be forwarded by the title plant to the Board by certified mail. Any objection to the record as constituted shall be filed with the Board within 15 days of the date of docketing of the appeal by the Board.

§ 4.322 Docketing.

The appeal shall be docketed by the Board upon receipt of the administrative record from the title plant. All interested parties as shown by the record on appeal shall be notified of the docketing. The docketing notice shall specify the time within which briefs may be filed and shall cite the

procedural regulations governing the appeal.

§ 4.323 Disposition of the record.

Subsequent to a decision of the Board, other than remands, the record filed with the Board and all documents added during the appeal proceedings, including the Board's decision, shall be forwarded by the Board to the title plant designated under § 4.236(b). Upon receipt of the record by the title plant, the duplicate record required by §4.320(c) shall be conformed to the original and forwarded to the Superintendent concerned.

APPEALS TO THE BOARD OF INDIAN APPEALS FROM ADMINISTRATIVE ACTIONS OF OFFICIALS OF THE BUREAU OF INDIAN AFFAIRS: ADMINISTRATIVE

REVIEW IN OTHER INDIAN MATTERS NOT RELATING TO PROBATE PROCEEDINGS

AUTHORITY: Secs. 1, 2, 36 Stat. 855, as amended, sec. 1, 38 Stat. 586, 42 Stat. 1185, as amended, secs. 1, 2, 56 Stat. 1021, 1022; R.S. 463, 465; 5 U.S.C. 301; 25 U.S.C. 2, 9, 372, 373, 374, 373a, 373b.

SOURCE: Sections 4.330-4.340 appear at 46 FR 7337, Jan. 23, 1981, unless otherwise noted.

§ 4.330 Scope.

(a) The definitions set forth in § 2.1 of Part 2, Title 25 of the Code of Federal Regulations, apply also to these special rules. These regulations apply to the practice and procedure for (1) appeal to the Board of Indian Appeals from administrative actions or decisions of officials of the Bureau of Indian Affairs issued under regulations in Chapter 1 of 25 CFR, in cases involving determinations, findings and orders protested as a violation of a right or privilege of the appellant; and (2) administrative review by the Board of Indian Appeals of other matters pertaining to Indians which are referred to it for exercise of review authority of the Secretary, the Assistant Secretary for Indian Affairs, or the Commissioner of Indian Affairs.

(b) Except as otherwise permitted by the Secretary, the Assistant Secretary for Indian Affairs or the Commissioner of Indian Affairs by special delegation or request, the Board shall not

adjudicate: (1) Tribal enrollment disputes; (2) matters decided by the Bureau of Indian Affairs through exercise of its discretionary authority; (3) appeals from decisions of the Commissioner of Indian Affairs pertaining to final recommendations or actions by officers of the Conservation Division, Geological Survey, unless the Commissioner's decision is based on an interpretation of Federal Indian law (Commissioner's decisions not so based which arise from determinations of the Geological Survey are appealable to the Board of Land Appeals in accordance with 43 CFR 4.410); or (4) decisions of the Office of Indian Education Programs for which Secretarial review is otherwise provided.

§ 4.331 Who may appeal.

Any interested party affected by a final administrative action or decision of an official of the Bureau of Indian Affairs issued under regulations in Title 25 of the Code of Federal Regulations in a case involving a determination, finding, or order protested as a violation of a right or privilege of the appellant may appeal to the Board of Indian Appeals, except (a) to the extent that decisions of officials under the supervision of the Commissioner of the Bureau of Indian Affairs must first be appealed to the Commissioner under provisions in 25 CFR Part 2; (b) where such decision has been approved by the Secretary prior to promulgation; and (c) where otherwise provided by law or regulation.

§ 4.332 Appeal to the Board; how taken; mandatory time for filing; preparation assistance; requirement for bond.

(a) A notice of appeal shall be in writing, signed by the appellant or by his attorney of record or other qualified representative as provided by 43 CFR 4.1, and filed with the Board of Indian Appeals, Office of Hearings and Appeals, U.S. Department of the Interior, 4015 Wilson Boulevard, Arlington, Virginia 22203, within 60 days after receipt by the appellant of the decision from which appeal is taken. A notice of appeal not timely filed shall be dismissed for lack of jurisdiction. A notice of appeal shall include:

(1) A full identification of the case; (2) A statement of the reasons for the appeal and of the relief sought;

(3) Any arguments the appellant wishes to make; and

(4) The names and addresses of all additional interested parties, Indian tribes, tribal corporations, or groups having rights or privileges which may be affected by a change in the decision, whether or not they participated as interested parties in the earlier proceedings.

(b) An appeal properly and timely filed with the Commissioner pursuant to 25 CFR 2.10 and referred to the Board pursuant to 25 CFR 2.19 without a decision may be docketed by the Board as timely filed.

(c) When the appellant is an Indian or Indian tribe, the officer who issued the decision appealed shall upon request of the appellant, render such assistance as is appropriate in the preparation of the appeal.

(d) At any time during the pendency of an appeal, an appropriate bond may be required to protect the interest of any Indian, Indian tribe, or other parties involved.

§ 4.333 Service of notice of appeal.

(a) on or before the date of filing of the notice of appeal the appellant shall serve a copy of the notice upon each interested party named, and upon the official of the Bureau of Indian Affairs from whose decision the appeal is taken. If the appellant is an Indian or an Indian tribe not represented by counsel, the appellant may request the official of the Bureau whose decision is appealed to assist in service of copies of the notice of appeal and any supporting documents.

(b) The notice of appeal will be considered to have been served upon the date of personal service or mailing.

§ 4.334 Extensions of time.

Requests for extensions of time to file documents may be granted upon a showing of good cause, except for the time fixed for filing a notice of appeal, as specified in § 4.332, which may not be extended.

§ 4.335 Preparation and transmittal of record by official of the Bureau of Indian Affairs.

(a) Upon receipt of a copy of a notice of appeal or upon notice from the Board, the official of the Bureau of Indian Affairs whose decision is appealed shall assemble and transmit the record to the Board. The record on appeal shall include, without limitation, copies of transcripts of testimony taken, all original documents, petitions, or applications by which the proceeding was initiated and all supplemental documents which set forth claims of interested parties, as well as documents upon which all previous decisions were based.

(b) The administrative record shall include a Table of Contents noting, as a minimum, inclusion of the following: (1) The decision appealed from; (2) the notice of appeal or copy thereof; and (3) certification that the record contains all information and documents utilized by the deciding official in rendering the decision appealed.

§ 4.336 Docketing.

An appeal shall be docketed by the Board upon receipt of the administrative record. All interested parties as shown by the record on appeal shall be notified of the docketing. The docketing notice shall specify the time within which briefs shall be filed and cite the procedural regulations governing the appeal.

§ 4.337 Action by the Board.

(a) The Board may make a final decision, or where the record indicates a need for further inquiry to resolve a genuine issue of material fact, the Board may require a hearing. All hearings shall be conducted by an administrative law judge of the Office of Hearings and Appeals. The Board may, in its discretion, grant oral argument before the Board.

(b) Where the Board finds that one or more issues involved in an appeal or a matter referred to it require the exercise of discretionary authority of the Commissioner, the Board shall refer those issues to the Commissioner for resolution.

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