SUBCHAPTER A-PROCEDURES; PRACTICE SUBCHAPTER A-PROCEDURES; PRACTICE Chapters I and II of this title contain the bulk of the regulations of the De- partment of the Interior of general ap- plication relating to Indian affairs. Sub- title B, Chapter I, Title 43 of the Code of Federal Regulations contains rules relat- ing to the relationship of Indians to pub- lic lands and townsites. Subtitle A of Title 43 of the Code of Federal Regula- tions has application to certain aspects on oil and gas and other mining opera- § 1.4 State and local regulation of the (a) Except as provided in paragraph (b) of this section, none of the laws, ordinances, codes, resolutions, rules or other regulations of any State or politi- cal subdivision thereof limiting, zoning or otherwise governing, regulating, or controlling the use or development of any real or personal property, including water rights, shall be applicable to any such property leased from or held or used under agreement with and belonging to any Indian or Indian tribe, band, or com- munity that is held in trust by the United States or is subject to a restric- tion against alienation imposed by the (b) The Secretary of the Interior or his authorized representative may in specific cases or in specific geographic areas adopt or make applicable to Indian lands all or any part of such laws, ordi- nances, codes, resolutions, rules or other regulations referred to in paragraph (a) of this section as he shall determine to be in the best interest of the Indian owner or owners in achieving the highest and best use of such property. In determin- ing whether, or to what extent, such laws, ordinances, codes, resolutions, rules or other regulations shall be adopted or made applicable, the Secretary or his authorized representative may consult with the Indian owner or owners and Forms upon which applications and related documents may be filed and upon which rights and privileges may be granted may be inspected and procured at the Bureau of Indian Affairs, Wash- (a) "Person" includes any Indian or (b) "Interested party" means any person whose interests would be ad- versely affected by proceedings conduct- (c) "Petitioner" means any person who files an appeal under this part. (d) "Appeal" means a written request (e) "Complaint" means a written re- This part provides appeals procedures for requesting correction of actions or decisions by officials of the Bureau of Indian Affairs where the action or deci- sion is protested as a violation of a right or privilege of the appellant. Such rights or privileges must be based upon fundamental constitutional law, applica- ble Federal statutes, treaties, or upon De- partmental regulations. Such regula- tions appear in the FEDERAL REGISTER and, where of general application in In- dian affairs, in Title 25 of the Code of Federal Regulations. "Appeals" shall be processed in accordance with the reg- ulations in this part. "Complaints," on the other hand, may be either informally or formally made and ordinarily first presented to the office immediately re- sponsible for the action or decison ques- tioned and thereafter if necessary to higher officials. An action or decision which is subject to appeal shall be re- duced to writing by the official making the decision either at his own instance or upon request of the petitioner. The appeal procedures in this part do not apply to decisions made under statutes or other regulations which provide § 2.4 Notice of administrative action. Notice shall be given of any action taken or decision made from which an appeal may be taken under the regulations in this part, to any Indian or InIdian tribe whose legal rights or privileges are affected thereby. This notice shall be in writing and shall be given by the official making the decision or taking the action. Failure to give such notice shall not affect the validity of the action or decision, but the right to appeal therefrom shall continue under the regulations in this part for the periods hereinafter set forth. Subpart B-Appeals to the Area Di rector or to the Commissioner § 2.10 Appeal, how taken; time limit. (a) An interested party who wishes to appeal to the Area Director or Commissioner shall initiate his appeal by filing a written petition with the official who made the decision. Such official if requested by an Indian or Indian tribe shall render such assistance as is appropriate in the preparation of any appeal by an Indian or Indian tribe. The petition should give an identification of the case a statement of reasons for the appeal and any arguments the petitioner wishes to make. The petition must be received in such office within 20 days after the date of the mailing of the notice of the decision complained of to the petitioner unless further time is granted pursuant to the regulations in this part. The petitioner also may file an additional written statement of reasons and arguments or briefs with the Area Director or the Commissioner within 10 days after the filing of the petition. (b) Whether or not the decision complained of will be suspended during the appeal will be within the discretion of the officer to whom the appeal is made. He may require an adequate bond to protect the interest of any Indian, Indian tribe, or other parties involved. § 2.11 Service of petition and of other documents. (a) The petitioner, or the officer with whom the petition is filed when the petitioner is an Indian or Indian tribe not represented by counsel, shall serve a copy of the petition and of any additional written statement of reasons, arguments, or briefs on each interested party known to him as such, in the man ner prescribed in § 2.33, at the time of filing thereof. Failure to serve within the time required may subject the appeal to summary dismissal as provided in § 2.36. Proof of such service as required by § 2.33 must be filed with the Area Director or Commissioner within 15 days after service unless filed with the petition or with the additional statement of reasons, arguments or briefs. § 2.12 Answers. If any party served with a petition wishes to participate in the proceeding on appeal, he must file a written answer within 20 days after service of the petition upon him. If an additional statement of reasons is filed by the petitioner, the interested party shall have 10 days after service thereof within which to answer. Answers must be filed with the Area Director, the Commissioner, or other Bureau employee with copy to the Commissioner, whichever is appropriate, and be served on the petitioner in the manner prescribed in § 2.33 at the time the answer is filed. Proof of such service, as required by § 2.33, must be filed with the Area Director or the Commissioner within 15 days after service. If an answer is not filed within the time required, a default will not result but the answer may be disregarded in deciding the appeal. § 2.13 Action by Area Director or Commissioner on appeal. The Commissioner or the Area Director will render a written decision in each case appealed to him, copies of which will be mailed to all interested parties. § 2.14 Effect of failure to appeal. When any party fails to appeal a decision of the Superintendent, Area Director, or the Commissioner, that decision shall be final as to such party and I will not be disturbed except for fraud or gross irregularity, or where it is found by higher authority that the failure to appeal on the part of an Indian or InIdian tribe would result in an inequity or injustice to the Indian or Indian tribe. Subpart C-Appeals to the Secretary § 2.21 Right of appeal to the Secretary. Any party adversely affected may file an appeal from a decision of the Commissioner to the Secretary except a decision which received the Secretary's approval at the time it was made. The § 2.22 Appeal, how taken; time limit. (a) An interested party who wishes to file an appeal from a decision of the Commissioner to the Secretary must file a written petition with the Commissioner that he wishes to appeal. petition must give an identification of the case, a statement of the reasons for the appeal and any arguments the petitioner wishes to make. The petition must be received in such office within 20 days after the date of the mailing of the notice of the decision complained of to the petitioner. The petitioner also may file an additional statement of reasons, arguments, or briefs with the Commissioner or Secretary within 10 days after the filing of the petition. (b) Whether or not the decision complained of will be suspended during the appeal will be within the discretion of the Secretary. He may require an adequate bond to protect the interest of any Indian, Indian tribe, or other parties involved. § 2.23 Service of petition and of other documents. The petitioner, or the Commissioner when the petitioner is an Indian or Indian tribe not represented by counsel, shall serve a copy of the petition and any accompanying written statement of reasons, arguments or briefs on each interested party known to him as such, in the manner prescribed in § 2.33 at the time of filing the petition and at the time of filing any additional statement of reasons, arguments or briefs. Failure to serve within the time required may subject the appeal to summary dismissal as provided in § 2.36. Proof of such service as required by § 2.33 must be filed with the Secretary within 15 days after service unless filed with the petition or with the additional statement of reasons, arguments or briefs. § 2.24 Answers. If a party served with a petition wishes to participate in the proceeding on appeal, he must file a written answer within 20 days after service of the petition upon him. If an additional statement of reasons is filed by the petitioner, the interested party shall have 10 days after service thereof within which to answer. Answers must be filed with the Secretary and be served on the peti tioner in the manner prescribed in § 2.33 at the time the answer is filed. Proof of such service as required by § 2.33 must be filed with the Secretary within 15 days after service. If an answer is not filed within the time required, default will not result but the answer may be disregarded in deciding the appeal. § 2.25 Finality of decision. No further right of appeal or request for reconsideration exists within the Department of the Interior from a decision of a Secretarial Officer, except when he finds as a matter of discretion that reconsideration should be had in order to avoid injustice and such decision shall constitute the final administrative action. Copies of such decision will be mailed to all interested parties. § 2.31 Subpart D-Procedures When a document is filed. A document is properly filed when received in the office of the official with whom the filing is required during regular office hours. No degree of formality is required, a simple letter will suffice, and the appellant need not be represented by counsel. An appeal by an Indian or Indian tribe received in an office other than that to which it should be properly addressed shall be transmitted to the proper office and the appellant advised. If such office is unknown where received, it shall be returned to the writer. § 2.32 Record address. Every interested party who files a document in connection with an appeal shall state his address at the time of initial filing in the matter. Thereafter, he must promptly inform the official with whom the filing was made of any change in address, giving appropriate identification of all matters in which he has made such a filing; otherwise, the address as stated shall be accepted as the proper address. The successors of such party shall likewise promptly inform the official of their interest in the matter and state their addresses. If an interested party fails to furnish his address as required in this section, he will not be entitled to notice in connection with the proceedings. 51-040 O-66-2 (a) Wherever this regulation requires that a copy of a document be served, service shall be made by delivering the copy personally or by sending the document by registered or certified mail, return receipt requested, to the address of record as required in § 2.32. Where a tribe is an interested party, service shall be made on the authorized tribal official or tribal governing body. Notice of a decision is sufficient if mailed by regular mail. (b) A document will be considered to have been served at the time (1) of acknowledgment, (2) of personal service, (3) of delivery of a registered or certified letter, or (4) of the return by the post office of an undelivered registered or certified letter. (c) In all cases where a party is represented by an attorney, such attorney will be recognized as fully controlling the same on behalf of his client, and service of any document relating to the proceeding upon such attorney shall be deemed to be service on the party he represents. Where a party is represented by more than one attorney, service upon one of the attorneys shall be sufficient. § 2.34 Computation of time for filing and service. In computing any period of time prescribed herein for filing or serving a document, the day upon which the decision or document to be appealed or answered was mailed or served, or the day of any other event after which the 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 falls upon a Saturday, Sunday, or legal holiday. The period for filing or serving any document may be extended or waived on behalf of an interested party by the officer to whom the appeal is taken, for good cause found by the officer. The Secretary in his discretion may extend or waive any time limitation established by these regulations. § 2.36 Summary dismissal. An appeal to the Area Director, Commissioner or the Secretary may be subject to summary dismissal by the officer to whom it is made for any of the following causes: (a) If a statement of the reasons for the appeal is not included in the petition. (b) If the petition or additional statement of reasons in support of the appeal are not received or not served upon the interested parties within the time required. (c) If proof of service of any document is not filed within the time required. No appeal shall be dismissed because of a procedural error or informality which is satisfactorily explained as being the result of ignorance, mistake, or circumstances beyond the control of the appellant. § 2.37 Scope of review. When a matter is before an official of the Bureau of Indian Affairs or higher echelon of the Department of the Interior on appeal, any information available to the reviewing officer may be used whether formally part of the record, if any, or not, but where reliance is placed on information not of record such information shall be identified as to source and nature. |