Page images
PDF
EPUB
[blocks in formation]

the Code of Federal Regulations con-
tains regulations on oil and gas and
other mining operations, which, under
certain circumstances, may be applica-

ble to Indian resources.

[25 FR 3124, Apr. 12, 1960, as amended at 40

FR 20625, May 12, 1975]

§ 1.4 State and local regulation of the use

of Indian property.

(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 polit-

ical subdivision thereof limiting,
zoning or otherwise governing, regu-

lating, or controlling the use or devel-

opment of any real or personal proper-

ty, including water rights, shall be ap-

plicable to any such property leased

from or held or used under agreement

with and belonging to any Indian or

Indian tribe, band, or community that

is held in trust by the United States or

is subject to a restriction against alien-

ation imposed by the United States.

(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, ordinances, codes, resolutions,

rules or other regulations referred to

in paragraph (a) of this section as he

shall determine to be in the best inter-

est of the Indian owner or owners in

achieving the highest and best use of

such property. In determining wheth-

er, or to what extent, such laws, ordin-

ances, 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

may consider the use of, and restric-

tions or limitations on the use of,

other property in the vicinity, and

such other factors as he shall deem

appropriate.

[30 FR 7520, June 9, 1965]

1

[blocks in formation]

§2.1 Definitions.

As used in this part:

(a) "Person" includes any Indian or
non-Indian individual, corporation,
tribe, or other organization.

(b) "Interested party" means any
person whose interests would be ad-
versely affected by proceedings con-
ducted under this part.

(c) "Appellant" means any person
who files an appeal under this part.

(d) "Appeal" means a written re-
quest for correction of an action or de-
cision claimed to violate a person's
legal rights or privileges.

(e) "Complaint" means a written re-
quest for correction or reconsideration
of an action or decision claimed to be
legally or administratively incorrect
but not violative of the complainant's
own legal rights or privileges.

(f) "Right” means a favorable posi-
tion in a legal relationship, the contin-
ued enjoyment of which may not be
withdrawn save by a change in funda-
mental constitutional law.

(g) "Privilege” means a favorable po-
sition in a legal relationship, the con-
tinued enjoyment of which may be
withdrawn only upon a change in law,
statute or regulations upon which the
relationship is based.

[25 FR 9106, Sept. 22, 1960, as amended at
40 FR 20625, May 12, 1975]

§ 2.2 Applicability.

This part provides appeals proce-
dures for requesting correction of ac-
tions or decisions by officials of the
Bureau of Indian Affairs where the
action or decision is protested as a vio-
lation of a right or privilege of the ap-
pellant. Such rights or privileges must
be based upon fundamental constitu-
tional law, applicable Federal statutes,
treaties, or upon Departmental regula-
tions. Such regulations appear in the
FEDERAL REGISTER and, where of gener-
al application in Indian affairs, in
Title 25 of the Code of Federal Regu-
lations. "Appeals" shall be processed
in accordance with the regulations in
this part. "Complaints," on the other
hand, may be either informally or for-
mally made and ordinarily first pre-
sented to the office immediately re-
sponsible for the action or decision
questioned and thereafter if necessary
to higher officials. An action or deci-
sion which is subject to appeal shal' be
reduced to writing by the official
making the decision either at his own
instance or upon request of the peti-
tioner. The appeal procedures in this
part do not apply to decisions made
under statutes or other regulations
which provide specific appeals proce-
dures, nor to "complaints.'

[25 FR 9106, Sept. 22, 1960]

§ 2.3 Appeals.

[ocr errors]

(a) Except as otherwise provided by
law or regulation, any interested party
adversely affected by a decision of an
official under the supervision of an
Area Director of the Bureau of Indian
Affairs not approved by the Secretary
before the decision was made shall

have a right to appeal. Where administrative authority is held under an Area Director, the appeal shall be to him. A further appeal from decisions of the Area Director may then be made to the Commissioner of Indian Affairs. As prescribed in § 2.19(b) of this Part, further appeals from the decisions of the Commissioner of Indian Affairs may then be made to the Board of Indian Appeals.

(b) If no appeal is timely filed, the decision shall be final for the Department. The officer to whom the appeal is directed may require an adequate bond to protect the interest of any Indian, Indian tribe, or other party involved during the pendency of the appeal. In order to insure the exhaustion of administrative remedies before resort to court action, 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 be agency action subject to judicial review under 5 U.S.C. 704, unless when an appeal is filed, the officer to whom the appeal is made shall rule that the decision appealed from shall be made immediately effective.

(c) Appeals to the Board of Indian Appeals shall be made in the manner provided in Department Hearings and Appeals Procedures in 43 CFR Part 4, Subpart D, §§ 4.350-4.369.

[40 FR 20626, May 12, 1975]

§ 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 Indian 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.

[25 FR 9106, Sept. 22, 1960]

Subpart B-Appeals to the Area Director and Commissioner

SOURCE: 40 FR 20626, May 12, 1975, unless otherwise noted.

§ 2.10 Appeal, how taken; mandatory time limit.

(a) A notice of appeal shall be in writing and filed in the office of the official who made the decision that the appellant wishes to appeal. The date of receipt shall be noted or stamped on the notice of appeal by the receiving office. The official who made the decision being appealed from, 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 appeal shall give an identification of the case, a statement of reasons for the appeal, and any arguments the appellant wishes to make. The notice of appeal must be received in the office of the official who made the decision within 30 days after the date notice of the decision complained of is received by the appellant, together with all supporting documents. The appellant shall file his appeal with the Area Director or the Commissioner within 30 days after filing of the notice of appeal in the office of the official who made the decision being appealed.

(b) No extension of time will be granted for filing of the notice of appeal. Notices of appeal which are not timely filed will not be considered, and the case will be closed.

§ 2.11 Service of appeal documents.

(a) On the date of filing of the notice of appeal, the appellant, or the officer with whom the notice of appeal is filed when the appellant is an Indian or Indian tribe not represented by counsel, shall personally serve or mail a copy of the notice of appeal and/or other appeal and any supporting documents upon each interested party known to him as such, in the manner prescribed in paragraph (b) of this section. The proof of such service shall be filed with the Area Director or the Commissioner within 15 days after the date of service unless filed

« PreviousContinue »