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Notes

42 C.F.R. §§ 137.415–137.436

22 sections in range

§137.415. What decisions may an Indian Tribe appeal under § 137.415 through 137.436?

42 C.F.R. § 137.415

An Indian Tribe may appeal:
(a)
A decision to reject a final offer, or a portion thereof, under section 507(b) of the Act [25 U.S.C. 458aaa-6(b)];
(b)
A decision to reject a proposed amendment to a compact or funding agreement, or a portion thereof, under section 507(b) of the Act [25 U.S.C. 458aaa-6(b)];
(c)
A decision to rescind and reassume a compact or funding agreement, in whole or in part, under section 507(a)(2) of the Act [25 U.S.C. 458aaa-6(a)(2)], except for immediate reassumptions under section 507(a)(2)(C) of the Act [25 U.S.C. 458aaa-6(a)(2)(C)];
(d)
A decision to reject a final construction project proposal, or a portion thereof, under section 509(b) of the Act [25 U.S.C. 458aaa-8(b)] and subpart N of this part; and
(e)
For construction project agreements carried out under section 509 of the Act [25 U.S.C. 458aaa-8], a decision to reject project planning documents, design documents, or proposed amendments submitted by a Self-Governance Tribe under section 509(f) of the Act [25 U.S.C. 458aaa-8(f)] and subpart N of this part.
Notes, amendments, and revision history

Authority

Authority: 25 U.S.C. 458 et seq.

Source

Source: 67 FR 35342, May 17, 2002, unless otherwise noted.

§137.416. Do §§ 137.415 through 137.436 apply to any other disputes?

42 C.F.R. § 137.416

No, §§ 137.415 through 137.436 only apply to decisions listed in § 137.415. Specifically, §§ 137.415 through 137.436 do not apply to any other dispute, including, but not limited to:
(a)
Disputes arising under the terms of a compact, funding agreement, or construction project agreement that has been awarded;
(b)
Disputes arising from immediate reassumptions under section 507(a)(2)(C) of the Act [25 U.S.C. 458aaa-6(a)(2)(C)] and § 137.261 and 137.262, which are covered under § 137.440 through 137.445.
(c)
Other post-award contract disputes, which are covered under § 137.412.
(d)
Denials under the Freedom of Information Act, 5 U.S.C. 552, which may be appealed under 45 CFR part 5.
(e)
Decisions relating to the award of grants under section 503(e) of the Act [25 U.S.C. 458aaa-2(e)], which may be appealed under 45 CFR part 5.
Notes, amendments, and revision history

Authority

Authority: 25 U.S.C. 458 et seq.

Source

Source: 67 FR 35342, May 17, 2002, unless otherwise noted.

§137.418. How does an Indian Tribe know where and when to file its appeal from decisions made by IHS?

42 C.F.R. § 137.418

Every decision in any of the areas listed in § 137.415 must contain information which shall tell the Indian Tribe where and when to file the Indian Tribe's appeal. Each decision shall include the following statement:
Notes, amendments, and revision history

Amendments

[67 FR 35342, May 17, 2002, as amended at 80 FR 64353, Oct. 23, 2015]

Authority

Authority: 25 U.S.C. 458 et seq.

Source

Source: 67 FR 35342, May 17, 2002, unless otherwise noted.

Amendments

[67 FR 35342, May 17, 2002, as amended at 80 FR 64353, Oct. 23, 2015]

§137.419. What authority does the IBIA have under §§ 137.415 through 137.436?

42 C.F.R. § 137.419

The IBIA has the authority:
(a)
to conduct a hearing on the record;
(b)
to permit the parties to engage in full discovery relevant to any issue raised in the matter;
(c)
to issue a recommended decision; and
(d)
to take such action as necessary to insure rights specified in § 137.430.
Notes, amendments, and revision history

Authority

Authority: 25 U.S.C. 458 et seq.

Source

Source: 67 FR 35342, May 17, 2002, unless otherwise noted.

§137.420. Does an Indian Tribe have any options besides an appeal?

42 C.F.R. § 137.420

Yes, the Indian Tribe may request an informal conference. An informal conference is a way to resolve issues as quickly as possible, without the need for a formal hearing. Or, the Indian Tribe may, in lieu of filing an administrative appeal under this subpart or upon completion of an informal conference, file an action in Federal court pursuant to section 110 of the Act [25 U.S.C. 450m-1].
Notes, amendments, and revision history

Authority

Authority: 25 U.S.C. 458 et seq.

Source

Source: 67 FR 35342, May 17, 2002, unless otherwise noted.

§137.421. How does an Indian Tribe request an informal conference?

42 C.F.R. § 137.421

The Indian Tribe must file its request for an informal conference with the office of the person whose decision it is appealing, within 30 days of the day it receives the decision. The Indian Tribe may either hand-deliver the request for an informal conference to that person's office, or mail it by certified mail, return receipt requested. If the Indian Tribe mails the request, it will be considered filed on the date the Indian Tribe mailed it by certified mail.
Notes, amendments, and revision history

Authority

Authority: 25 U.S.C. 458 et seq.

Source

Source: 67 FR 35342, May 17, 2002, unless otherwise noted.

§137.422. How is an informal conference held?

42 C.F.R. § 137.422

(a)
The informal conference must be held within 30 days of the date the request was received, unless the Indian Tribe and the authorized representative of the Secretary agree on another date.
(b)
If possible, the informal conference will be held at the Indian Tribe's office. If the meeting cannot be held at the Indian Tribe's office and is held more than fifty miles from its office, the Secretary must arrange to pay transportation costs and per diem for incidental expenses to allow for adequate representation of the Indian Tribe.
(c)
The informal conference must be conducted by a designated representative of the Secretary.
(d)
Only people who are the designated representatives of the Indian Tribe, or authorized by the Secretary are allowed to make presentations at the informal conference. Such designated representatives may include Office of Tribal Self-Governance.
Notes, amendments, and revision history

Authority

Authority: 25 U.S.C. 458 et seq.

Source

Source: 67 FR 35342, May 17, 2002, unless otherwise noted.

§137.423. What happens after the informal conference?

42 C.F.R. § 137.423

(a)
Within 10 days of the informal conference, the person who conducted the informal conference must prepare and mail to the Indian Tribe a written report which summarizes what happened at the informal conference and a recommended decision.
(b)
Every report of an informal conference must contain the following language:
Notes, amendments, and revision history

Amendments

[67 FR 35342, May 17, 2002, as amended at 80 FR 64353, Oct. 23, 2015]

Authority

Authority: 25 U.S.C. 458 et seq.

Source

Source: 67 FR 35342, May 17, 2002, unless otherwise noted.

Amendments

[67 FR 35342, May 17, 2002, as amended at 80 FR 64353, Oct. 23, 2015]

§137.424. Is the recommended decision from the informal conference final for the Secretary?

42 C.F.R. § 137.424

No. If the Indian Tribe is dissatisfied with the recommended decision from the informal conference, it may still appeal the initial decision within 30 days of receiving the recommended decision and the report of the informal conference. If the Indian Tribe does not file a notice of appeal within 30 days, or before the expiration of the extension it has received under § 137.426 , the recommended decision of the informal conference becomes final for the Secretary and may be appealed to Federal court pursuant to section 110 of the Act [25 U.S.C. 450m-1].
Notes, amendments, and revision history

Authority

Authority: 25 U.S.C. 458 et seq.

Source

Source: 67 FR 35342, May 17, 2002, unless otherwise noted.

§137.425. How does an Indian Tribe appeal the initial decision if it does not request an informal conference or if it does not agree with the recommended decision resulting from the informal conference?

42 C.F.R. § 137.425

(a)
If the Indian Tribe decides to appeal, it must file a notice of appeal with the IBIA within 30 days of receiving either the initial decision or the recommended decision from the informal conference.
(b)
The Indian Tribe may either hand-deliver the notice of appeal to the IBIA, or mail it by certified mail, return receipt requested. If the Indian Tribe mails the Notice of Appeal, it will be considered filed on the date the Indian Tribe mailed it by certified mail. The Indian Tribe should mail the notice of appeal to: Board of Indian Appeals, U.S. Department of the Interior,801 North Quincy St., Suite 300, Arlington, VA 22203.
(c)
The Notice of Appeal must—
(1)
Briefly state why the Indian Tribe thinks the initial decision is wrong;
(2)
Briefly identify the issues involved in the appeal; and
(3)
State whether the Indian Tribe wants a hearing on the record, or whether the Indian Tribe wants to waive its right to a hearing.
(d)
The Indian Tribe must serve a copy of the notice of appeal upon the official whose decision it is appealing. The Indian Tribe must certify to the IBIA that it has done so.
(e)
The authorized representative of the Secretary will be considered a party to all appeals filed with the IBIA under the Act.
(f)
In lieu of filing an administrative appeal an Indian Tribe may proceed directly to Federal court pursuant to section 110 of the Act [25 U.S.C. 450m-1].
Notes, amendments, and revision history

Amendments

[67 FR 35342, May 17, 2002, as amended at 80 FR 64353, Oct. 23, 2015]

Authority

Authority: 25 U.S.C. 458 et seq.

Source

Source: 67 FR 35342, May 17, 2002, unless otherwise noted.

Amendments

[67 FR 35342, May 17, 2002, as amended at 80 FR 64353, Oct. 23, 2015]

§137.426. May an Indian Tribe get an extension of time to file a notice of appeal?

42 C.F.R. § 137.426

Yes, if the Indian Tribe needs additional time, the Indian Tribe may request an extension of time to file its Notice of Appeal with the IBIA within 60 days of receiving either the initial decision or the recommended decision resulting from the informal conference. The request of the Indian Tribe must be in writing, and must give a reason for not filing its notice of appeal within the 30-day time period. If the Indian Tribe has a valid reason for not filing its notice of appeal on time, it may receive an extension.
Notes, amendments, and revision history

Authority

Authority: 25 U.S.C. 458 et seq.

Source

Source: 67 FR 35342, May 17, 2002, unless otherwise noted.

§137.427. What happens after an Indian Tribe files an appeal?

42 C.F.R. § 137.427

(a)
Within 5 days of receiving the Indian Tribe's notice of appeal, the IBIA will decide whether the appeal falls under § 137.415. If so, the Indian Tribe is entitled to a hearing.
(b)
If the IBIA cannot make that decision based on the information included in the notice of appeal, the IBIA may ask for additional statements from the Indian Tribe, or from the appropriate Federal agency. If the IBIA asks for more statements, it will make its decision within 5 days of receiving those statements.
(c)
If the IBIA decides that the Indian Tribe is not entitled to a hearing or if the Indian Tribe has waived its right to a hearing on the record, the IBIA will dismiss the appeal and inform the Indian Tribe that it is not entitled to a hearing or has waived its right to a hearing.
Notes, amendments, and revision history

Authority

Authority: 25 U.S.C. 458 et seq.

Source

Source: 67 FR 35342, May 17, 2002, unless otherwise noted.

§137.428. How is a hearing arranged?

42 C.F.R. § 137.428

(a)
If a hearing is to be held, the IBIA will refer the Indian Tribe's case to the Hearings Division of the Office of Hearings and Appeals of the U.S. Department of the Interior. The case will then be assigned to an Administrative Law Judge (ALJ), appointed under 5 U.S.C. 3105.
(b)
Within 15 days of the date of the referral, the ALJ will hold a pre-hearing conference, by telephone or in person, to decide whether an evidentiary hearing is necessary, or whether it is possible to decide the appeal based on the written record. At the pre-hearing conference the ALJ will provide for:
(1)
A briefing and discovery schedule;
(2)
A schedule for the exchange of information, including, but not limited to witness and exhibit lists, if an evidentiary hearing is to be held;
(3)
The simplification or clarification of issues;
(4)
The limitation of the number of expert witnesses, or avoidance of similar cumulative evidence, if an evidentiary hearing is to be held;
(5)
The possibility of agreement disposing of all or any of the issues in dispute; and
(6)
Such other matters as may aid in the disposition of the appeal.
(c)
The ALJ shall order a written record to be made of any conference results that are not reflected in a transcript.
Notes, amendments, and revision history

Authority

Authority: 25 U.S.C. 458 et seq.

Source

Source: 67 FR 35342, May 17, 2002, unless otherwise noted.

§137.429. What happens when a hearing is necessary?

42 C.F.R. § 137.429

(a)
The ALJ must hold a hearing within 90 days of the date of the order referring the appeal to the ALJ, unless the parties agree to have the hearing on a later date.
(b)
At least 30 days before the hearing, the Secretary must file and serve the Indian Tribe with a response to the notice of appeal.
(c)
If the hearing is held more than 50 miles from the Indian Tribe's office, the Secretary must arrange to pay transportation costs and per diem for incidental expenses to allow for adequate representation of the Indian Tribe.
(d)
The hearing shall be conducted in accordance with the Administrative Procedure Act, 5 U.S.C. 556.
Notes, amendments, and revision history

Authority

Authority: 25 U.S.C. 458 et seq.

Source

Source: 67 FR 35342, May 17, 2002, unless otherwise noted.

§137.430. What is the Secretary's burden of proof for appeals covered by § 137.415?

42 C.F.R. § 137.430

As required by section 518 of the Act [25 U.S.C. 458aaa-17], the Secretary must demonstrate by clear and convincing evidence the validity of the grounds for the decision made and that the decision is fully consistent with provisions and policies of the Act.
Notes, amendments, and revision history

Authority

Authority: 25 U.S.C. 458 et seq.

Source

Source: 67 FR 35342, May 17, 2002, unless otherwise noted.

§137.431. What rights do Indian Tribes and the Secretary have during the appeal process?

42 C.F.R. § 137.431

Both the Indian Tribe and the Secretary have the same rights during the appeal process. These rights include the right to:
(a)
Be represented by legal counsel;
(b)
Have the parties provide witnesses who have knowledge of the relevant issues, including specific witnesses with that knowledge, who are requested by either party;
(c)
Cross-examine witnesses;
(d)
Introduce oral or documentary evidence, or both;
(e)
Require that oral testimony be under oath;
(f)
Receive a copy of the transcript of the hearing, and copies of all documentary evidence which is introduced at the hearing;
(g)
Compel the presence of witnesses, or the production of documents, or both, by subpoena at hearings or at depositions;
(h)
Take depositions, to request the production of documents, to serve interrogatories on other parties, and to request admissions; and
(i)
Any other procedural rights under the Administrative Procedure Act, 5 U.S.C. 556.
Notes, amendments, and revision history

Authority

Authority: 25 U.S.C. 458 et seq.

Source

Source: 67 FR 35342, May 17, 2002, unless otherwise noted.

§137.432. What happens after the hearing?

42 C.F.R. § 137.432

(a)
Within 30 days of the end of the formal hearing or any post-hearing briefing schedule established by the ALJ, the ALJ shall send all the parties a recommended decision, by certified mail, return receipt requested. The recommended decision must contain the ALJ's findings of fact and conclusions of law on all the issues. The recommended decision shall also state that the Indian Tribe has the right to object to the recommended decision.
(b)
The recommended decision shall contain the following statement:
Notes, amendments, and revision history

Authority

Authority: 25 U.S.C. 458 et seq.

Source

Source: 67 FR 35342, May 17, 2002, unless otherwise noted.

§137.433. Is the recommended decision always final?

42 C.F.R. § 137.433

No, any party to the appeal may file precise and specific written objections to the recommended decision, or any other comments, within 30 days of receiving the recommended decision. Objections must be served on all other parties. The recommended decision shall become final for the Secretary 30 days after the Indian Tribe receives the ALJs recommended decision, unless a written statement of objections is filed with the Secretary during the 30-day period. If no party files a written statement of objections within 30 days, the recommended decision shall become final for the Secretary.
Notes, amendments, and revision history

Authority

Authority: 25 U.S.C. 458 et seq.

Source

Source: 67 FR 35342, May 17, 2002, unless otherwise noted.

§137.434. If an Indian Tribe objects to the recommended decision, what will the Secretary do?

42 C.F.R. § 137.434

(a)
The Secretary has 45 days from the date it receives the final authorized submission in the appeal to modify, adopt, or reverse the recommended decision. The Secretary also may remand the case to the IBIA for further proceedings. If the Secretary does not modify or reverse the recommended decision or remand the case to the IBIA during that time, the recommended decision automatically becomes final.
(b)
When reviewing the recommended decision, the Secretary may consider and decide all issues properly raised by any party to the appeal, based on the record.
(c)
The decision of the Secretary must—
(1)
Be in writing;
(2)
Specify the findings of fact or conclusions of law that are modified or reversed;
(3)
Give reasons for the decision, based on the record; and
(4)
State that the decision is final for the Department.
Notes, amendments, and revision history

Authority

Authority: 25 U.S.C. 458 et seq.

Source

Source: 67 FR 35342, May 17, 2002, unless otherwise noted.