Attorney Contracts With Indian Tribes
[Federal Register: July 26, 2001 (Volume 66, Number 144)]
[Rules and Regulations]
[Page 38924-38926]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26jy01-8]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 89
RIN 1076-AE18
Attorney Contracts With Indian Tribes
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Final Rule.
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SUMMARY: We are issuing a final rule removing the text of certain
sections and thereafter reserving those sections of the regulations
pertaining to approval by the Secretary of the Interior of tribal
attorney contracts, except for those entered into by the Five Civilized
Tribes (Cherokee, Choctaw, Chickasaw, Creek and Seminole) in Oklahoma.
Congress repealed our statutory authority for such approvals of tribal
attorney contracts as part of the Indian Tribal Economic Development
and Contract Encouragement Act of 2000.
EFFECTIVE DATE: July 26, 2001.
FOR FURTHER INFORMATION CONTACT: Duncan L. Brown, Department of the
Interior, Office of the Secretary, 1849 C Street, NW., MS 7412 MIB,
Washington, DC 20240, telephone 202/208-4582.
SUPPLEMENTARY INFORMATION:
Background
In 1871, Congress enacted section 2103 of the Revised Statutes,
codified at 25 U.S.C. 81 (Section 81). It placed several restrictions,
including a requirement for approval by the Secretary of the Interior,
on contracts between any person and any Indian tribe or individual
Indians for
the payment or delivery of any money or other thing of value, in
present or in prospective, or for the granting or procuring any
privilege to him, or any other person in consideration of services
for said Indians relative to their lands, or to any claims growing
out of, or in reference to, annuities, installments, or other
moneys, claims, demands, or thing, under laws or treaties with the
United States, or official acts of any officers thereof, or in any
way connected with or due from the United States.
Section 81 reflected Congressional concern that Indian tribes and
individual Indians were incapable of protecting themselves from fraud
in their financial affairs. To that end, it also required that the
Secretary approve any contracts for legal services between an Indian
tribe and an attorney. Congress later confirmed the requirement for
Secretarial approval of tribal attorney contracts with the passage of
section 16 of the Indian Reorganization Act (IRA) of 1934, 25 U.S.C.
476 (Section 476 does not apply to the Five Civilized Tribes (Cherokee,
Choctaw, Chickasaw, Creek, and Seminole) in Oklahoma. The Secretary has
separate authority for approval of attorney contracts for the Five
Civilized Tribes under section 1 of Pub. L. 82-440, 25 U.S.C. 82a.)
In March 2000, Congress enacted the Indian Tribal Economic
Development and Contract Encouragement Act of 2000 (the Act), Pub. L.
106-179. The Act generally replaces Section 81 with a new provision
that does not include the requirement to approve tribal attorney
contracts. (We are publishing final regulations today at 25 CFR part 84
implementing the Act.) Subsection (f) of the Act repeals the portion of
25 U.S.C. 476 concerning approval of tribal attorney contracts. The Act
does not address the separate requirement that attorney contracts by
the Five Civilized Tribes must be approved by the Secretary.
Because the Act repealed much of our statutory authority for
approval of tribal attorney contracts, we are today repealing the
corresponding regulations in 25 CFR part 89. We are not repealing the
regulations concerning approval of tribal attorney contracts for the
Five Civilized Tribes, since Congress left our authority for those
approvals in place. We will, however, issue a separate proposed rule,
in consultation with the Five Civilized Tribes, to revise these
regulations, especially 25 CFR 89.30, in light of the amendments to
section 81. We are also not repealing our regulations in part 89 for
the payment of tribal attorneys fees.
Consistent with the long-standing principle that the federal trust
obligation may not be unilaterally terminated, the Act does not alter
those tribal constitutions that require federal approvals for specific
tribal actions, such as attorney contracts. Thus, the Secretary must
still approve or disapprove attorney contracts if a tribal constitution
so requires. The criteria, if any, for approval of such contracts will
be those in the tribal constitution and any relevant Federal law. As is
its policy, BIA will defer to the tribe's interpretation of its own law
regarding such approvals.
Notice and Public Procedure on This Final Rule
As noted above, this final rule is effective on the publication of
this notice. Under 5 U.S.C. 553(b)(3)(B), notice and public comment on
this final rule are impracticable, unnecessary, and contrary to the
public interest. In addition, we have good cause for making this rule
effective immediately under 5 U.S.C. 553(d)(3). Notice and public
procedure would be impracticable and unnecessary because this rule is
merely repealing regulations for which we now have no statutory
authority.
Waiting for notice and comment on this final rule would be contrary
to the public interest. Some of the comments on the proposed part 84
regulations expressed confusion as to the status of the part 89
regulations that we are repealing today. By making this a final rule
effective immediately, we end such confusion.
Procedural Requirements
A. Review Under Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the BIA
must determine whether the regulatory action is ``significant'' and
therefore subject to OMB review and the requirements of the Executive
Order. The Order defines ``significant regulatory action'' as one that
is likely to result in a rule that may:
[[Page 38925]]
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations or recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
This final rule is not a ``significant regulatory action'' from an
economic or policy standpoint. This final rule is pursuant to a
statutory mandate and is consistent with the Department's policy of
encouraging tribal self-determination and economic development. The
final rule reduces the number of contracts the Department has to review
each year. Prior to the amendments enacted under Pub. L. 106-179,
tribes had to submit certain contracts for approval by the Secretary of
the Interior for which Secretarial approval has now (through enactment
of Pub. L. 106-179) been deemed unnecessary. The final rule has no
direct or indirect impact on any other agency, does not materially
alter the budgetary impact of financial programs, or raise novel legal
or policy issues.
B. Review Under Executive Order 12988
With respect to the promulgation of new regulations, section 3(a)
of Executive Order 12988, ``Civil Justice Reform,'' 61 FR 4729
(February 7, 1996), imposes on Executive agencies the general duty to
adhere to the following requirements: (1) Eliminate drafting errors and
ambiguity; (2) write regulations to minimize litigation; and (3)
provide a clear legal standard for affected conduct rather than a
general standard and promote simplification and burden reduction. With
regard to the review required by section 3(a), section (b) of Executive
Order 12988 specifically requires that Executive agencies make every
reasonable effort to ensure that the regulation: (1) Clearly specifies
the preemptive effect, if any; (2) clearly specifies any effect on
existing Federal law or regulation; (3) provides a clear legal standard
for affected conduct while promoting simplification and burden
reduction; (4) specifies the retroactive effect, if any; (5) adequately
defines key terms; and (6) addresses other important issues affecting
clarity and general draftsmanship under any guidelines issued by the
Attorney General. Section 3(c) of Executive Order 12988 requires
Executive agencies to review regulations in light of applicable
standards in section 3(a) and 3(b) to determine whether they are met or
it is unreasonable to meet one or more of them. The Department of the
Interior has determined that, to the extent permitted by law, the final
rule meets the relevant standards of Executive Order 12988.
C. Review Under the Regulatory Flexibility Act
A Regulatory Flexibility analysis under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.) is not required for this final rule because
it applies only to tribal governments, not State and local governments.
D. Review Under the Small Business Regulatory Enforcement Act of 1996
(SBREFA)
This final rule is not a major rule as defined by Sec. 804 of the
Small Business Regulatory Enforcement Fairness Act of 1996. This finals
rule will not result in an annual effect on the economy of $100 million
or more. This final rule will not result in a major increase in costs
or prices. In fact, it is estimated that the Department will save time
and resources through the final rule because the number of contracts
submitted for Secretarial approval will be reduced. Therefore, no
increases in costs for administration will be realized and no prices
would be impacted through the streamlining of the contract approval
process within the Department and the BIA. The effect of the final rule
is to encourage and foster tribal contracting and, consequently,
strengthen tribal self-determination and economic development. This
final rule will not result in any significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of the United States-based companies to compete with
foreign-based companies in domestic and export markets.
E. Review Under the Paperwork Reduction Act
No information or recordkeeping requirements are imposed by this
final rule. Accordingly, no OMB clearance is required under the
Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
F. Review Under Executive Order 13132 Federalism
This final rule will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government.
G. Review Under the National Environmental Policy Act of 1969
This final rule is categorically excluded from the preparation of
an environmental assessment or an environmental impact statement under
the National Environmental Policy Act of 1969, 42 U.S.C. 4321, et seq.,
because it is of an administrative, legal, and procedural nature.
Further, no extraordinary circumstances exist to require preparation of
an environmental assessment or environmental impact statement.
H. Review Under the Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995, Public Law
104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on state, local, and tribal
governments and the private sector. Under section 202 of the Act, the
Department generally must prepare a written statement, including a
cost-benefit analysis, for proposed and final rules with ``Federal
mandates'' that may result in expenditures by state, local, and tribal
governments, in the aggregate, or by the private sector, of $100
million or more in any one year. This final rule will not result in the
expenditure by the state, local, and tribal governments, in the
aggregate, or by the private sector, of $100 million or more in any one
year.
I. Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of May 14, 1998,
``Consultation and Coordination with Indian Tribal Governments'' (63 FR
27655) and 512 DM 2, we have evaluated any potential effects upon
Federally recognized Indian tribes and have determined that there are
no potential adverse effects.
J. Review Under Executive Order 13211--Energy
In accordance with the President's Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355), we have determined that this
rulemaking is not likely to have a significant adverse effect on the
supply, distribution, or use of energy. This is merely an
administrative action (the removal of text of certain sections of
regulations concerning attorney contracts) and does
[[Page 38926]]
not otherwise qualify as significant regulatory action under Executive
Order 12866 or any successor order.
List of Subjects in 25 CFR Part 89
Indians--tribal government.
Under 25 U.S.C. 81 and as discussed in the preamble, amend Title
25, chapter I, of the Code of Federal Regulations as follows:
PART 89--ATTORNEY CONTRACTS WITH INDIAN TRIBES
1. The authority citation for part 89 is revised to read as
follows:
Authority: 5 U.S.C. 301; secs. 89.30 to 89.35 also issued under
25 U.S.C. 2, 9, and 82a; secs. 89.40 to 89.43 also issued under 25
U.S.C. 13, 450 et seq.
2. Sections 89.1 through 89.26 of part 89 are removed and reserved.
Dated: July 9, 2001.
Neal A. McCaleb,
Assistant Secretary--Indian Affairs.
[FR Doc. 01-18476 Filed 7-25-01; 8:45 am]
BILLING CODE 4310-02-M
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