[Federal Register Volume 64, Number 78 (Friday, April 23, 1999)]
[Rules and Regulations]
[Pages 19896-19898]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-10208]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 61
RIN 1076-AD89
Preparation of Rolls of Indians
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Bureau of Indian Affairs is amending its regulations
governing the compilation of rolls of Indians in order to reopen the
enrollment application process for the Sisseton and Wahpeton
Mississippi Sioux Tribe. The amendment reopens the enrollment period to
comply with a directive of the Eighth Circuit Court of Appeals, and to
modify the standards used to verify Sisseton and Wahpeton Mississippi
Sioux Tribe ancestry.
DATES: This rule becomes effective on May 24, 1999.
FOR FURTHER INFORMATION CONTACT: Daisy West, 202-208-2475.
SUPPLEMENTARY INFORMATION:
Background
The Bureau of Indian Affairs must reopen the enrollment application
process authorized under 25 U.S.C. 1300d-3(b) to give individuals
another opportunity to file applications to share in the Sisseton and
Wahpeton Mississippi Sioux judgment fund distribution. The Eighth
Circuit Court of Appeals decision in Loudner v. U.S., 108 F. 3d 896
(8th Cir. 1997), held that the Bureau of Indian Affairs did not give
proper notice of the application period, and that 5 months was not a
sufficient time period within which to file applications, in light of
the long delay in distribution of the fund.
This rule reopens the enrollment period to allow adequate time for
eligible persons to enroll. It also identifies the specific rolls that
we will use to verify Sisseton and Wahpeton Mississippi Sioux Tribe
ancestry as required by subsection 7(c) of Pub. L. 105-387.
On July 8, 1998, the Bureau of Indian Affairs (BIA) published a
proposed amendment to 25 CFR Part 61 in the Federal Register at 63 FR
36866. Since then, three things have happened:
(1) On November 13, 1998, Congress amended the Act of October 25,
1972, Pub. L. 555, 86 Stat. 1168, to include a provision concerning
verification of Sisseton and Wahpeton Mississippi Sioux Tribe ancestry.
(2) BIA held a meeting in Sioux Falls, South Dakota with a group of
approximately 30 Sisseton and Wahpeton Mississippi Sioux lineal
descendants and others to discuss the proposed rule that was published
on July 8, 1998.
(3) We have received two public comments on the proposed rule.
In light of these three occurences, we have made several changes to
the provisions that we published in the proposed rule. We have
explained these changes in the section of this preamble titled
``Changes to the Proposed Rule.''
Review of Public Comments
We received written comments from two individuals. Those comments
and our responses are as follows:
1. Comment: We take issue with the timing proposed for establishing
the application deadline date and object to steps two and three as set
forth under the provisions of ``Application Deadline''. Due to the
court proceedings in the Loudner case, there has already been a great
deal of publicity, correspondence, newspaper articles, and published
summaries about the rights of lineal descendants since October 1994.
There have also been at least three public meetings at the Crow Creek
and Yankton Sioux Reservations in South Dakota. For that reason, the
lineal descendants who would be entitled to share in the judgment fund
distribution already know that judgment funds are available and that
they can apply for them. The application period should be set for a
fixed period of 60 days.
Response: While there has been publicity in North and South Dakota
about the reopening of this enrollment period, there has been little if
any publicity about this in other parts of the United States. A
flexible application period will allow us to continue accepting
applications until the application review process is almost complete
without significantly affecting the time required to complete the
review process. It will also give the lineal descendants who live away
from the Sioux Indian reservations the maximum opportunity to file
applications. As mentioned elsewhere in this preamble, we are reducing
the number of days specified in step one of the application process
from 180 days to 90 days because of the number of applications already
on file with the Aberdeen Area Office.
2. Comment: If the Bureau of Indian Affairs cannot process the
applications within 90 days, the rule should either allow the Federal
Court to conduct the review or enable the Secretary to retain an
independent commercial agency to do the review.
Response: The approximately 3,000 applications that we have
received are mostly undocumented. They do not include copies of birth
certificates, marriage certificates, proof of paternity, or, if
deceased, death certificates. The applications also do not include
family history charts that show each generation between the applicant
and an ancestor named on the Sisseton and Wahpeton Mississippi Sioux
Tribe rolls specified under 25 U.S.C. 1300d-26(c). If we were to limit
the review process to 90 days, we would have to deny most of the
applications because they don't include these documents. We would
prefer not to do this because most of the applicants are probably
Sisseton and Wahpeton Mississippi Sioux lineal descendants. By
extending the review process we will have time to review each
application and ask the applicant for any information that we cannot
find in our records.
We also do not think it is feasible for us to ``allow the Federal
Court to conduct the review'' under federal regulations. If the court
were to assume jurisdiction of the review, it would probably still
leave the review process with us. We would be required to submit
several thousand recommendations to the court for determination. Each
determination would then be subject to appeal.
If the review is conducted by the Bureau of Indian Affairs, an
independent contractor, or under the supervision of the court, the same
problem remains--insufficient documentation to verify the applicant's
ancestry. If an applicant's ancestry cannot be sufficiently documented,
then the application must be denied under 25 U.S.C. 1300d-26(c).
As we've already explained, a 90-day limitation on the review
process would force us to deny the many applications that do not
include proof of Sisseton and Wahpeton Mississippi Sioux ancestry.
Changes to the Proposed Rule
As a result of the new legislation, we have made the following
changes to the rule:
(1) We have added new criteria relating to ancestry in
Sec. 61.4(s)(1)(i)(A)-(B). These new criteria replace the
[[Page 19897]]
criterion in Sec. 61.4(s)(1)(iv) of the proposed rule.
(2) We have added new names to the list in Sec. 61.4(s)(1)(v). This
list was in Sec. 61.4(s)(1)(iv) of the proposed rule.
As a result of the public meeting and comments, we have changed the
procedure that we will use to calculate the deadline for receiving
applications. Specifically, we have reduced the number of days that we
will use in step one of this procedure from 180 to 90. (We have
explained the procedure we will use to calculate the application
deadline in the section of this preamble titled ``Application
Deadline.'') We have made this change because approximately 3,000
individuals have already contacted the BIA Aberdeen Area Office
concerning the reopening of the Sisseton and Wahpeton Mississippi Sioux
enrollment application process.
Application Deadline
We have not established a firm application deadline in this rule.
In order to allow adequate time for submitting and processing
applications we will establish a deadline using the following three
steps:
Step 1. On August 23, 1999, we will count all applications that we
have received.
Step 2. We will note the date on which we complete processing of 90
percent of the applications that we receive by August 23, 1999.
Step 3. The application deadline will be 90 days after the date in
Step 2.
For example, if we receive 10 applications by August 23, 1999, the
final application deadline date will be 90 days after we process 9
applications. Similarly, if we receive 10,000 applications by August
23, 1999, the final application deadline date will be 90 days after we
process 9,000 applications.
After we establish the application deadline, we will notify the
same area directors, agency superintendents, and local newspapers that
we notify after publishing this rule. (See the section in this preamble
titled ``Additional Notice and Public Meetings.'') Our notification
will include application/enrollment criteria.
Additional Notice and Public Meetings
We will take several steps to ensure that all potential applicants
are informed of the reopening of the enrollment application period.
(1) We will notify all BIA Area Directors and Agency
Superintendents and require them to post notices in area offices,
agency offices, community centers on and near reservations, and in
Indian Health Clinics.
(2) We will notify tribal newspapers and newspapers of general
circulation in major communities in Montana, North Dakota, South
Dakota, Nebraska, and Minnesota.
(3) We will hold community meetings on Indian reservations
identified from the 1909 roll, including: Cheyenne River, Crow Creek,
Upper Sioux, Sisseton-Wahpeton, Spirit Lake, Fort Peck, Standing Rock,
Lower Brule, Yankton, Rosebud, and Pine Ridge.
At each of the community meetings we will:
(1) Inform potential beneficiaries of the reopening of the
enrollment process for this judgment fund;
(2) Inform potential beneficiaries of eligibility criteria; and
(3) Help applicants to prepare and file applications.
Previously Submitted Applications
We have on file applications submitted under Sec. 61.4(s) that we
denied because we received them after November 1, 1973. We will now
process these applications. If you previously filed an application that
we denied, you may wish to confirm that we have it and are processing
it. To do this, please call the Aberdeen Area Tribal Enrollment Office
at (605) 226-7376.
Regulatory Planning and Review (E.O. 12866)
This document is not a significant rule and is not subject to
review by the Office of Management and Budget under Executive Order
12866.
(1) This rule will not have an effect of $100 million or more on
the economy. It will not adversely affect in a material way the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities.
(2) This rule will not create a serious inconsistency or otherwise
interfere with an action taken or planned by another agency.
(3) This rule does not alter the budgetary effects or entitlement,
grants, user fees, or loan programs or the rights or obligations of
their recipients.
(4) This rule does not raise novel legal or policy issues.
Regulatory Flexibility Act
The Department of the Interior certifies that this document will
not have a significant economic effect on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
Because it makes technical changes that do not affect the substance of
the rules there is no economic effect at all, other than to improve the
utility of the rules for users.
Small Business Regulatory Enforcement Fairness Act (SBREFA).
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule:
(1) Does not have an annual effect on the economy of $100 million
or more.
(2) Will not cause a major increase in cost or prices for
consumers, individual industries, Federal, State, or geographic
regions.
(3) Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises.
Unfunded Mandates Reform Act
This rule does not impose an unfunded mandate on State, local, or
tribal governments or the private sector of more than $100 million per
year. The rule does not have a significant or unique effect on State,
local or tribal governments or the private sector. A statement
containing the information required by the Unfunded Mandates Reform Act
(2 U.S.C. 1531 et seq.) is not required.
Takings (E.O. 12630)
In accordance with Executive Order 12630, the rule does not have
significant takings implications. A takings implication assessment is
not required.
Federalism (E.O. 12612)
In accordance with Executive Order 12612, the rule does not have
significant Federalism effects because it pertains solely to Federal-
tribal relations and will not interfere with the roles, rights and
responsibilities of states.
Civil Justice Reform (E.O. 12988)
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that this rule does not unduly burden the
judicial system and meets the requirements of sections 3(a) and 3(b)(2)
of the Order.
Paperwork Reduction Act
This rule requires collection of information from many enrollees.
As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d),
the Department submitted a copy of the application to the Office of
Management and Budget (OMB) for its review. OMB approved the
application form and assigned form number 1076-0145 with the expiration
date of September 30, 2001.
National Environmental Policy Act
This rule does not constitute a major Federal action significantly
affecting the
[[Page 19898]]
quality of the human environment. A detailed statement under the
National Environmental Policy Act of 1969 is not required.
List of Subjects in 25 CFR Part 61
Indians, Indians--claims.
Dated: April 14, 1999.
Kevin Gover,
Assistant Secretary for Indian Affairs.
For the reasons given in the preamble, Part 61 of Chapter 1 of
Title 25 of the Code of Federal Regulations is amended as follows.
PART 61--PREPARATION OF ROLLS OF INDIANS
1. The authority citation for 25 CFR part 61 is revised to read as
follows:
Authority: 5 U.S.C. 301; 25 U.S.C. 2 and 9, 1300d-3(b), 1300d-
26, 1401 et seq.
2. In Sec. 61.4, paragraph (s) is revised to read as follows:
Sec. 61.4 Qualifications for enrollment and the deadline for filing
application forms.
* * * * *
(s) Sisseton and Wahpeton Mississippi Sioux Tribe. (1) Persons
meeting the criteria in this paragraph are entitled to enroll under 25
U.S.C. 1300d-3(b) to share in the distribution of certain funds derived
from a judgment awarded to the Mississippi Sioux Indians. To be
eligible a person must:
(i) Be a lineal descendent of the Sisseton and Wahpeton Mississippi
Sioux Tribe;
(A) Those individuals who applied for enrollment before January 1,
1998, and whose applications were approved by the Aberdeen Area
Director before that same date, are deemed to appear in records and
rolls acceptable to the Secretary or have a lineal ancestor whose name
appears in these records;
(B) Those individuals who apply for enrollment after January 1,
1998, or whose application was not approved by the Aberdeen Area
Director before that same date, must be able to trace ancestry to a
specific Sisseton or Wahpeton Mississippi Sioux Tribe lineal ancestor
who was listed on:
(1) The 1909 Sisseton and Wahpeton annuity roll;
(2) The list of Sisseton and Wahpeton Sioux prisoners convicted for
participating in the outbreak referred to as the ``1862 Minnesota
Outbreak'';
(3) The list of Sioux scouts, soldiers, and heirs identified as
Sisseton and Wahpeton Sioux on the roll prepared under the Act of March
3, 1891 (26 Stat. 989 et seq., Chapter 543); or
(4) Any other Sisseton or Wahpeton payment or census roll that
preceded a roll referred to in paragraphs (s)(1)(i)(B)(1), (2), or (3)
of this section.
(ii) Be living on October 25, 1972;
(iii) Be a citizen of the United States;
(iv) Not be listed on the membership rolls for the following
tribes:
(A) The Flandreau Santee Sioux Tribe of South Dakota;
(B) The Santee Sioux Tribe of Nebraska;
(C) The Lower Sioux Indian Community at Morton, Minnesota;
(D) The Prairie Island Indian Community at Welch, Minnesota;
(E) The Shakopee Mdewakanton Sioux Community of Minnesota;
(F) The Spirit Lake Tribe (formerly known as the Devils Lake Sioux
of North Dakota);
(G) The Sisseton-Wahpeton Sioux Tribe of South Dakota; or
(H) The Assiniboine and Sioux Tribes of the Fort Peck Reservation.
(v) Not be listed on the roll of Mdewakantan and Wahpakoota lineal
descendants prepared under 25 U.S.C. 1300d-1(b).
(2) The initial enrollment application period that closed on
November 1, 1973, is reopened as of May 24, 1999. The application
period will remain open until further notice.
* * * * *
[FR Doc. 99-10208 Filed 4-22-99; 8:45 am]
BILLING CODE 4310-02-P
