[Federal Register Volume 59, Number 156 (Monday, August 15, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-19860]
[[Page Unknown]]
[Federal Register: August 15, 1994]
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Part VIII
Department of the Interior
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Bureau of Indian Affairs
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25 CFR Part 115
Individual Indian Money Accounts; Proposed Rule
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 115
RIN 1076-AC65
Individual Indian Money Accounts
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Proposed rule.
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SUMMARY: The Bureau of Indian Affairs (BIA) is proposing to revise and
replace the existing regulations contained in 25 CFR Part 115 governing
the establishment, management, control, closure and deletion of
Individual Indian Money (IIM) accounts, by the Secretary of the
Interior. The growth in the number of IIM accounts maintained by the
BIA makes it necessary and desirable for the Secretary of the Interior
to promulgate revised regulations that will secure the integrity of the
system and ensure that the IIM accounts will be maintained in an
efficient and accountable manner.
The proposed regulations clarify and expand upon current
regulations, and to the extent practicable, incorporate and standardize
BIA practices for maintaining and administering IIM accounts.
DATES: Comments must be received on before October 14, 1994.
ADDRESSES: Written comments should be directed to the Bureau of Indian
Affairs, Office of Trust Funds Management, 505 Marquette N.W., Suite
700, Albuquerque, New Mexico 87102.
FOR FURTHER INFORMATION CONTACT: Mr. Jim Parris, Bureau of Indian
Affairs, Office of Trust Funds Management, 505 Marquette NW, Suite 700,
Albuquerque, New Mexico 87102, telephone number 505-766-3233.
SUPPLEMENTARY INFORMATION: This proposed rulemaking action will revise
Part 115 to Chapter 1 of Title 25 of the Code of Federal Regulations,
which contains general regulations governing Individual Indian Money
(IIM) accounts, to set forth authorities, policy, and procedures to be
followed governing the establishment, management, control, closure, and
deletion of Individual Indian Money (IIM) accounts, by the Secretary of
the Interior, with certain exceptions which are set forth in 25 CFR
Parts 16 and 116 (Five Civilized Tribes), 25 CFR Parts 17 and 117
(Osage).
Section 115.1 This section sets forth the purpose and scope of
these regulations. The Secretary of the Interior is obligated by
statute to establish, manage, and control individual Indian money
accounts, and has been granted the authority to promulgate regulations
to implement such responsibilities.
Section 115.2 This section revises former Sec. 115.1 and expands
upon the definitions for the purpose of clarification, standardization,
and to avoid ambiguities in the implementation of Part 115.
Section 115.3 This section is new and sets forth the authority and
procedures for establishing IIM accounts.
Section 115.3(a) This paragraph formalizes the authority of the
Secretary to establish IIM accounts. To avoid potential duplication of
IIM accounts and resulting inconsistencies in the management of an
individual's trust funds, this paragraph authorizes only one IIM
account per account holder.
Section 115.3(b) This paragraph specifies the Bureau of Indian
Affairs agency is responsible for establishing and maintaining an IIM
account.
Section 115.3(c) This paragraph requires that the social security
number for the account holder be furnished to the Secretary thereby
enabling the Secretary to meet the requirement to comply with the
reporting and filing requirements set forth by the Internal Revenue
Code, including the Tax Equity and Fiscal Responsibility Act of 1982,
and those of the various states. See Sec. 115.10.
Section 115.4 This is a new section which formally recognizes the
authority of the Secretary to close and delete certain IIM accounts. It
is noted that the closure or deletion of an IIM account does not
preclude the Secretary from reopening or re-establishing such account.
Section 115.4(a) This paragraph establishes the circumstances
under which the Secretary will close an IIM account.
Section 115.4(b) This paragraph provides for deletion of an IIM
account from the system after one year from the date of closure, thus
allowing for the Secretary to meet tax reporting and filing
requirements.
Section 115.5 This section revises former Sec. 115.6. Conditions
do arise requiring the Secretary to accept and place monies which are
not derived from trust resources, tribal judgment awards, or other
Federal Agencies in IIM accounts to meet critical situations as defined
in Sec. 115(8)(c).
Section 115.6 This section is new and recognizes the statutory
authority of the Secretary to invest funds for the benefit of account
holders.
Section 115.7 This section is new and provides direction and
standardization of the disbursement policy and procedures for IIM
funds. Section 115.7(a) This paragraph requires that funds will be
automatically disbursed unless otherwise provided by this part.
Section 115.7(b) This paragraph formally recognizes the general
statutory prohibition of payment of judgments and/or levies, or
placement of liens against funds from IIM accounts, unless such levies
and/or liens are specifically permitted by statute or Title 25 of the
Code of Federal Regulations. This paragraph also recognizes the
authority of the Secretary to apply an account holder's funds against
delinquent debts due the United States and/or the account holder's
tribe, subject to certain limitations and conditions.
Section 115.7(c) This paragraph recognizes the Secretary's
authority to supervise certain categories of IIM accounts and to place
conditions on disbursements pursuant to Sec. 115.8.
Section 115.7(d) This paragraph recognizes the Secretary's
authority to correct posting and recording errors which are clerical in
nature, provided corrections are made prior to disbursement of funds.
Where the posting error has resulted in a wrongful disbursement, the
Secretary may place restrictions on the accounts affected by the
disbursement until such time that the wrongful disbursement is
rectified. In these cases, the regulation affords opportunity for
notice and hearing to the affected account holder pursuant to
Sec. 115.12.
Section 115.7(e) This paragraph recognizes the authority of the
Secretary to place restrictions on an IIM account to which
distributions of estate proceeds have been made pursuant to the probate
order of the administrative law judge, and subsequent modifications to
the order require reallocation of the initial distribution. The account
holder so affected is given an opportunity to dispute the equity of the
restrictions.
Section 115.7(f) This paragraph provides for prompt payment to be
made to rightful owner(s) within an specified time when an erroneous
disbursement has occurred.
Section 115.8 This section revises former Sec. 115.4 and
recognizes the authority of Federal agencies to deposit monies into the
IIM account for the benefit of minors or adults, non compos mentis or
under other legal disability, for whom no legal guardian or fiduciary
has been appointed. This section provides for the supervision of IIM
accounts for six categories of account holders.
Section 115.8(a) This paragraph denotes ``Minors'' as supervised
account holders.
Section 115.8(a)(1) This subparagraph revises former Sec. 115.4(a)
and provides for the supervision of funds of a minor, except for those
funds derived from per capita shares of tribal judgment awards.
Section 115.8(a)(2) This subparagraph revises former Sec. 115.4(b)
and provides for the supervision of funds of a minor which have been
derived from per capita shares of tribal judgment awards. The
limitation on the amount of funds disbursed and reference to
withdrawals upon reaching the age of majority have been removed so as
to avoid potential conflict with any congressional plan associated with
the judgment award.
Section 115.8(b) This paragraph revises former Sec. 115.5 and
denotes ``Adults, non compos mentis or under other legal disability''
as supervised account holders. This paragraph provides for conditions
of disbursement similar to those of minor account holders.
Section 115.8(c) This paragraph is new and denotes ``Account
holders requesting and requiring assistance'' as supervised account
holders. This paragraph references Sec. 115.3(d) which clarifies the
right of those account holders, whose IIM accounts are not otherwise
restricted under this part, to place conditions of disbursement upon
their IIM accounts. Under this new paragraph, such conditions of
disbursement shall not take effect unless approved by the Secretary.
Section 115.8(d) This paragraph is new and denotes ``Account
holders--Whereabouts unknown'' as supervised account holders.
Section 115.8(e) This paragraph replaces Sec. 115.11 and revises
the language to read ``Deceased account holders other than those of the
Five Civilized Tribes and the Osage Tribe'' as supervised account
holders. Part 15 of this chapter was modified to add ``the Osage
Tribe'' and this paragraph will revise the language to include the
addition of the Osage Tribe also. This paragraph references 25 CFR Part
15 which in turn references 43 CFR Part 4, Subpart D. When the
provisions governing the administration of these IIM accounts were
incorporated into 43 CFR part 4, Subpart D, in 1971, the language
appearing in Sec. 115.11 was not modified accordingly. This paragraph
will correct that oversight.
Section 115.8(f) This paragraph denotes ``Deceased account holders
of the Five Civilized Tribes'' as supervised account holders and
revises former Sec. 115.12. The substance of this regulation has not
been significantly changed.
Section 115.8(g) This paragraph is new and provides restoration of
unclaimed IIM monies to tribal ownership or deposit to the general fund
of the U.S. Treasury after six (6) years.
Section 115.8(h) This paragraph is new and provides guidance in
handling proceeds of sale of capital assets in compliance with proposed
use plans approved by the Secretary or authorized representative prior
to sale.
Section 115.8(i) This paragraphs is new and provides direction in
dealing with creditor claims against an account holder.
Section 115.9 This paragraph is new and sets forth authority for
providing statements to IIM account holders.
Section 115.9(a) This paragraph formalizes the authority of the
Secretary to provide periodic statements of IIM accounts to account
holders.
Section 115.9(b) This paragraph formalizes the authority of the
Secretary to provide account statements to minors and adults, non
compos mentis or under other legal disability.
Section 115.9(c) This paragraph recognizes the statutory
obligation of the Secretary to provide explanation of payments of oil
and gas royalties to respective account holders, as required by 30
U.S.C. 1701.
Section 115.10 This section is new and recognizes the reporting
requirements imposed upon the Secretary by the Internal Revenue Code
and regulations promulgated thereunder. This section also authorizes
the Secretary to meet the filing requirements of the Internal Revenue
Service, and the various states, for and on behalf of supervised
account holders.
Section 115.11 This is a new section which incorporates, by cross
reference, 25 CFR Part 103, Sec. 103.33 Assignment of Income, into this
part.
Section 115.12 This section revises former Sec. 115.10 and
clarifies and elaborates upon the application of the notice and hearing
requirements of the Administrative Procedure Act, for the purposes of
this part.
Section 115.13 This section revises former Sec. 115.13 and brings
the regulation into compliance with 25 U.S.C. 954(e).
Section 115.14 This section revises former Sec. 115.14 and updates
the reference to Sec. 115.12.
The policy of the Department of the Interior is, whenever,
practical, to afford the public an opportunity to participate in the
rulemaking process. Accordingly, interested persons may submit written
comments regarding the proposed rule to the locations identified in the
Addresses section of this preamble.
The Department of the Interior has determined that this rule is not
a significant regulatory action under Executive Order 12866, and
therefore will not be reviewed by the Office of Management and Budget.
This rule will not have a significant economic impact on a substantial
number of small entities under the Regulatory Flexibility Act (5 U.S.C.
601 et seq.).
The Department of the Interior has determined that this proposed
rule does not constitute a major Federal action significantly affecting
the quality of the human environment and that no detailed statement is
required pursuant to the National Environmental Policy Act of 1969.
The Department of the Interior has certified to the Office of
Management and Budget that this proposed regulation meets the
applicable standards provided in Sections 2(a) and 2(b)(2) of Executive
Order 12778.
The Department of the Interior has determined that this proposed
rule does not have significant takings implications.
The Department of the Interior has determined that this proposed
rule does not have significant federalism effects.
This rule does not contain information collection requirements
which require approval of the Office of Management and Budget under 44
U.S.C. 3501 et seq.
The primary author of this proposed rule is William F. Benjamin,
Jr., Chief, Branch of Payments, Bureau of Indian Affairs, Division of
Accounting Management, Office of Management and Administration.
However, personnel from other offices of the Bureau of Indian Affairs,
the Department of the Interior, Office of the Solicitor--Indian Affairs
and tribal representatives participated in the developing of the
regulations both on matters of substance and style.
List of Subjects in 25 CFR Part 115
Indians--business and finance; Administrative practices and
procedures.
For the reasons set out in the preamble, 25 CFR part 115 is
proposed to be revised to read as follows.
PART 115--INDIVIDUAL INDIAN MONEY ACCOUNTS
Table of Contents
Sec.
115.1 Purpose, scope and information collection.
115.2 Definitions.
115.3 Establishing IIM accounts.
115.4 Closure and deletion of accounts.
115.5 Voluntary deposits.
115.6 Investment of IIM funds.
115.7 Disbursement policy and procedures.
115.8 Supervised IIM accounts.
115.9 Statement of IIM account.
115.10 Tax requirements.
115.11 Assignment of income.
115.12 Notice and hearing.
115.13 Assets of members of the Aqua Caliente Band of Cahuilla
Indians.
115.14 Appeals.
Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9; 25 U.S.C. 954(e); 43
U.S.C. 1457.
Sec. 115.1 Purpose, scope and information collection.
(a) These regulations set forth the authorities, policy, and
procedures governing the establishment, management, control, closure,
and deletion of Individual Indian Money (IIM) accounts, by the
Secretary of the Interior. Certain exceptions to these rules are set
forth in 25 CFR Parts 16 and 116 (Five Civilized Tribes) and 25 CFR
Parts 17 and 117 (Osage).
(b) These regulations do not contain information collection
requirements that require the approval of the Office of Management and
Budget under 44 U.S.C. 3501 et seq.
(c) Disclosure of any account information from IIM Ledgers and
Cards and IIM Case Files systems is controlled by the Privacy Act of
1974, as amended, 5 U.S.C. 522a.
Sec. 115.2 Definitions.
Account holder means a beneficiary of an IIM account.
Adult means an account holder who has reached the age of 18.
Agency means an Indian agency or other field unit of the Bureau of
Indian Affairs having trust or restricted Indian land under its
immediate jurisdiction.
Closure means placing an IIM account in a status whereby such
account is no longer accessible for accounting activity.
Deletion means elimination of an account from the IIM accounting
system.
Funds means monies deposited and/or held in an IIM account whether
derived from trust and restricted resources, Federal entities, tribal
judgment awards or voluntary deposits.
Inactive means there has been no posting into or out of an IIM
account for 13 months.
Individual Indian Money (IIM) account means a U.S. Treasury account
established and controlled by the Secretary of the Interior for the
purpose of depositing, maintaining and disbursing funds for the benefit
of an individual recognized by the Secretary as an Indian or Alaskan
Native to whom the United States owes a trust and/or fiduciary
responsibility.
Interest means the earnings derived from the investment of IIM
funds during the time they are in the custody of the Secretary.
ISSDA means Indian Service Special Disbursing Agent.
Minor means an account holder who has not reached the age of 18.
Secretary means the Secretary of the Interior or authorized
representative, and, for purposes of Sec. 115.13, means the officer in
charge of the Palm Springs Office, Bureau of Indian Affairs.
Supervised IIM account means an IIM account administered by the
Secretary for a minor, an account holder declared non compos mentis or
under other legal disability, an account holder requesting or requiring
assistance with the management of his/her funds, an account holder
whose whereabouts are unknown, or a deceased account holder.
Voluntary deposit means acceptance of a deposit of money by the
Secretary or authorized representative from an account holder, or any
person or entity, into an IIM account. Monies deposited by a Federal
entity pursuant to 25 U.S.C. 14 or by a tribe are authorized deposits
and shall not be considered voluntary deposits.
Sec. 115.3 Establishing IIM accounts.
(a) The Secretary is authorized to establish one IIM account per
account holder except as otherwise provided by statute.
(b) The Secretary shall establish an IIM account at the agency as
indicated by the respective account holder's identification number. The
responsible agency is normally the agency that serves the tribe in
which the account holder is enrolled.
(c) Prior to the establishment of an IIM account, the account
holder's social security number shall be provided to the Secretary.
Sec. 115.4 Closure and deletion of accounts.
(a) The Secretary may close an IIM account under the following
circumstances:
(1) Upon determination that an account is inactive for one or more
of the following reasons:
(i) Readily available evidence indicates that no further trust
income is forthcoming;
(ii) The account holder does not own any trust assets; or
(iii) The account has a balance of less than $15 that has not been
disbursed during the year due to administrative policy. In this case,
the funds shall be disbursed at year end closing regardless of amount
and the account closed provided the conditions of (i) and/or (ii) above
apply. The provisions of Sec. 115.8 (d) and (g) shall apply for an
account holder whose whereabouts are unknown.
(2) Upon fulfillment of the orders of the Administrative Law Judge,
Office of Hearings and Appeals, the restoration to tribal ownership as
provided Sec. 115.8(g) or like authority as provided by statute;
(b) After an IIM account has been closed for a period of one year,
the Secretary will delete the account from the IIM accounting system
within the following six month period.
Sec. 115.5 Voluntary deposits.
Voluntary deposits for the sole purpose of investment will not be
accepted by the Secretary. Voluntary deposits shall be excepted under
the following conditions:
(a) Monies received from Federal agencies pursuant to 25 U.S.C. 14
for the benefit of a minor or adult, non compos mentis or under other
legal disability, for whom no legal guardian or fiduciary has been
appointed may be deposited into the account holder's IIM account; or
(b) Monies from any source may be deposited into an account when
the account holder has been determined to be in need of assistance by
the Secretary in accordance with the provisions of Sec. 115.8(c), or to
avoid a substantial hardship explained in a recorded written
justification approved by the Secretary and maintained in the records
of the account holder.
Sec. 115.6 Investment of IIM funds.
The Secretary is authorized, in his/her discretion, to invest IIM
funds in accordance with 25 U.S.C. 162a during the time they are in the
custody of the Bureau of Indian Affairs.
Sec. 115.7 Disbursement policy and procedures.
(a) Except as otherwise provided in this part, the Secretary shall
automatically disburse to the account holder funds and accrued interest
funds held in an unrestricted, unsupervised IIM account. All
disbursements shall be made at times and places the Secretary may
designate.
(b) Funds shall not be disbursed for the payment of judgments,
levies, and/or liens, absent specific authorization by statute and/or
Title 25 of the Code of Federal Regulations except as provided in
paragraph (c) of this section.
(c) Funds of an account holder may be applied by the Secretary
against delinquent debts to the United States or to the tribe of which
the account holder is a member, unless such payments are prohibited by
acts of Congress; and against money judgments rendered by Courts of
Indian Offenses or any ordinances or codes of the tribe not prohibited
by Federal laws.
(1) A temporary restriction shall be placed on the affected IIM
account on receipt of an order of execution of a Court of Indian
Offenses money judgment pending final determination of collection
action by the Secretary.
(2) Notice of the proposed collection action shall be provided to
the account holder pursuant to Sec. 115.12 at the time the temporary
restriction is placed.
(d) Funds of an account holder that have been placed under
supervision pursuant to the authorities set forth in Sec. 115.8 (a),
(b), (c), (d), (e) or (f) shall be disbursed in strict accordance with
the provisions of the applicable authority. Although a restriction may
be placed on an adult's IIM account at the time supervision is approved
by the Secretary under authority of Sec. 115.8 (b), (c) or (d), notice
must be provided to the account holder as required in Sec. 115.12.
(e) Posting and/or recording errors may be corrected at the
Secretary's discretion, provided disbursement has not been made. If an
erroneous disbursement is made, corrective action will be taken
pursuant to Sec. 115.7(f).
(f) If an IIM account(s) is credited pursuant to a probate order of
an administrative law judge and that order is subsequently modified to
effect a different distribution of the estate, a temporary restriction
will be placed on the affected IIM account(s) immediately upon receipt
of the modification. The restriction shall remain effective until the
Secretary determines the final collection action to be taken. The
Secretary shall notify the affected account holder(s), pursuant to
Sec. 115.12, at the time the temporary restriction is placed.
(g) In no instance shall an erroneous disbursement delay prompt
payment to the rightful owner.
(1) Within five working days after discovery that an erroneous
disbursement has been made from an IIM account, the deputy ISSDA shall
transmit a complete report of the incident to the ISSDA, and the Agency
Superintendent shall place a restriction on the IIM account of the
beneficiary of the error.
(2) The report shall indicate: the cause of the error; recommended
corrective action; impact on account holder; and when collection of any
overpayment might be expected and its source.
(3) The ISSDA shall, within ten working days of receipt of the
report: authorize payment to the rightful owner from available
appropriated funds subject to the Secretary's delegated authority,
place a restriction on the IIM account of the erroneous beneficiary
and/or direct any other remedial action as he/she determines required
or appropriate.
(4) Upon receipt of instruction from the ISSDA, the Agency
Superintendent shall immediately issue the notice of the proposed
collection action to the erroneous beneficiary in accordance with
Sec. 115.12.
Sec. 115.8 Supervised IIM accounts.
(a) Minors. (1) Funds of a minor, except as otherwise provided in
paragraph (a)(2) of this section, shall be disbursed, in amounts deemed
by the Secretary to be necessary in the best interest of the minor for
the minor's support, health, education, and/or welfare. Disbursements
shall be made upon such conditions as the Secretary may prescribe to
parents, legal guardians, fiduciaries, or persons having the control
and custody of the minor, or to the minor directly, under a written
plan approved by the Secretary. The Secretary may modify an approved
plan whenever he/she deems modification to be in the best interest of
the minor.
(2) A minor's per capita share of a tribal judgment award,
including accrued interest, shall be disbursed in accordance with the
congressionally approved distribution plan and 25 CFR Sec. 87.10.
(b) Adults under legal disability. The funds of an adult who is non
compos mentis or under other legal disability shall be disbursed in
amounts deemed by the Secretary to be in the best interest of the
adult. Disbursements shall be made for the adult's support, health,
education, and/or welfare. Funds shall be disbursed upon such
conditions as the Secretary may prescribe to legal guardians,
fiduciaries, or persons having the control and custody of the adult; or
to the adult directly, under a written plan approved by the Secretary.
The Secretary may modify the approved plan whenever he/she deems
modification to be in the best interest of the adult.
(c) Accounts in need of assistance. The funds of adults who are not
non compos mentis or under other legal disability, whom the Secretary
finds to be in need of assistance in the management of their affairs,
may be disbursed on the basis of an approved written plan containing
terms and conditions requested by the adult or prescribed by the
Secretary.
(1) Disbursement plans are authorized to protect the interests of
the elderly, handicapped, addicted, imprisoned, children, and spouses
affected by divorce or separation or those who suffer other social or
physical problems and impairments.
(2) When this action is taken at the written request of the account
holder, he/she shall authorize the Secretary to waive all terms and
conditions in emergencies where the account holder may become unable to
nullify them because of illness or incapacity.
(3) The Secretary or authorized representative may modify an
approved plan wherever it is deemed in the best interest of the adult,
but shall record all such changes.
(4) All disbursement plans shall be supported by a social services
summary and recommendation, approved by the Secretary, justifying the
determination of need. The recommendation will be maintained in the
account holder's social services case file.
(d) Whereabouts unknown. The IIM account of an account holder whose
whereabouts are unknown shall be supervised until closed pursuant to
Sec. 115.4. Agency supervision of the account shall include continuing
and diligent search for the account holder and shall be done with
oversight and assistance from the Office of Trust Funds Management.
(e) Deceased other than Five Civilized Tribes and the Osage Tribe.
The account of a deceased Indian other than those of the Five Civilized
Tribes and the Osage Tribe shall be supervised under 25 CFR 15. Funds
from the account may be disbursed for:
(1) Payment of obligations previously authorized, including
authorized expenses for last illness;
(2) Authorized funeral expenses;
(3) Support of dependent members of the family of the decedent in
amounts deemed necessary to avoid hardship and consistent with the
value of the estate and the interests of probable heirs;
(4) Necessary expenses to conserve the estate pending the
completion of probate proceedings; and
(5) Probate fees and claims allowed pursuant to part 15 of this
chapter.
(f) Deceased--Five Civilized Tribes. Funds of a deceased account
holder who was a member of one of the Five Civilized Tribes may be
disbursed for: payment of ad valorem and personal property taxes;
obligations approved by the Secretary prior to the death of the account
holder; expenses of last illness and burial; claims found to be just
and reasonable that are not barred by the statute of limitations; the
cost of determining heirs to restricted property or funds by the State
courts; and claims allowed pursuant to 25 CFR 16.
(g) Restorations and deposits to general fund. The following types
of funds and accrued interest shall be restored to tribal ownership or
deposited to the general fund of the Treasury in accordance with 25 USC
164, 165:
(1) Unclaimed per capita shares or other distributions; and
(2) Individualization, segregation, or proration of Indian tribal
or group funds redeposited to an individual's IIM account and held in
trust by the United States for a period of six years from the date of
the administrative directive to make the payment.
(h) Sale of capital assets. Funds of an adult that are derived from
the sale of capital assets shall be expended only for those specific
purposes agreed to and approved by the Secretary prior to sale. The
proposed use plan will normally be presented in conjunction with an
application for sale of trust property submitted for approval.
(i) Creditor claims. In accordance with Sec. 115.11, funds may not
be disbursed to satisfy creditor claims against an account holder for
purposes not approved in advance by the Secretary, except as provided
in Sec. 115.7(b).
Sec. 115.9 Statement of IIM account.
(a) Statements of IIM accounts shall be provided to account
holders, at least quarterly. An account holder may request current
account status reports at any time at his/her Agency office.
(b) Statements of IIM accounts for minors and non compos mentis or
otherwise legally disabled adults, shall be furnished to parents, legal
guardians, fiduciaries or persons having control and/or custody of the
account holder, or to the account holder directly, under a plan
approved by the Secretary.
(c) A separate explanation shall be provided to an account holder
at the time of disbursement of oil and gas royalties from the account.
An account holder may request further explanation and assistance on oil
and gas disbursements at any time at the Agency office.
Sec. 115.10 Tax requirements.
(a) The Secretary shall comply with all applicable reporting
requirements of the Internal Revenue Service and the various States.
(b) The Secretary is authorized to meet all filing requirements of
the Internal Revenue Service and the various States for and on behalf
of supervised account holders.
Sec. 115.11 Assignment of income.
(a) Any assignment of future trust income shall require a
contractual agreement to be executed between a non-Federal/tribal
creditor and an account holder. The assignment agreement shall be made
at the time a loan arrangement is consummated. The agreement shall be
approved by the Secretary in advance of the receipt of the income into
the account.
(b) Future income obligated under an approved agreement shall be
disbursed only in accordance with the terms of the agreement, subject
to any deductions specifically authorized or directed by acts of
Congress or modifications thereof. An approved agreement can be
withdrawn or modified prior to fulfillment only with the approval of
the Secretary. Assignments of income shall be administered in
accordance with the provisions of Sec. 103.33.
Sec. 115.12 Notice and hearing.
(a) If, under Sec. 115.7(b), (d) (e) or (f) or Sec. 115.8(b), (c),
or (d), the disbursement of funds to an account holder is restricted,
or it is proposed that these funds be used to pay creditors, the
account holder must be notified in writing as follows:
(1) Notice must be given at the commencement of the restrictions or
at least 40 calendar days prior to the proposed disbursement of funds
from the IIM account.
(2) The notice must state the reasons for the restrictions or
proposed disbursement.
(3) The notice shall inform the account holder of the right to a
hearing and that a written request for a hearing must be received by
the Secretary within 30 calendar days of the account holder's receiving
the notice of the proposed action.
(4) The notice of proposed action shall be delivered to the account
holder in person, by Certified Mail-Return Receipt Requested, or if
this is not possible, it shall be published in a newspaper of general
circulation likely to be accessible to the account holder. The date
indicating delivery of the notice, which shall commence the 40 or 30
day periods, shall be confirmed by one of the following:
(i) Signed receipt;
(ii) Affidavit of delivery; or
(iii) Publication in a newspaper of general circulation if personal
delivery cannot be made.
(5) The notice shall include a statement of the rights listed in
paragraph (c) of this section.
(6) The notice shall advise that, if the account holder wishes to
have the delinquent debt or money judgment paid without delay and
without a hearing, he/she can sign a form furnished with the notice.
(7) If the amount of funds in account holder's IIM account exceeds
the amount to be disbursed in accordance with the notice, the excess
shall be disbursed to the account holder without delay.
(b) If the account holder fails to request a hearing within 30
days, he/she is deemed to consent to the restrictions on the
disbursement of funds from the IIM account and to the disbursement, if
any, in accordance with the notice.
(c) The Secretary shall conduct a hearing, if requested as
specified above, to determine whether to continue the restrictions on
disbursement, and/or allow disbursements in accordance with the notice.
The following are requirements for a fair and equitable hearing in
accordance with 25 USC 164, 165:
(1) The hearing shall be held within ten (10) working days of the
Secretary's receipt of the account holder's request for a hearing.
(2) The account holder shall be given the opportunity to be heard
orally and/or in writing.
(3) The account holder shall be allowed: to hear the case for the
proposed action; to present testimony, arguments, and evidence; to
present witnesses, and to question and rebut opposing witnesses.
(4) The account holder may be heard on why the restrictions on
disbursement, and/or disbursement in accordance with the notice, should
not be made. The account holder may not re-litigate the facts and
circumstances giving rise to the restrictions on his/her IIM account.
(5) The account holder may retain an attorney or other
representative at his/her expense.
(6) The decision to uphold or overturn the proposed action shall be
made by the Secretary and must be based upon information presented or
referred to at the hearing.
(7) The Secretary shall make provisions for recording the hearing
and shall preserve the record for the duration of any applicable appeal
process. Tape recording the hearing is sufficient.
(8) The decision of the Secretary shall be provided in writing to
all parties concerned within ten working days following the hearing.
(d) No funds, except as provided in subsection (b) of this section,
shall be paid or disbursed from an IIM account or applied against a
debt, or a judgment of a tribal court or court of Indian offenses,
until the decision has become final in accordance with the appeal
procedures provided for in Sec. 115.14.
Sec. 115.13 Assets of members of the Agua Caliente Band of Cahuilla
Indians.
(a) The Secretary is authorized, in his/her discretion, to invest
funds of members of the Agua Caliente Band of Cahuilla Indians in
accordance with 25 U.S.C. 954(e).
(b) The provisions of this section apply to money or other personal
property held by the United States in trust for members of the Agua
Caliente Band of Cahuilla Indians, which, with the consent of its
members, may be used, advanced, expended, exchanged, deposited,
disposed of, invested, and reinvested by the officer in charge of the
Palm Springs office, Bureau of Indian Affairs, in accordance with 25
U.S.C. 954(e). Consent shall not be required if the Secretary
determines a member to be incompetent by reason of minority or
otherwise, or where the estate of a deceased member remains unprobated.
(c) An adult member of the Agua Caliente Band shall be presumed
competent unless and until proven incompetent in accordance with the
procedures in this section.
(1) When the Secretary believes, based upon relevant and reliable
evidence, that an adult member of the Agua Caliente Band is incompetent
to participate in the management of funds, the Secretary shall request
the Director, Office of Hearings and Appeals, to appoint an
Administrative Law Judge to conduct a hearing for the purpose of
determining the competency of the member.
(2) At the same time the hearing request is made to the Office of
Hearings and Appeals, the Secretary shall provide notice to the member
that a hearing is being requested. The notice shall be in writing and
shall be served on the member, personally or by certified mail. The
Secretary shall assist the member in preparing for the hearing, and
shall assist him/her to retain an attorney, at the member's expense, if
he/she wishes to be represented by counsel.
(3) The Administrative Law Judge shall conduct a hearing in the
State of California within sixty days of the date of notice, unless the
member requests and/or consents to a reasonable alternative place and/
or date. The hearing shall be conducted in accordance with the
requirements of the Administrative Procedure Act, 5 U.S.C. 554. The
burden of proving incompetency of the member shall be on the Secretary.
(4) Within 30 days after the hearing, the Administrative Law Judge
shall submit a recommended decision as to the member's incompetency and
shall transmit it, together with the record of the proceedings,
including the hearing transcript, to the Board of Indian Appeals.
Within 90 days of receipt of the recommended decision and record, the
Board of Indian Appeals shall render a decision on the member's
competency, based upon federal law, which shall be final for the
Department of the Interior.
(5) Following a final Departmental determination that a member is
incompetent, the member's consent shall not be a condition to the
Secretary's use, advance, expenditure, exchange, deposit, disposal,
investment, or reinvestment of the member's funds.
(d) Investments made by the Secretary shall be limited to those
investments of principal and interest that are guaranteed by the United
States as provided in 25 U.S.C. 162a.
(e) The investment of funds in a deceased member's estate account
shall be limited to periods of one year or less.
Sec. 115.14 Appeals.
Appeals from an action taken by an official of the Bureau of Indian
Affairs may be taken pursuant to 25 CFR Part 2, subject to the terms of
Sec. 115.12 where applicable.
Ada E. Deer,
Assistant Secretary--Indian Affairs.
[FR Doc. 94-19860 Filed 8-12-94; 8:45 am]
BILLING CODE 4310-02-P
