Preparation of a Roll of Independent Seminole Indians of Florida; Final Rule DEPARTMENT OF THE INTERIOR

SUMMARY: The Bureau of Indian Affairs (BIA) is adding a new part 67 to

title 25 of the Code of Federal Regulations to provide procedures to

govern the preparation, certification and approval of a descendancy

roll of Independent Seminole Indians of Florida. The descendancy roll

of Independent Seminole Indians of Florida will be used as the basis

for compiling a list of persons eligible for a per capita distribution

of a portion of the Seminole judgment funds.

EFFECTIVE DATE: January 20, 1994.

FOR FURTHER INFORMATION CONTACT: Bill D. Ott, Area Director, Bureau of

Indian Affairs, Eastern Area Office, 3701 North Fairfax Drive, Mailstop

260, Virginia Square Plaza, Arlington, Virginia 22201, telephone

number: (703) 235-3006.

SUPPLEMENTARY INFORMATION: This final rule is published in exercise of

the authority delegated by the Secretary of the Interior (Secretary) to

the Assistant Secretary-Indian Affairs in the Departmental Manual at

209 DM 8.

Section 7 of the Act of April 30, 1990, (Act) Public Law 101-277,

104 Stat. 143, which provides for the use and distribution of funds

awarded the Seminole Indians in Dockets 73, 151, and 73-A of the Indian

Claims Commission, directs the Secretary to compile a roll of certain

individuals of Seminole Indian descent under regulations prescribed by

the Secretary. To be eligible for enrollment, Seminole Indian

descendants must have been living on April 30, 1990, must be listed on

or be lineal descendants of persons listed on the annotated Florida

Seminole Agency Census of 1957 as independent Seminoles, and must not

be members of a federally-recognized tribe.

To establish eligibility for enrollment, the final rule requires

persons to file or have filed on their behalf an application form with

the Superintendent, Seminole Agency, Bureau of Indian Affairs, by the

deadline specified in proposed Sec. 67.4(b). The deadline is 150 days

from the date of publication of the final rule in the Federal Register.

An application filed more than 150 days after the date of publication

of the final rule will be rejected for failure to file on time

regardless of whether the applicant otherwise meets the qualifications

for enrollment.

Section 7(d) of the Act provides that except for persons who apply

for enrollment and are determined eligible and who apply for and accept

a per capita share of the payment, ``distribution of the award in

accordance with this Act shall not be construed to impair, diminish or

affect in any manner any rights and claims of the independent Seminole

Indians, either as a group or individually, to any lands or natural

resources in the State.'' Because acceptance of a per capita share of

the judgment funds may impair, diminish or affect the claims of the

Independent Seminole Indians to lands or natural resources in the State

of Florida, the BIA has determined that individual applicants must be

made aware of this before accepting a per capita share of the judgment

funds.

The final rule provides for the applicant to make an election on

the application form as to whether he or she wishes to share in the per

capita payment. In other words, individuals will not only be applying

to establish that they qualify for enrollment, but will also be

electing whether they wish to receive a per capita payment of the

judgment funds if they are determined to meet the qualifications for

enrollment.

Because of the serious potential impact of such an election, the

final rule restricts the making of the election to accept the per

capita payment to adult applicants or to legal guardians of incompetent

adults or, in the case of minors, such election is restricted to the

parents or legal guardians. Therefore, those who fail to elect to share

in the payment will not be eligible to share in the payment even though

they have qualified for enrollment.

In most cases where the BIA is preparing a roll of Indians, general

public notice and actual notice to potentially eligible individual

beneficiaries is provided. Actual notice to potentially eligible

individuals is possible because of the existence, in most cases, of a

previously prepared roll or a tribal membership roll. In this instance,

there exists no previously prepared or tribal membership roll because

the Independent Seminole Indians of Florida have not been affiliated

with any other group or tribe of Indians.

The census roll prepared in 1957 does not show addresses for the

persons named on the roll. Even if there were addresses shown, after

the elapse of more than 30 years, the addresses would be so out-of-date

that it would be impractical to use them. Consequently, no general

mailings of notices to potentially eligible beneficiaries is

anticipated. Reasonable effort will be made to place notices for public

display in community buildings, tribal buildings and Indian centers as

well as publishing notices in newspapers in appropriate localities

throughout the State of Florida. It is also anticipated that public

meetings will be held in appropriate localities in the State of Florida

to explain the provisions of the Act and the need to apply for

enrollment by the deadline specified.

The information collection requirement contained in this final rule

does not require the approval of the Office of Management and Budget

under 44 U.S.C. 3501 et seq.

The Department of the Interior (Department) has determined that

this is not a major rule under Executive Order (E.O.) 12291 because

only a limited number of individuals will be affected. Those

individuals who are enrolled will be eligible to participate in the

distribution of a portion of a relatively small judgment award granted

the Seminole Indians.

Comments and Changes

A proposed rule to add a new part 67 to title 25 of the CFR was

published for public comment in the Federal Register on Wednesday,

September 30, 1992, (57 FR 45252). Interested persons were invited to

submit comments by October 30, 1992. The period for comment on proposed

part 67 to title 25 of the CFR to provide procedures to govern the

preparation, certification, and approval of a descendancy roll of

Independent Seminole Indians of Florida, closed on October 30, 1992. No

timely written comments were received.

The Department has certified to the Office of Management and Budget

that these final regulations meet the applicable standards provided in

sections 2(a) and 2(b) (2) of E.O. 12778.

The Department has determined that this rule will not have a

significant economic impact on a substantial number of small entities

within the meaning of the Regulatory Flexibility Act (5 U.S.C. 601 et

seq.).

In accordance with E.O. 12630, the Department has determined that

this rule does not have significant takings implications.

The Department has determined that this rule does not have

significant federalism effects.

The Department has determined that this rule is not a major Federal

action significantly affecting the quality of the human environment and

that neither an environmental assessment nor an environmental impact

statement is required pursuant to the National Environmental Policy Act

of 1969.

List of Subjects in 25 CFR Part 67

Indians--claims, Indians--enrollment.

For the reasons set out in the preamble, a new part 67 of title 25,

chapter I of the Code of Federal Regulations is added as set forth

below.

PART 67--PREPARATION OF A ROLL OF INDEPENDENT SEMINOLE INDIANS OF

FLORIDA

Sec.

67.1 Definitions.

67.2 Purpose.

67.3 Information collection.

67.4 Qualifications for enrollment and the deadline for filing

application forms.

67.5 Notices.

67.6 Application forms.

67.7 Filing of application forms.

67.8 Burden of proof.

67.9 Action by Superintendent.

67.10 Appeals.

67.11 Decision of the Area Director on appeals.

67.12 Exhaustion of administrative remedies.

67.13 Preparation, certification and approval of the roll.

67.14 Preparation of a per capita payment roll.

67.15 Special instructions.

Authority: 5 U.S.C. 301; 25 U.S.C. 2 and 9; and Pub.L. 101-277, 104

Stat. 143.

Sec. 67.1 Definitions.

As used in this part:

Act means the Act of Congress approved April 30, 1990, Public Law

101-277, 104 Stat. 143, which authorizes the use and distribution of

funds awarded the Seminole Indians in Dockets 73, 151, and 73-A of the

Indian Claims Commission.

Adopted person means a person whose natural parents' parental

rights have been terminated by court order and persons other than the

natural parents have exercised or do exercise parental rights with

regard to the adopted person.

Applicant means a person who is making application for inclusion on

the roll prepared by the Secretary pursuant to the Act of April 30,

1990, by either personally filing an application or by having a sponsor

complete and file an application on his or her behalf.

Assistant Secretary means the Assistant Secretary for Indian

Affairs or authorized representative.

BIA means the Bureau of Indian Affairs, Department of the Interior.

Commissioner means the Commissioner of Indian Affairs or authorized

representative.

Director means the Area Director, Eastern Area Office, Bureau of

Indian Affairs or authorized representative.

Lineal descendant(s) means those persons who are the issue of the

ancestor through whom enrollment rights are claimed; namely, the

children, grandchildren, etc. It does not include collateral relatives

such as brothers, sisters, nieces, nephews, cousins, etc., or adopted

children, adopted grandchildren, etc.

Living means born on or before and alive on the date specified.

Secretary means the Secretary of the Interior or authorized

representative.

Sponsor means any person who files an application for enrollment or

an appeal on behalf of another person.

Superintendent means the Superintendent, Seminole Agency, Bureau of

Indian Affairs or authorized representative.

Sec. 67.2 Purpose.

The regulations in this part govern the compilation of a roll of

persons who meet the requirements specified in section 7 of the Act who

will be eligible to share in the distribution of a portion of the

judgment funds awarded the Seminole Indians in Dockets 73, 151, and 73-

A of the Indian Claims Commission.

Sec. 67.3 Information collection.

The information collection requirement contained in this part does

not require approval by the Office of Management and Budget under 44

U.S.C. 3501 et seq.

Sec. 67.4 Qualifications for enrollment and the deadline for filing

application forms.

(a) The roll shall contain the names of persons of Seminole Indian

descent who:

(1) Were born on or before, and living on April 30, 1990;

(2) Are listed on or who are lineal descendants of persons listed

on the annotated Seminole Agency Census of 1957 as Independent

Seminoles; and

(3) Are not members of an Indian tribe recognized by the Secretary

on the most recent list of such Indian tribes published in the Federal

Register.

(b) To qualify for enrollment, all persons must file application

forms with the Superintendent, Seminole Agency, Bureau of Indian

Affairs, 6075 Stirling Road, Hollywood, Florida 33024 by June 19, 1994.

An application filed after June 19, 1994 will be rejected for failure

to file on time regardless of whether the applicant otherwise meets the

qualifications for enrollment.

Sec. 67.5 Notices.

(a) The Director shall give notice to all Area Directors of the BIA

and all Superintendents within the jurisdiction of the Director of the

preparation of the roll for public display in BIA field offices.

Notices shall be placed for public display in community buildings,

tribal buildings and Indian centers.

(b) The Superintendent shall, on the basis of available residence

data, publish, and republish when advisable, notices of the preparation

of the roll in appropriate localities utilizing media suitable to the

circumstances.

(c) Notices shall advise of the preparation of the roll and the

relevant procedures to be followed, including the qualifications for

enrollment and the deadline for filing application forms to be eligible

for enrollment. The notices shall also state how and where application

forms may be obtained, as well as the name, address, and telephone

number of a person who may be contacted for further information.

Sec. 67.6 Application forms.

(a) Application forms to be filed by or for applicants for

enrollment shall be furnished by the Area Director, Superintendent, or

other designated persons upon written or oral request. Each person

furnishing application forms shall keep a record of the names of

individuals to whom forms are given, as well as the control numbers of

the forms and the date furnished. Instructions for completing and

filing application forms shall be furnished with each form. The form

shall indicate prominently the deadline date for filing application

forms.

(b) Among other information, each application form shall contain:

(1) Certification as to whether the application form is for a

natural child or an adopted child of the parent through whom

eligibility is claimed.

(2) If the application form is filed by a sponsor, the name and

address of the sponsor and the sponsor's relationship to the applicant.

(3) A control number for the purpose of keeping a record of forms

furnished to interested individuals.

(4) Certification that the information given on the application

form is true to the best of the knowledge and belief of the person

filing the application. Criminal penalties are provided by statute for

knowingly filing false information in such applications (18 U.S.C.

1001).

(5) An election by the applicant as to whether the applicant, if

determined to meet the qualifications for enrollment, wishes to share

in the per capita payment.

(c) Sponsors may file application forms on behalf of other persons,

but may not file elections to share in the per capita payment.

(1) The election to share in the per capita payment shall be made

as follows:

(i) If the applicant is a competent adult, the election shall be

made by the applicant.

(ii) If the applicant is not a competent adult, the election shall

be made by the applicant's legal guardian.

(iii) If the applicant is a minor, the election shall be made by

the applicant's parent or legal guardian.

(2) When an application is filed by a sponsor, the Superintendent

shall:

(i) Furnish the sponsor a copy of the application for forwarding to

the applicant or his/her guardian for completion of the election to

share in the per capita payment; and

(ii) Make a reasonable effort to furnish a copy of the application

directly to the applicant or his/her guardian for completion of the

election to share in the per capita payment.

(d) Every applicant or sponsor shall furnish the applicant's

mailing address on the application form. Thereafter, the applicant or

sponsor shall promptly notify the Superintendent of any change in

address, giving appropriate identification of the applicant. Otherwise,

the mailing address as stated on the application form shall be accepted

as the address of record for all purposes under the regulations in this

part.

Sec. 67.7 Filing of application forms.

(a) Application forms filed by mail must be postmarked no later

than midnight on the deadline date specified in Sec. 67.4(b). Where

there is no postmark date showing on the envelope or the postmark date

is illegible, application forms mailed from within the United States,

including Alaska and Hawaii, received more than 15 days after the

specified deadline, and application forms mailed from outside of the

United States received more than 30 days after the specified deadline

in the office of the Superintendent, will be rejected for failure to

file in time.

(b) Application forms filed by personal delivery must be received

in the office of the Superintendent no later than close of business on

the deadline date specified in Sec. 67.4(b).

(c) If the deadline date for filing application forms falls on a

Saturday, Sunday, legal holiday, or other nonbusiness day, the deadline

will be the next working day thereafter.

Sec. 67.8 Burden of proof.

The burden of proof rests upon the applicant to establish

eligibility for enrollment. Documentary evidence such as birth

certificates, death certificates, baptismal records, copies of probate

findings, or affidavits may be used to support claims of eligibility

for enrollment. Records of the BIA may be used to establish

eligibility.

Sec. 67.9 Action by Superintendent.

(a) The Superintendent shall notify each individual applicant or

sponsor, as applicable, upon receipt of an application. The

Superintendent shall consider each application and all documentation.

Upon determining an individual's eligibility, the Superintendent shall

notify the individual; the parent or guardian having legal custody of a

minor or incompetent adult; or the sponsor, as applicable.

(1) Written notification of the Superintendent's decision shall be

sent to the applicant by certified mail, for receipt by the addressee

only, return receipt requested.

(2) If a decision by the Superintendent is sent out of the United

States, registered mail will be used. If a certified or registered

notice is returned as ``Unclaimed,'' the Superintendent shall remail

the notice by regular mail together with an acknowledgment of receipt

form to be completed by the addressee and returned to the

Superintendent. If the acknowledgment of receipt is not returned,

computation of the period specified for changes in election and for

appeals shall begin on the date the notice was remailed. A certified or

registered notice returned for any reason other than ``Unclaimed'' need

not be remailed.

(3) If an individual files an application on behalf of more than

one person, one notice of eligibility or adverse action may be

addressed to the person who filed the applications. However, the notice

must list the name of each person to whom the notice is applicable.

Where an individual is represented by a sponsor, notification to the

sponsor of eligibility or adverse action shall be considered

notification to the individual.

(b) On the basis of an applicant's election with regard to whether

he or she wishes to share in the per capita payment, the

Superintendent's decision shall also state whether the applicant's name

will be included on the per capita payment roll. If no election has

been made by the applicant, parent, or legal guardian on the

application form, the individual applicant's name will not be included

on the per capita payment roll.

(1) The eligible individual will have 30 days from notification of

his or her eligibility in which to request a change in the election of

whether to share in the per capita payment. Computation of the 30-day

period will be in accordance with Sec. 67.9(a)(2) and Sec. 67.9(d).

Upon written request received within the 30-day period, to avoid

hardship or gross injustice, the Superintendent may grant an applicant

additional time, not to exceed 30 days, in which to submit a request

for a change in election.

(2) A change in the election of whether to share in the per capita

payment can only be made by competent adult applicants; by the legal

guardian of an incompetent adult; or, in the case of a minor, by the

minor's parent or legal guardian.

(c) If the Superintendent determines that an applicant is not

eligible for enrollment as an Independent Seminole Indian of Florida,

the Superintendent shall notify the applicant of the decision and shall

fully explain the reasons for the adverse action and explain the

rejected applicant's right to appeal to the Area Director. The decision

of the Area Director shall be final and conclusive.

(d) Except as provided in paragraph (a)(2) of this section, a

notice of adverse action concerning an individual's enrollment

eligibility or the inclusion or exclusion of an individual's name on

the per capita payment roll is considered to have been made, and

computation of the period for appeal shall begin on the earliest of the

following dates:

(1) Delivery date indicated on the return receipt;

(2) Date of acknowledgment of receipt;

(3) Date of personal delivery; or

(4) Date of return by the post office of an undelivered certified

or registered letter.

(e) To avoid hardship or gross injustice, the Area Director or the

Superintendent may waive technical deficiencies in application forms or

other submittals. Failure to file by the deadline date does not

constitute a technical deficiency.

Sec. 67.10 Appeals.

(a) Appeals from or on behalf of applicants who have been rejected

for enrollment must be in writing and must be filed pursuant to part 62

of this chapter. When the appeal is on behalf of more than one person,

the name of each person must be listed in the appeal.

(b) A copy of part 62 of this chapter shall be furnished with each

notice of adverse action. All sections of part 62 shall be applicable

to appeals filed under this part except Secs. 62.10, 62.11 and 62.12.

Sec. 67.11 Decision of the Area Director on appeals.

(a) The Area Director will consider the record as presented,

together with such additional information as may be considered

pertinent. Any additional information relied upon shall be specifically

identified in the decision.

(b) The decision of the Area Director on an appeal shall be final

and conclusive, and written notice, which shall state that the decision

is final and conclusive, shall be given to the individual applicant,

parent, legal guardian, or sponsor, as applicable.

(c) If an individual files an appeal on behalf of more than one

applicant, one notice of the Area Director's decision may be addressed

to the person who filed the appeal. The Area Director's decision must

list the name of each person to whom the decision is applicable. Where

an individual applicant is represented by a sponsor, notification to

the sponsor of the Area Director's decision is sufficient.

(d) Written notice of the Area Director's decision on the appeal

shall be sent to the applicant by certified mail, to be received by the

addressee only, return receipt requested.

(1) On the basis of the individual's election with regard to

whether he or she wishes to share in the per capita payment, the Area

Director's decision shall also state whether the individual's name will

be included on the per capita payment roll. If no election is made by

the individual applicant, parent, or legal guardian, the individual's

name will not be included on the per capita payment roll.

(2) The eligible individual will have 30 days from notification of

his or her eligibility in which to request a change in the election of

whether to share in the per capita payment. Computation of the 30-day

period will be in accordance with Sec. 67.9(a)(2) and Sec. 67.9(d).

Upon written request received within the 30-day period, to avoid

hardship or gross injustice, the Area Director may grant additional

time, not to exceed 30 days, in which to submit a request for a change

in election.

(3) The change in the election of whether to share in the per

capita payment can only be made by adult applicants, or by the legal

guardian of an incompetent adult, or in the case of minors, by the

parents or legal guardian of such minors.

Sec. 67.12 Exhaustion of administrative remedies.

The decision of the Area Director on appeal, which shall be final

for the Department, is subject to judicial review under 5 U.S.C. 704.

Sec. 67.13 Preparation, certification and approval of the roll.

(a) The Superintendent shall prepare a minimum of three (3) copies

of the roll of those persons determined to be qualified for enrollment

as an Independent Seminole Indian of Florida. The roll shall contain

for each person a roll number or identification number, name, address,

sex, date of birth, date of death (when applicable), and the name and

relationship of the ancestor on the annotated Seminole Agency Census of

1957 through whom eligibility for enrollment was established.

(b) A certificate shall be attached to the roll by the

Superintendent certifying that to the best of his or her knowledge and

belief, the roll contains only the names of those persons who were

determined to meet the qualifications for enrollment.

(c) The Area Director shall approve the roll.

Sec. 67.14 Preparation of a per capita payment roll.

(a) The Superintendent shall, based on the roll approved under

Sec. 67.12(c), prepare a per capita payment roll. The payment roll

shall be comprised of those persons whose names appear on the approved

roll and who have elected to share in the per capita payment.

(b) The per capita payment roll shall contain for each person a

roll number or identification number, name, and address.

(c) The Area Director shall authorize the distribution of the

judgment funds to those persons named on the per capita payment roll.

Sec. 67.15 Special instructions.

To facilitate the work of the Superintendent and Area Director, the

Assistant Secretary may issue special instructions not inconsistent

with the regulations in this part.

Dated: November 19, 1993.

Ada E. Deer,

Assistant Secretary, Indian Affairs.

[FR Doc. 94-1275 Filed 1-19-94; 8:45 am]

BILLING CODE 4310-02-P