Preparation of Rolls of Indians

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.

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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

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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

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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.

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[FR Doc. 99-10208 Filed 4-22-99; 8:45 am]

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