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89 FR 100245, Dec. 11, 2024, unless otherwise noted.
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Subscribe to: 25 CFR Part 1000 Subpart R - Pre-Award Disputes
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Decisions that a Tribe/Consortium may appeal include, but are not limited to:
(a) A decision to reject a final offer, or a portion thereof, under 25 U.S.C. 5366(c);
(b) A decision to reject a proposed amendment to a compact or funding agreement, or a portion thereof, under 25 U.S.C. 5366(c);
(c) A decision that provisions in a retained funding agreement and/or compact are directly contrary to any express provision of the Act;
(d) A decision to reassume a compact or funding agreement, in whole or in part, under 25 U.S.C. 5366(b), except for immediate reassumptions under 25 U.S.C. 5366(b)(3);
(e) A decision to reject a final construction project proposal, or a portion thereof, under 25 U.S.C. 5367(g) and subpart K of this part; and
(f) For construction project agreements carried out under 25 U.S.C. 5367, a decision to reject project planning documents, design documents, or proposed amendments submitted by a Tribe/Consortium under 25 U.S.C. 5367(h)(1) and subpart K of this part.
Decisions that may not appealed under §§ 1000.2345 through 1000.2395 shall be limited to:
(a) Disputes arising under the terms of a compact, funding agreement, or construction project agreement that has been awarded;
(b) Disputes arising from immediate reassumptions under 25 U.S.C. 5366(b)(3) and § 1000.1750 which are covered under §§ 1000.2405 through 1000.2430;
(c) Decisions relating to planning and negotiation grants (subparts C and D of this part) and certain discretionary grants not awarded under title IV (25 CFR part 2);
(d) Decisions regarding requests for waivers of regulations (subpart J of this part);
(e) Decisions regarding construction (subpart K of this part) addressed in § 1000.1455; and
(f) Decisions under any other statute, such as the Freedom of Information Act and the Privacy Act (see 43 CFR part 2).
(a) Filing an appeal. A Tribe/Consortium may elect to file a dispute under § 1000.2345 with either the bureau head/Assistant Secretary or IBIA in accordance with this subpart. However, the Tribe/Consortium may not avail itself to both paths for the same dispute.
(b) Bureau head/Assistant Secretary appeal. Unless the initial decision being appealed is one that was made by the bureau head (those appeals are forwarded to the appropriate Assistant Secretary—see § 1000.2360(c), of this subpart), the bureau head will decide initial appeals relating to these pre-award matters, that include but are not limited to disputes regarding:
(1) Eligibility to participate in self-governance;
(2) Decisions declining to provide requested information as addressed in subpart H;
(3) Allocations of program funds when a dispute arises between a Consortium and a withdrawing Tribe; and
(4) Inherently Federal functions and associated funding.
(c) IBIA. The Tribe/Consortium may choose to forego the administrative appeal through the bureau or the Assistant Secretary, as described in paragraph (b) of this section, and instead appeal directly to IBIA.
Every decision in any of the areas listed in § 1000.2345 must contain information which shall tell the Tribe/Consortium where and when to file the Tribe's/Consortium's appeal. Each decision shall include the following statement:
Within 30 days of the receipt of this decision, you may request non-binding informal alternative dispute resolution, such as an informal conference under § 1000.2320, or file an appeal of the initial decision of the Department in accordance with subpart R of this part. Alternatively, you may file an action in Federal court pursuant to 25 U.S.C. 5331.
(a) Table 1 to this paragraph (a) indicates the appropriate bureau head, for purposes of subpart R, to whom a Tribe/Consortium may file its initial request for appeal when exercising its appeal rights to the bureau head/Assistant Secretary under § 1000.2351 for any BIA program:
| Bureau whose initial decision is being
appealed |
Appropriate bureau head |
|---|---|
| BIA | Director, BIA. |
| BIE | Director, BIE. |
| BTFA | Director, BTFA. |
| The Office of the Assistant Secretary—Indian Affairs or OSG | The Assistant Secretary for Indian Affairs. |
(b) The appropriate Assistant Secretary for any BIA Program, for purposes of § 1000.2370, shall be the Assistant Secretary for Indian Affairs.
(c) If a Tribe/Consortium elects to exercise its appeal rights to the bureau head/Assistant Secretary under § 1000.2351 for any non-BIA Programs then:
(1) The appropriate bureau head, for purposes of this subpart R, shall be the director of the appropriate bureau which issued the initial adverse decision, including the commissioner of the Bureau of Reclamation.
(2) The appropriate Assistant Secretary, for purposes of this subpart R, shall be the Assistant Secretary who oversees the appropriate non-BIA bureau which issued the initial adverse decision.