25 C.F.R. Subpart O—Trust Evaluation Review
Title 25 - Indians
This subpart describes how the trust responsibility of the United States is legally maintained through a system of trust evaluations when Tribes/Consortia perform trust functions through AFAs under the Tribal Self-Governance Act of 1994. It describes the principles and processes upon which trust evaluations will be based. No, the Act does, however, permit a Tribe/Consortium to assume management responsibilities for trust assets and resources on its own behalf and on behalf of individual Indians. Under the Act, the Secretary has a trust responsibility to conduct annual trust evaluations of Tribal performance of trust functions to ensure that Tribal and individual trust assets and resources are managed in accordance with the legal principles and standards governing the performance of trust functions if trust assets or resources are found to be in imminent jeopardy. (a) Trust resources include property and interests in property: (1) That are held in trust by the United States for the benefit of a Tribe or individual Indians; or (2) That are subject to restrictions upon alienation. (b) Trust assets include: (1) Other assets, trust revenue, royalties, or rental, including natural resources, land, water, minerals, funds, property, assets, or claims, and any intangible right or interest in any of the foregoing; (2) Any other property, asset, or interest therein, or treaty right for which the United States is charged with a trust responsibility. For example, water rights and off-reservation treaty rights. (c) This definition defines trust resources for purposes of the trust evaluation process only. Trust functions are those programs necessary to the management of assets held in trust by the United States for an Indian Tribe or individual Indian. A trust evaluation is an annual review and evaluation of trust functions performed by a Tribe/Consortium to ensure that the functions are performed in accordance with trust standards as defined by Federal law. Trust evaluations address trust functions performed by the Tribe/Consortium on its own behalf as well as trust functions performed by the Tribe/Consortium for the benefit of individual Indians or Alaska Natives. (a) Each year the Secretary's designated representative(s) will conduct trust evaluations for each self-governance AFA. The Secretary's designated representative(s) will coordinate with the designated Tribe's/Consortium's representative(s) throughout the review process, including the written report required by §1000.365. (b) This section describes the general framework for trust reviews. However, each Tribe/Consortium may develop, with the appropriate bureau, an individualized trust evaluation process to allow for the Tribe's/Consortium's unique history and circumstances and the terms and conditions of its AFA. An individualized trust evaluation process must, at a minimum, contain the measures in paragraph (d) of this section. (c) To facilitate the review process so as to mitigate costs and maximize efficiency, each Tribe/Consortium must provide access to all records, plans, and other pertinent documents relevant to the program(s) under review not otherwise available to the Department. (d) The Secretary's designated representative(s) will: (1) Review trust transactions; (2) Conduct on-site inspections of trust resources, as appropriate; (3) Review compliance with applicable statutory and regulatory requirements; (4) Review compliance with the trust provisions of the AFA; (5) Ensure that the same level of trust services is provided to individual Indians as would have been provided by the Secretary; (6) Document deficiencies in the performance of trust functions discovered during the review process; and (7) Ensure the fulfillment of the Secretary's trust responsibility to Tribes and individual Indians by documenting the existence of: (i) Systems of internal controls; (ii) Trust standards; and (iii) Safeguards against conflicts of interest in the performance of trust functions. (e) At the request of a Tribe/Consortium, at the time the AFA is negotiated, the standards will be negotiated, except where standards are otherwise provided for by law. Yes, if the parties agree. Yes, unless standards are otherwise provided by Federal treaties, statutes, case law or regulations not waived, the Secretary's designated representative will negotiate standards of review at the request of the Tribe/Consortium. If the parties agree and it is practical, the Secretary may determine the status of the trust resource at the time of the transfer of the function or at a later time. The Secretary's representative(s) must prepare a written report documenting the results of the trust evaluation. (a) Upon Tribal/Consortium request, the representative(s) will provide the Tribal/Consortium representative(s) with a copy of the report for review and comment before finalization. (b) The representative(s) will attach to the report any Tribal/Consortium comments that the representative does not accept. No, Tribes/Consortia are under the same obligation as the Secretary to perform trust functions and related activities in accordance with trust protection standards and principles whether managing Tribally or individually owned trust assets. The process for conducting annual trust evaluations of Tribal performance of trust functions on behalf of individual Indians is the same as that used in evaluating performance of Tribal trust functions. Yes, if the annual evaluation reveals that deficient performance of a trust function is due to the action or inaction of a bureau, the evaluation report will note the deficiency and the appropriate Department official will be notified of the need for corrective action. The review of the Secretary's trust functions shall be based on the standards in this subpart, other applicable law, and other Federal law. (a) A finding of imminent jeopardy triggers the Federal reassumption process (see subpart M of this part), unless the conditions in paragraph (b) of this section are met. (b) The reassumption process will not be triggered if the Secretary's designated representative determines that the Tribe/Consortium: (1) Can cure the conditions causing jeopardy within 60 days; and (2) Will not cause significant loss, harm, or devaluation of a trust asset, natural resources, or the public health and safety. Where problems not rising to the level of imminent jeopardy are caused by Tribal action or inaction, the conditions must be: (a) Documented in the annual trust evaluation report; (b) Reported to the Secretary; and (c) Reported in writing to: (1) The governing body of the Tribe; and (2) In the case of a Consortium, to the governing body of each Tribe on whose behalf the Consortium is performing the trust functions. The Tribe/Consortium is primarily responsible for identifying and implementing corrective actions for matters contained in the AFA, but the Department may also suggest possible corrective measures for Tribal consideration. A report summarizing the results of the trust evaluation will be prepared and copies provided to the Tribe/Consortium. The report must: (a) Be written objectively, concisely, and clearly; and (b) Present information accurately and fairly, including only relevant and adequately supported information, findings, and conclusions. Trust evaluations are normally conducted annually. When the Department receives information of a threat of imminent jeopardy to a trust asset, natural resource, or the public health and safety, the Secretary, as trustee, may conduct a preliminary investigation. If the preliminary investigation shows that appropriate, sufficient data are present to indicate there may be imminent jeopardy, the Secretary's designated representative: (a) Will notify the Tribe/Consortium in writing; and (b) May conduct an on-site inspection upon 2 days' advance written notice to the Tribe/Consortium. This depends on the terms contained in the AFA.
Title 25: Indians
PART 1000—ANNUAL FUNDING AGREEMENTS UNDER THE TRIBAL SELF-GOVERNMENT ACT AMENDMENTS TO THE INDIAN SELF-DETERMINATION AND EDUCATION ACT
Subpart O—Trust Evaluation Review
§ 1000.350 What is the purpose of this subpart?
§ 1000.351 Does the Tribal Self-Governance Act of 1994 alter the trust responsibility of the United States to Indian Tribes and individuals under self-governance?
§ 1000.352 What are “trust resources” for the purposes of the trust evaluation process?
§ 1000.353 What are “trust functions” for the purposes of the trust evaluation process?
Annual Trust Evaluations
§ 1000.354 What is a trust evaluation?
§ 1000.355 How are trust evaluations conducted?
§ 1000.356 May the trust evaluation process be used for additional reviews?
§ 1000.357 May the parties negotiate standards of review for purposes of the trust evaluation?
§ 1000.358 Can an initial review of the status of the trust asset be conducted?
§ 1000.359 What are the responsibilities of the Secretary's designated representative(s) after the annual trust evaluation?
§ 1000.360 Is the trust evaluation standard or process different when the trust asset is held in trust for an individual Indian or Indian allottee?
§ 1000.361 Will the annual review include a review of the Secretary's residual trust functions?
§ 1000.362 What are the consequences of a finding of imminent jeopardy in the annual trust evaluation?
§ 1000.363 What if the trust evaluation reveals problems that do not rise to the level of imminent jeopardy?
§ 1000.364 Who is responsible for corrective action?
§ 1000.365 What are the requirements of the review team report?
§ 1000.366 Can the Department conduct more than one trust evaluation per Tribe per year?
§ 1000.367 Will the Department evaluate a Tribe's/Consortium's performance of non-trust related programs?
