stationed in Alaska, Hawaii, or elsewhere outside the Continental United States, or a person who died after the date of the act, may be filed by the sponsor on or before the specified deadline.1

(b) In the preparation of a roll of Tlingit and Haida Indians of Alaska sponsors may file applications on behalf of minors, mentally incompetent persons, or other persons in need of assistance, members of the Armed Services or other services of the United States or Canadian Governments and/or any members of their immediate families stationed outside the limits of Alaska, or a person who died after the date of the act.1

[31 FR 7744, June 1, 1966]

§ 41.6 Burden of proof.

The burden of proof rests upon the applicant to establish his eligibility for enrollment. Documentary evidence such as birth certificates, death certificates, baptismal records, copies of probate findings, or affidavits, may be used to support claim for enrollment. Records of the Bureau of Indian Affairs may be used to establish eligibility.

§ 41.7 Review of applications by tribal authorities.

Whenever practicable the Secretary shall consult with tribal authorities, who shall have 3 months from the deadline for filing applications to examine the applications for the purpose of recommending to the Director approval or rejection of the applications. A recommendation for the rejection of any application shall be supported by a memorandum setting forth the reasons for the adverse recommendation.

§ 41.8 Action by the Director.

(a) The Director shall consider each application and, when applicable, the tribal recommendation thereon. Upon determination as to the eligibility of an applicant, the Director shall notify the person who filed the application in writing of his decision. If such determination is favorable, the name of the

'Criminal penalties are provided by statute for knowingly filing false information in such statements, 18 U.S.C. 1001.

applicant shall be placed on the roll. If the decision is adverse, the person who filed the application shall be notified of such decision by certified mail, to be received by addressee only, return receipt requested, together with a full explanation of the reasons therefor and of his right of appeal to the Secretary. (If correspondence is sent outside of the States of the United States, it may be necessary to use registered mail.) If an individual files applications on behalf of more than one person, one notice of eligibility or rejection may be addressed to the person who filed the applications. However, said notice must list the name of each person involved.

(b) To avoid hardship or gross injustice, the Director may waive technical deficiencies in applications or other submissions.

[30 FR 7745, June 16, 1965, as amended at 35 FR 14394, Sept. 12, 1970]

§ 41.9 Appeals.

Appeals from rejected applications must be in writing, and filed pursuant to Part 42 of this subchapter.

§ 41.10 Decision of the Secretary on appeals.

The decision of the Secretary on an appeal shall be final and conclusive, and written notice of the decision shall be given the applicant or sponsor. When so directed by the Secretary, the Commissioner shall cause to be entered on the roll the name of any person whose appeal has been sustained.

$ 41.11 Preparation of roll.

The staff officer shall prepare a minimum of five copies of the roll of those persons determined to be eligible for enrollment. The roll shall contain for each person a roll number, name, address, sex, date of birth, and, when required by law, degree of Indian blood, and, in the remarks column, when applicable, the basic roll number, date of the basic roll, name and relationship of ancestor on the basic roll through whom eligibility was established.

As used in this Part 42:

(a) "Secretary" means the Secretary of the Interior, or his authorized representative.

(b) "Commissioner" means the Commissioner of Indian Affairs, or his authorized representative.

(c) "Director" means the Area Director, or his authorized representative, of the Bureau of Indian Affairs office which has administrative jurisdiction over the local office responsible for administering the affairs of the tribe.

(d) "Superintendent” means the official or other authorized representative in charge of the local Bureau of Indian Affairs office having immediate administrative jurisdiction over the affairs of the Indian tribe for which a roll is being prepared.

(e) "Field Office" means the local office of the Bureau of Indian Affairs which has responsibility for administering the affairs of the tribe.

(f) "Tribal Committee" means the body of the tribe vested with authority to pass on enrollment matters.

(g) "Constitution" means the written organizational framework for the governing of the tribe and/or any valid enrollment ordinance or resolution a tribe may adopt.

(h) "Sponsor" means a parent, recognized guardian, next friend, next of kin, spouse, executor or administrator of estate, the Director or other person who files an application for enrollment on behalf of another person.

§ 42.2 Purpose.

The regulations in this Part 42 are for the purpose of establishing the procedure for filing appeals in conjunction with the rejection of any name from a roll of an Indian tribe when final approval thereof rests within the purview of the Secretary either because of provisions in tribal constitutions or specific acts of Congress. The regulations are not to apply in those instances where the procedures for filing appeals by applicants rejected for tribal membership are prescribed in tribal documents.

§ 42.3 Who may appeal.

(a) Any person who has been rejected for enrollment may file or have filed in his behalf an appeal from an adverse enrollment action. The burden of proof of establishing eligibility is on the appellant. Except as provided in paragraph (b) of this section, in the case of minors, mentally incompetent persons or other persons in need of assistance, members of the Armed Services or other services of the U.S. Government and/or any members of their immediate families stationed in Alaska or Hawaii or elsewhere outside the Continental United States, or a person who died after the date of any relevant act, an appeal may be filed by a sponsor. The burden of proof of establishing eligibility is on the appellant.

(b) In the preparation of a roll of Tlingit and Haida Indians of Alaska, the sponsors may file appeals on behalf of minors, mentally incompetent persons or other persons in need of assistance, members of the Armed Services or other services of the

United States or Canadian Governments and/or any members of their immediate families stationed outside the limits of Alaska, or a person who died after the date of the act.

[31 FR 7745, June 1, 1966]

§ 42.4 Filing of an appeal.

The appeal shall be in writing addressed to the Secretary and must be received by the official designated in the letter of rejection before the close of business on the 30th day after receipt of the rejection notice, except in those cases where the letter of rejection is delivered to an address in Alaska or Hawaii or elsewhere outside the Continental United States the addressee will have 60 instead of 30 days to file an appeal with the official designated in the letter of rejection. However, if the roll being prepared is for a tribe, band, or group of Indians in Alaska, in cases where the letter of rejection is delivered to an address in Alaska the addressee will have 30 days in which to appeal the rejection of the application and, where the letter of rejection is delivered to an address outside the limits of Alaska the addressee will have 60 days in which to file an appeal. In computing the 30- or 60-day period, the count begins with the day following receipt of the rejection notice and continues for 30 or 60 consecutive days. If, however, the 30th or 60th day falls on a Saturday, Sunday, or legal holiday, the period would end on the first working day thereafter. [31 FR 7745, June 1, 1966]

§ 42.5 Supporting evidence.

The appeal should include any supporting evidence not previously furnished and may include a copy of or reference to any Bureau or tribal records having a direct bearing on the appellant's eligibility. The appellant may furnish affidavits from persons having personal knowledge of the facts at issue.' An appeal may request additional time to submit supporting evidence. A period considered reasonable for such submissions may be

'Criminal penalties are provided by statute for knowingly filing false information in such statements, 18 U.S.C. 1001.

granted by the official receiving the appeal.

§ 42.6 Advising tribe.

Whenever applicable, the Superintendent or the Director shall notify the tribal committee of the receipt of the appeal and shall give the tribal committee the opportunity to examine the appeal and to present such evidence as it may consider pertinent to the action being appealed. The tribal committee shall have not to exceed 30 days from receipt of notification of the appeal in which to present in writing such statements as it may deem pertinent, supported by any tribal records which have a bearing on the

case.

§ 42.7 Action by the Director.

If after review of the evidence or appeal, the Director is satisfied that the right to enrollment has been established, the appellant shall be so notified in writing and his name entered on the roll. If the Director again determines the appellant is ineligible, he shall so notify the appellant and shall forward the appeal, together with the complete record and his recommendations thereon to the Commissioner for transmittal to the Secretary.

§ 42.8 The decision of the Secretary on appeals.

The Secretary will consider the record as presented, together with such additional information he may consider pertinent. Any such additional information shall be specifically identified in his decision. The decision of the Secretary on an appeal shall be final and conclusive and written notice of the decision shall be given to the appellant.

§ 42.9 Special instructions.

To facilitate the work of the Director, the Commissioner may issue special instructions not inconsistent with the regulations in this Part 42.

As used in these regulations:

(a) "Plan" means the plan for the use and distribution of Creek judgment funds awarded in docket 275 before the Indian Claims Commission, prepared pursuant to the Act of October 19, 1973, and effective June 15, 1978.

(b) "Secretary" means the Secretary of the Interior or his authorized representative.

(c) "Assistant Secretary" means the Assistant Secretary of the Interior for Indian Affairs or his authorized representative.

(d) "Director" means the Area Director, Muskogee Area Office, Bureau of Indian Affairs, or his authorized representative acting under delegated authority.

(e) "Staff officer" means the Enrollment Officer or other person authorized to prepare the roll.

(f) "Living" means born on or prior to and living on the date specified.

(g) "Lineal ancestor" means an ancestor, living or deceased, who is related to the applicant by direct ascent; namely, parent, grandparent, et cetera. It does not include collateral relatives such as brothers, sisters, aunts, uncles, et cetera.

(h) "Descendants" means those persons who are the issue of the ancestor through whom enrollment rights are

claimed, namely the children, grandchildren, et cetera. It does not include collateral relatives such as brothers, sisters, nieces, nephews, cousins, et cetera.

(i) "Sponsor" means a parent, recognized guardian, next friend, next of kin, spouse, executor, or administrator of estate, the Director, or other person who files an application for enrollment on behalf of another person.

(j) "1968 roll" means the roll of persons designated as Eastern Creek who were eligible to share in the distribution of Creek judgment funds in docket 21 prepared under the act of September 21, 1968, 82 Stat. 855. It does not include those Creek descendants who established eligibility through an ancestor who was a member of the Creek Nation of Oklahoma.

(k) "Indian lineage" means descent by blood from an Indian lineal ancestor.

§ 43.2 Purpose.

The regulations in this part are to govern the compilation of a roll of persons who meet the requirements specified in the plan to serve as the basis for distributing the Eastern Creek portion of judgment funds awarded the Creek Nation of Indians in Indian Claims Commission Docket 275.

§ 43.3 Qualifications for enrollment and the deadline for filing.

(a) The roll shall contain the names of persons living on June 15, 1978, who were listed on the 1968 roll as Eastern Creeks and those who file timely applications and establish that:

(1) They are the children of persons whose names appear on the 1968 roll, regardless of whether the enrolled parent is living or deceased.

(2) They were not enrolled on the 1968 roll although they met the requirements for enrollment as Eastern Creeks as specified in section 1 of the act of September 21, 1968, 82 Stat. 855, i.e.,

(i) They were living on September 21, 1968.

(ii) Their names or the names of lineal ancestors appear on any of the documents listed below or on any

available census rolls or other records acceptable to the Secretary, which identify the person as a Creek Indian, including ancient documents for records of the United States located in the National Archives, State, or county records in the archives of the several States or counties therein, or in the courthouses thereof, and other records that would be admissible as evidence in an action to determine Indian lineage.

(A) Claims of Friendly Creek Indians paid under the act of March 3, 1817 (H.R. Doc. 200, 20:1, 1828);

(B) Census of the Creek Nation, 1833, made pursuant to article 2 of the treaty concluded March 24, 1832 (Senate Doc. 512, 1835, Emigration Correspondence, 1831-33, pp. 239-395);

(C) Land Location Registers of Creek Indian Lands, made pursuant to the treaty of March 25, 1832;

(D) Any emigration or muster rolls of Creek Indians;

(E) Any lists of self-emigrant Creek claimants (including those contained in Senate Ex. Doc. 198, 50:1, 1888, and H.R. Ex. Doc. 238; 51:2, 1891).

(3) They are children of persons who qualify for enrollment under paragraph (a)(2) of this section.

(b) Applications must be filed with the Area Director, Bureau of Indian Affairs, Federal Building, Muskogee, Okla. 74401, and must be received in his office no later than the close of business on November 15, 1979. Applications received after that date will be rejected for failure to file on time, regardless of whether the applicant otherwise meets the requirements for enrollment. If the filing deadline falls on a Saturday, Sunday, or legal holiday or other nonbusiness day, the deadline will be the next working day thereafter.

§ 43.4 Application and information forms. (a) Persons entitled to enrollment under paragraph (a)(1) of § 43.3 (1968 enrollees) do not need to reapply for enrollment. They must, however, complete an information form advising the Director of any changes in name and/ or address. The Director shall mail an information form to each person on the 1968 roll using the last address of record. Changes in information on the

roll will be made only if information form is signed by an adult 1968 enrollee, if living, or the parent or guardian having legal custody of a minor 1968 enrollee. The information form may also be used to notify the Director of the date of death of a deceased 1968 enrollee.

(b) Applications to be filed by applicants for enrollment will be furnished by the Director, 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 applications are given, as well as the control numbers of the forms and the date furnished. Instructions for completing and filing applications shall be furnished with each form. The form shall indicate prominently the deadline for filing applications.

(c) Among other information, each application shall contain:

(1) Certification as to whether application is for a natural child or an adopted child of the parent through whom eligibility is claimed.

(2) If the application is filed by a sponsor, the name and address of sponsor and relationship to applicant.

(3) A control number for the purpose of keeping a record of applications furnished interested individuals.

§ 43.5 Filing of applications and information forms.

(a) Any person, except a 1968 enrollee, who desires to be enrolled and believes he meets the requirements for enrollment specified in the plan and the regulations in this part must file or have filed for him a completed application form with the Director or other designated person on or before the deadline specified in § 43.3.

(b) Written application forms for minors, mentally incompetent persons or other persons in need of assistance, for members of the Armed Services or other services of the U.S. Government and/or members of their families stationed in Alaska, Hawaii, or elsewhere outside the continental United States, or for a person who died after June 15,