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Code of Federal Regulations

Above from left: Providing Water for Cattle on the Navajo Nation (USDA 2017); Caring for Horses on the Navajo Nation (Horses for Life 2017); Scrutiny on Navajo border towns (Indian Country Today 2013); The Navajo Nation has money from Biden’s infrastructure bill. So why don’t families have power? (Salt Lake Tribune 2022).

Introduction to the Code of Federal Regulations

The Code of Federal Regulations (CFR) is a collection of regulations adopted by Federal agencies that must conform to public laws passed by Congress. Public laws passed by Congress frequently establish or refer to the implementing federal department or agency, and delegate to them rule-making authority to to implement some mission or policy expressed in that public law. The regulations issued by the federal departments or agencies are then codified in the CFR. The regulations in the CFR are considered legally binding just as any statute.

The CFR is divided into 50 titles that represent broad areas subject to Federal regulation. The CFR is updated daily online by the Office of the Federal Register. Every workday, the Federal Register not only issues permanent rules and regulations, but also proposed rules, presidential proclamations, and Executive Orders. 

Subject to strict internal controls, regulations may be amended or waived by the federal Executive Branch without action by Congress.

U.S. Electronic C.F.R. Reading Aid

INDEX TO ALL 50 TITLES OF THE C.F.R. 

The Code of Federal Regulations (C.F.R.) is arranged in 50 broad Titles or subject areas, which are further broken down as follows: 

Titles –>  Chapters –> Subchapters –> Parts –> Subparts –> Sections

Citations to the C.F.R. always begin with the number of the Title.  Implementing agencies are grouped by Chapter. The regulations and functions of each of these agencies are then further grouped into Subchapters, Parts, and Subparts. Specific regulatory provisions are called “sections,” and use the “§” symbol. E.g. “25 CFR § 167.1” is a regulatory provision under Title 25 (Indians). Below is the INDEX to all 50 Titles of the full CFR.

INDEX to Title 25 CFR (Indians)

Chapter I-Bureau of Indian Affairs, Department of the Interior

Chapter II-Indian Arts and Crafts Board, Department of the Interior

Chapter III-National Indian Gaming Commission, Department of the Interior

Chapter IV-The Office of Navajo and Hopi Indian Relocation

Chapter V-Bureau of Indian Affairs, Department of the Interior, and Indian Health Service, Department of Health and Human Services

Chapter VI-Office of the Assistant Secretary, Indian Affairs, Department of the Interior

Chapter VII-Office of the Special Trustee for American Indians, Department of the Interior

INDEX to Bureau of Indian Affairs – Trust Management

The Bureau of Indian Affairs (BIA)) is the primary federal agency implementing the federal trust responsibility to American Indian and Alaska Native people. In the C.F.R., the BIA is located at Chapter 1. Its trust functions and procedures are set forth at Subchapters A-N. It is important to note that the BIA is merely one of multiple management programs within the Department of the Interior, none of which have “governmental” capability as local communities might believe.

Subchapter A-Procedures and Practice

Subchapter B-Law and Order

Subchapter C-Probate

Subchapter D-Human Services

Subchapter E-Education

Subchapter F-Tribal Government

Subchapter G-Financial Activities

Subchapter H-Land and Water

Subchapter I-Energy and Minerals

Subchapter J-Fish and Wildlife

Subchapter K-Housing

Subchapter L-Heritage Preservation

Subchapter M-Indian Self-Determination and Education Assistance Act Program

Subchapter N-Economic Enterpris

Surface Land, Leases and Water Processes

Subchapter H of the BIA’s trust responsibility functions and processes is, perhaps, the most critical grouping of regulations for Navajo Nation community land users. Pertaining to land and water, this subchapter details the BIA’s evolved processes in managing restricted Indian land, including tribal trust land and allotment land. It is important to note that the processes are management, rather than governing processes. Among the many regulations within Subchapter H are regulations for leases and permits, which are at Part 162. Part 162 was comprehensively revised in 2013 to provide greater self-determination. The revisions are viewed as the most comprehensive reform of federal regulations governing Indian land surface leasing since 1961, and also added subparts for wind and solar. In 2012, the Navajo Nation had developed lease and permit regulations under tribal law mirroring Part 162 as it existed at that time in order to obtain federal approval to self-manage its leases. The Navajo Nation’s version of leasing regulations may now contain needless restrictions. 

Below are some important groupings of regulations under Title 25, Chapter 1, Subchapter H, including important subparts on leases and permits.

Using Land Without Leases & Permits

* The portion below is being developed. Thank you for your patience. *

Exceptions to surface lease and permit requirements, and other types of land use agreements covered by other regulations pursuant to other statutes, are outlined below:

  • 25 CFR 162.006(b)-Land agreements expressly excepted from Part 162. 
  • Part 84 – Agreements that encumber tribal land under 25 U.S.C. § 81 (which requires that the BIA must give approval for any tribal contract that “encumbers” tribal land for 7 years or more unless excepted by the DOI. There is little agreement as to what an encumbrance of Indian land means)
  • Part 140 – Traders licenses
  • Part 141 – Business licensing and practices on the Navajo, Hopi and Zuni Reservations
  • Part 161 – Grazing permits, Navajo Nation partitioned lands only *
  • Part 163 – Timber contracts
  • Part 167 – Grazing permits, Navajo Nation *
  • Part 168 – Grazing permits, Hopi Partitioned Lands *
  • Part 169 – Rights-of-way
  • Subchapter I (Parts 200-227) – Mineral leases, prospecting permits or mineral development agreements
  • Tribal land assignments and similar instruments authorizing uses of tribal land which are covered by tribal laws. While this provides the greatest potential for tribal envisioning ingenuity, this method of holding land has never been used by the Navajo Nation.
  • Leases of water rights incorporated in a land lease
  • Leases of terms up to 25 years made by a 25 USC § 477 corporate entity to a 3rd party
  • Leases under a special act of Congress authorizing leases without BIA approval

* Parts 161, 167 and 168 create land management districts, set livestock carrying capacities, require records, describe grazing rights and permits including permit tenures, restrict construction near livestock water, and otherwise provide for the control of livestock movement and disease. Part 161 and 167 address Navajo Nation grazing. Part 168 specifically allows Navajos residing on Hopi Partitioned Lands to obtain interim grazing permits.

6. Waiver of Regulations

The American Indian Agricultural Resources Management Act (AIARMA) (1993) at Title 25 Chapter 39 of the United States Code, and the National Indian Forest Resource Management Act (NIFRMA) at Title 25 Chapter 33 of the United States Code provide for regulatory waivers upon a tribe establishing a DOI-approved IRMP. Both the AIARMA and NIFRMA strongly acknowledge tribal self-determination.

Since federal laws do not include any tribal cultural land use practices, the possibility of regulatory waivers is critical for implementing IRMPs that encompass traditional land practices. For a summary of the AIARMA, go to AIARMA-BIA summary; see also 25 CFR 166.311.