regulation

Bureau of Indian Affairs, Interior

§ 23.13

designated agents in the FEDERAL REGISTER. A current listing of such agents
shall be available through the area offices.
§ 23.13 Payment for appointed counsel
in involuntary Indian child custody
proceedings in state courts.
(a) When a state court appoints counsel for an indigent Indian party in an
involuntary Indian child custody proceeding for which the appointment of
counsel is not authorized under state
law, the court shall send written notice
of the appointment to the BIA Area Director designated for that state in
§ 23.11. The notice shall include the following:
(1) Name, address, and telephone
number of attorney who has been appointed.
(2) Name and address of client for
whom counsel is appointed.
(3) Relationship of client to child.
(4) Name of Indian child’s tribe.
(5) Copy of the petition or complaint.
(6) Certification by the court that
state law makes no provision for appointment of counsel in such proceedings.
(7) Certification by the court that the
Indian client is indigent.
(b) The Area Director shall certify
that the client is eligible to have his or
her appointed counsel compensated by
the BIA unless:
(1) The litigation does not involve a
child custody proceeding as defined in
25 U.S.C. 1903 (1);
(2) The child who is the subject of the
litigation is not an Indian child as defined in 25 U.S.C. 1903 (4);
(3) The client is neither the Indian
child who is the subject of the litigation, the Indian child’s parent as defined in 25 U.S.C. 1903 (9), nor the
child’s Indian custodian as defined in 25
U.S.C. 1903 (6);
(4) State law provides for appointment of counsel in such proceedings;
(5) The notice to the Area Director of
appointment of counsel is incomplete;
or
(6) Funds are not available for the
particular fiscal year.
(c) No later than 10 days after receipt
of the notice of appointment of counsel, the Area Director shall notify the
court, the client, and the attorney in

writing whether the client has been
certified as eligible to have his or her
attorney fees and expenses paid by the
BIA. If certification is denied, the notice shall include written reasons for
that decision, together with a statement that complies with 25 CFR 2.7 and
that informs the applicant that the decision may be appealed to the Assistant Secretary. The Assistant Secretary
shall consider appeals under this subsection in accordance with 25 CFR 2.20
(c) through (e). Appeal procedures shall
be as set out in part 2 of this chapter.
(d) When determining attorney fees
and expenses, the court shall:
(1) Determine the amount of payment
due appointed counsel by the same procedures and criteria it uses in determining the fees and expenses to be paid
appointed counsel in state juvenile delinquency proceedings; and
(2) Submit approved vouchers to the
Area Director who certified eligibility
for BIA payment, together with the
court’s certification that the amount
requested is reasonable under the state
standards considering the work actually performed in light of criteria that
apply in determining fees and expenses
for appointed counsel in state juvenile
delinquency proceedings.
(e) The Area Director shall authorize
the payment of attorney fees and expenses in the amount requested in the
voucher approved by the court unless:
(1) The amount of payment due the
state-appointed counsel is inconsistent
with the fees and expenses specified in
§ 23.13 (d)(1); or
(2) The client has not been certified
previously as eligible under paragraph
(c) of this section; or
(3) The voucher is submitted later
than 90 days after completion of the
legal action involving a client certified
as eligible for payment of legal fees
under paragraph (b) of this section.
(f) No later than 15 days after receipt
of a payment voucher, the Area Director shall send written notice to the
court, the client, and the attorney
stating the amount of payment, if any,
that has been authorized. If the payment has been denied, or the amount
authorized is less than the amount requested in the voucher approved by the

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§ 23.21

25 CFR Ch. I (4–1–06 Edition)

court, the notice shall include a written statement of the reasons for the decision together with a statement that
complies with 25 CFR 2.7 and that informs the client that the decision may
be appealed to the Interior Board of Indian Appeals in accordance with 25
CFR 2.4 (e); 43 CFR 4.310 through 4.318
and 43 CFR 4.330 through 4.340.
(g) Failure of the Area Director to
meet the deadline specified in paragraphs (c) and (f) of this section may be
treated as a denial for purposes of appeal under paragraph (f) of this section.
(h) Payment for appointed counsel
does not extend to Indian tribes involved in state court child custody proceedings or to Indian families involved
in Indian child custody proceedings in
tribal courts.

Subpart C—Grants to Indian Tribes
for Title II Indian Child and
Family Service Programs
§ 23.21 Noncompetitive tribal government grants.
(a) Grant application information and
technical assistance. Information on
grant application procedures and related information may be obtained
from the appropriate Agency Superintendent or Area Director. Pre-award
and ongoing technical assistance to
tribal governments shall be provided in
accordance with § 23.42 of this part.
(b) Eligibility requirements for tribal
governments. The tribal government(s)
of any Indian tribe or consortium of
tribes may submit a properly documented application for a grant to the
appropriate Agency Superintendent or
Area Director. A tribe may neither
submit more than one application for a
grant nor be the beneficiary of more
than one grant under this subpart.
(1) Through the publication of a FEDERAL REGISTER announcement at the
outset of the implementation of the
noncompetitive grant award process
during which tribal applications will be
solicited, the Assistant Secretary will
notify eligible tribal applicants under
this subpart of the amount of core
funds available for their ICWA program. The funding levels will be based
on the service area population to be
served. Upon the receipt of this notice
from the Agency Superintendent or ap-

propriate Area Director, tribal applicants shall submit a completed ICWA
application no later than 60 days after
the receipt of this notice.
(2) A grant to be awarded under this
subpart shall be limited to the tribal
governing body(ies) of the tribe(s) to be
served by the grant.
(3) For purposes of eligibility for
newly recognized or restored Indian
tribes without established reservations, such tribes shall be deemed eligible to apply for grants under this subpart to provide ICWA services within
those service areas legislatively identified for such tribes.
(4) A grantee under this subpart may
make a subgrant to another Indian
tribe or an Indian organization subject
to the provisions of § 23.45.
(c) Revision or amendment of grants. A
grantee under this subpart may submit
a written request and justification for
a post-award grant modification covering material changes to the terms
and conditions of the grant, subject to
the approval of the grants officer. The
request shall include a narrative description of any significant additions,
deletions, or changes to the approved
program activities or budget in the
form of a grant amendment proposal.
(d) Continued annual funding of an
ICWA grant under this subpart shall be
contingent upon the fulfillment of the
requirements delineated at § 23.23(c).
(e) Monitoring and program reporting
requirements for grantees under this
subpart are delineated at §§ 23.44 and
23.47.
§ 23.22 Purpose of tribal government
grants.
(a) Grants awarded under this subpart are for the establishment and operation of tribally designed Indian
child and family service programs. The
objective of every Indian child and
family service program shall be to prevent the breakup of Indian families and
to ensure that the permanent removal
of an Indian child from the custody of
his or her Indian parent or Indian custodian shall be a last resort. Such child
and family service programs may include, but need not be limited to:
(1) A system for licensing or otherwise regulating Indian foster and adoptive homes, such as establishing tribal

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