[Code of Federal Regulations]
[Title 25, Volume 1]
[Revised as of April 1, 2001]
From the U.S. Government Printing Office via GPO Access
[CITE: 25CFR89.41]

[Page 282]
 
                            TITLE 25--INDIANS
 
     CHAPTER I--BUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR
 
PART 89--ATTORNEY CONTRACTS WITH INDIAN TRIBES--Table of Contents
 
Sec. 89.41  Exceptions to policy.

    The Assistant Secretary--Indian Affairs upon concurrence of the 
Solicitor and receipt of a recommendation as provided by Sec. 89.43 may, 
in his/her discretion, authorize the direct or indirect expenditure of 
appropriated funds to pay reasonable attorney's fees in order to permit 
an Indian tribe to secure private legal representation in the following 
circumstances:
    (a) When a tribe determines it necessary to bring a court action or 
to defend itself to protect its trust resources, rights claimed under a 
treaty, agreement, executive order, or statute, or its governmental 
powers and the Attorney General refuses assistance or advises that 
assistance is not otherwise available (Comptroller General's Opinion B-
114868, December 6, 1976).
    (b) When a tribe determines it necessary to institute or to defend 
itself in an administrative proceeding to protect its trust resources, 
rights claimed under a treaty, agreement, executive order, or statute, 
or to protect its governmental powers and the Solicitor is unable to 
provide representation due to a conflict of interest or other reasons.
    (c) When a tribe determines legal assistance necessary, other than 
for litigation, pursuant to a contract executed under Pub. L. 93-638 and 
the Solicitor has determined that the services of his office are not 
available.
    (d) When a tribe determines it critical, and the Assistant 
Secretary--Indian Affairs finds the concerns of the tribe to have merit 
after consultation with and the advice of the Solicitor, to intervene, 
in a lawsuit being handled by the Justice Department or in an 
administrative proceeding being handled by the Solicitor because the 
responsible Government Attorney refuses either to exclude or to include 
some facet of the suit or proceedings which the tribe claims renders 
such legal representation completely inadequate to protect or in 
contravention of the rights and interests of the tribe. Prior to 
consulting with and advising the Assistant Secretary--Indian Affairs, in 
a lawsuit being handled by the Justice Department, the Solicitor shall 
seek the comments and advice of the Attorney General.
    (e) When a tribe determines, and the Assistant Secretary--Indian 
Affairs, after consultation with the Solicitor concurs, that a 
substantial possibility of a negotiated settlement or agreement exists.
    (f) Payment of fees will not be allowed if such payment was not 
authorized before services were performed.
    (g) This rule applies to expenditure of appropriated Federal funds 
and not a tribe's own funds on deposit in the U.S. Treasury.