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Law and Order on Indian Reservations
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: September 24, 2002 (Volume 67, Number 185)]
[Rules and Regulations]
[Page 59781-59783]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24se02-8]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 11
RIN 1076-AE19
Law and Order on Indian Reservations
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Final rule and request for comments.
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SUMMARY: The Bureau of Indian Affairs (BIA) is amending its regulations
to add the Paiute-Shoshone Indian Tribe of the Fallon Reservation and
Colony (Western Region, Nevada) to the listing of Courts of Indian
Offenses. This amendment will set up a Court of Indian Offenses with
jurisdiction over the Paiute-Shoshone Indian Tribe of the Fallon
Reservation and Colony to protect lives and property.
DATES: Effective Date: This rule is effective on September 30, 2002.
Comment Date: Comments must be received on or before November 25,
2002.
ADDRESSES: Send comments on this rule to Ralph Gonzales, Office of
Tribal Services, Bureau of Indian Affairs, 1849 C Street NW, MS 4660,
Washington, DC 20240.
FOR FURTHER INFORMATION CONTACT: Sharlot Johnson, Tribal Government
Officer, Western Regional Office, Bureau of Indian Affairs, 400 N.
Fifth Street, Phoenix, Arizona 85004, (602) 379-6786; or Ralph
Gonzales, Branch of Judicial Services, Office of Tribal Services,
Bureau of Indian Affairs, 1849 C Street NW., MS 4660 Washington, DC
20240, (202) 208-4401.
SUPPLEMENTARY INFORMATION: The authority to issue this rule is vested
in the Secretary of the Interior by 5 U.S.C. 301 and 25 U.S.C. 2 and 9;
and 25 U.S.C. 13, which authorizes appropriations for ``Indian
judges.'' See Tillett v. Hodel, 730 F. Supp. 381 (W.D. Okla. 1990),
aff'd, 931 F.2d 636 (10th Cir. 1991) United States v. Clapox, 13 Sawy.
349, 35 F. 575 (D. Ore. 1888). This rule is published in exercise of
the rulemaking authority delegated by the Secretary of the Interior to
the Assistant Secretary--Indian Affairs.
On September 18, 2001, the Bureau of Indian Affairs published a
temporary final rule (66 FR 48085) amending its regulations contained
in 25 CFR part 11 to add the Paiute-Shoshone Indian Tribe of the Fallon
Reservation and Colony (Western Region, Nevada) to the list of Courts
of Indian Offenses. This amendment established a Court of Indian
Offenses for a period not to exceed one year. The purpose of
establishing a Court of Indian Offenses at the Fallon Reservation and
Colony was to protect persons, land, lives and property of people
residing there, until the tribe reassumed its Law and Order program.
The tribe has not established a tribal court to exercise jurisdiction
at Fallon Reservation and Colony consistent with 25 CFR 11.100(c).
Therefore a Court of Indian Offenses is established for an indefinite
period at Fallon Reservation and Colony until such time as the tribe
establishes a tribal court. The jurisdiction of the Court of Indian
Offenses will remain the same as published in the Federal Register on
September 18, 2001 at 66 FR 48085.
BIA's action provided a 60-day public comment period ending
November 19, 2001. During the comment period, BIA received 86 form
letters. Commenters stated that they accept the BIA's emergency
amendment establishing a CFR Court at Fallon. In addition, the
commenters indicated that we should eliminate the tribal court. The
tribal government created the tribal court as an exercise of its
inherent sovereignty. Therefore, we cannot eliminate the tribal court
in response to the comments. We can only establish a CFR Court when it
is necessary to protect lives and property where a tribal court has not
been established or a tribal court fails to perform this function. This
amendment permanently establishes a CFR Court until such time as the
tribal government establishes a tribal court consistent with the
regulations contained in part 11.100(c).
Determination To Publish a Final Rule Effective Immediately
In accordance with the requirements of the Administrative Procedure
Act (5 U.S.C. 553(B)), we have determined that publishing a proposed
rule would be impractical because of the risk to public safety as well
as further risk of exposure of the Federal Government to a lawsuit for
failure to execute diligently its trust responsibility and to provide
adequate judicial services for law enforcement on trust land. The
Bureau of Indian Affairs Law Enforcement Services has reassumed the Law
Enforcement Program from the Paiute-Shoshone Indian Tribe of the Fallon
Reservation and Colony, and a CFR Court is a necessary judicial forum
within the reservation for the adjudication of criminal cases. For
these reasons, an immediate effective date is in the public interest
and in the interest of the tribe not to delay implementation of this
amendment. We are therefore publishing this change as a final rule with
request for comments.
BIA has determined it appropriate to make the rule effective
immediately by waiving the U.S.C. 553(d) requirement of publication 30
days in advance of the effective date. This is because of the critical
need to expedite establishment of this court to fill the void in law
enforcement at the Fallon Reservation and Colony. Therefore, this final
rule is effective immediately.
We invite comments on any aspect of this rule and we will revise
the rule if comments warrant. Send comments on this rule to the address
in the ADDRESSES section.
Regulatory Planning and Review (Executive Order 12866)
In accordance with the criteria in Executive Order 12866, this rule
is not a significant regulatory action. OMB makes the final
determination under Executive Order 12866.
(a) This rule will not have an annual economic effect of $100
million or adversely affect an economic sector, productivity, jobs, the
environment, or other units of government. A cost-benefit and economic
analysis is not required. The establishment of this Court of Indian
Offenses is estimated to cost less than $200,000 annually to operate.
The cost associated with the operation of this court will be with the
Bureau of Indian Affairs.
(b) This rule will not create inconsistencies with other agencies'
actions. The Department of the Interior, through the Bureau of Indian
Affairs, has the sole responsibility and authority to establish Courts
of Indian Offenses on Indian reservations.
(c) This rule will not materially affect entitlements, grants, user
fees, loan programs, or the rights and obligations of their recipients.
The establishment of this Court of Indian Offenses will not affect any
program rights of the Paiute-Shoshone Indian Tribe of the Fallon
Reservation and Colony. Its primary function will be to administer
justice for misdemeanor offenses within the tribe's reservation and
colony. The court's jurisdiction will be exercised as provided in 25
CFR part 11.
(d) This rule will not raise novel legal or policy issues. The
Solicitor analyzed and upheld the Department of the Interior's
authority to establish Courts of Indian Offenses in a memorandum dated
February 28, 1935. The Solicitor found that authority to rest
principally in the statutes placing supervision of the Indians in the
Secretary of the Interior, 25 U.S.C. 2 and 9, and 25 U.S.C. 13, which
authorizes appropriations for ``Indian judges.'' The United States
[[Page 59782]]
Supreme Court recognized the authority of the Secretary to promulgate
regulations with respect to Courts of Indian Offenses in United States
v. Clapox, 35 F. 575 (D. Ore. 1888).
Regulatory Flexibility Act
The Department of the Interior, BIA, certifies that this rule will
not have a significant economic effect on a substantial number of small
entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601
et seq.). An initial Regulatory Flexibility Analysis is not required.
Accordingly, a Small Entity Compliance Guide is not required. The
amendment to 25 CFR 11.100(a) will establish a Court of Indian Offenses
with limited criminal jurisdiction over Indians within a limited
geographical area at Fallon, Nevada. Accordingly, there will be no
impact on any small entities.
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule:
(a) Does not have an annual effect on the economy of $100 million
or more. The establishment of this Court of Indian Offenses is
estimated to cost less than $200,000 annually to operate. The cost
associated with the operation of this court will be with the Bureau of
Indian Affairs.
(b) Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions. This is a court established
specifically for the administration of misdemeanor justice for Indians
located within the boundaries of the Paiute-Shoshone Indian Tribe of
the Fallon Reservation and Colony and will not have any cost or price
impact on any other entities in the geographical region.
(c) Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
United States-based enterprises to compete with foreign-based
enterprises. This is a court established specifically for the
administration of misdemeanor justice for Indians located within the
boundaries of the Paiute-Shoshone Indian Tribe of the Fallon
Reservation and Colony, Fallon, Nevada, and will not have an adverse
impact on competition, investment, productivity, innovation, or the
ability of United States-based enterprises to compete with foreign-
based enterprises.
Unfunded Mandates Reform Act
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.):
(a) This rule will not ``significantly or uniquely'' affect small
governments. A Small Government Agency Plan is not required. The
establishment of this Court of Indian Offenses will not have
jurisdiction to affect any rights of the small governments. Its primary
function will be to administer justice for misdemeanor offenses within
the Fallon Indian Reservation and Colony. Its jurisdiction will be
limited to criminal offenses provided in 25 CFR part 11.
(b) This rule will not produce a Federal mandate of $100 million or
greater in any year; i.e., it is not a ``significant regulatory
action'' under the Unfunded Mandates Reform Act.
Takings Implication Assessment (Executive Order 12630)
In accordance with Executive Order 12630, this rule does not have
significant takings implications. A takings implication assessment is
not required. The amendment to 25 CFR 11.100(a) will establish a Court
of Indian Offenses with limited criminal jurisdiction over Indians
within a limited geographical area at Fallon, Nevada. Accordingly,
there will be no jurisdictional basis for the CFR Court to affect
adversely any property interest because the court's jurisdiction is
limited to personal jurisdiction over Indians.
Federalism (Executive Order 13132)
In accordance with Executive Order 13132, this rule does not have
significant Federalism effects. A Federalism assessment is not
required. This rule concerns only courts established for tribes by the
Federal Government at the tribe's request and does not infringe on
states' judicial systems. If the tribe chooses, they can establish
their own judicial system apart from any State or local government in
accordance with 25 CFR 11.100(c).
Civil Justice Reform (Executive Order 12988)
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that this rule does not unduly burden the
judicial system and meets the requirements of sections 3(a) and 3(b)(2)
of the Order. The Solicitor analyzed and upheld the Department of the
Interior's authority to establish Courts of Indian Offenses in a
memorandum dated February 28, 1935. The Solicitor found that authority
to rest principally in the statutes placing supervision of the Indians
in the Secretary of the Interior, 25 U.S.C. 2 and 9; and 25 U.S.C. 13,
which authorizes appropriations for ``Indian judges.'' The United
States Supreme Court recognized the authority of the Secretary to
promulgate regulations with respect to Courts of Indian Offenses in
United States v. Clapox, 35 F. 575 (D. Ore. 1888). Part 11 also
requires the establishment of an appeals court; hence, the judicial
system defined in Executive Order 12988 does not involve this judicial
process.
Paperwork Reduction Act
This regulation does not require an information collection under
the Paperwork Reduction Act. The information collection is not covered
by an existing OMB approval. An OMB form 83-I has not been prepared and
has not been approved by the Office of Policy Analysis. No information
is being collected as a result of this court exercising its limited
criminal misdemeanor jurisdiction over Indians within the exterior
boundaries of the Paiute-Shoshone Indian Tribe of the Fallon
Reservation and Colony.
National Environmental Policy Act
We have analyzed this rule in accordance with the criteria of the
National Environmental Policy Act and 516 DM. This rule does not
constitute a major Federal action significantly affecting the quality
of the human environment. An environmental impact statement/assessment
is not required. The establishment of this Court of Indian Offenses
conveys personal jurisdiction over the criminal misdemeanor actions of
Indians within the exterior boundaries of the Paiute-Shoshone Indian
Tribe of the Fallon Reservation and Colony and does not have any impact
on the environment.
Consultation and Coordination with Indian Tribal Governments (Executive
Order 13175)
Pursuant to Executive Order 13175 of November 6, 2000,
``Consultation and Coordination with Indian Tribal Governments,'' we
have evaluated potential effects on federally recognized Indian tribes
and have determined that there are no potential effects. The amendment
to 25 CFR 11.100(a) does not apply to any of the 562 federally
recognized tribes, except the Paiute-Shoshone Indian Tribe of the
Fallon Reservation and Colony. The tribe agreed to the establishment of
the provisional Court of Indian Offenses until the Secretary determines
that enforcement of the criminal offenses contained in part 11 of the
Code of Federal Regulations is no longer
[[Page 59783]]
justified. The Department of the Interior, in establishing this
provisional court, is fulfilling its trust responsibility and complying
with the unique government-to-government relationship that exists
between the Federal Government and Indian tribes.
List of Subjects in 25 CFR Part 11
Courts, Indians--law, Law enforcement, Penalties.
For the reasons stated in the preamble, we are amending part 11,
chapter I of title 25 of the Code of Federal Regulations, as set forth
below.
PART 11--LAW AND ORDER ON INDIAN RESERVATIONS
1. The authority citation for part 11 continues to read as follows:
Authority: 5 U.S.C. 301; R.S. 463, 25 U.S.C. 2; R.S. 465, 25
U.S.C. 9; 42 Stat. 208, 25 U.S.C. 13; 38 Stat. 586, 25 U.S.C. 200.
2. Section 11.100 is amended by adding new paragraph (a)(15) to
read as follows:
Sec. 11.100 Listing of Courts of Indian Offenses.
(a) * * *
(15) Paiute-Shoshone Indian Tribe of the Fallon Reservation and
Colony (land in trust for the Paiute-Shoshone Indian Tribe of the
Fallon Reservation and Colony).
* * * * *
Dated: September 13, 2002.
Neal A. McCaleb,
Assistant Secretary--Indian Affairs.
[FR Doc. 02-24241 Filed 9-23-02; 8:45 am]
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