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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: March 29, 2005 (Volume 70, Number 59)]
[Rules and Regulations]
[Page 15759-15761]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29mr05-7]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 11
RIN 1076-AE52
Law and Order on Indian Reservations
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Final rule and request for comments.
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SUMMARY: This document adds the Winnemucca Indian Tribe (Western
Region, Nevada) to the listing of Courts of Indian Offenses. This
amendment will establish a Court of Indian Offenses for a period not to
exceed 2 years. It is necessary to establish a Court of Indian Offenses
with jurisdiction over the Winnemucca Indian Tribe of the Winnemucca
Reservation and Colony in order to protect lives and property.
DATES: This rule is effective on March 29, 2005. Comments must be
received on or before May 31, 2005. Section 11.100(a)(15) expires March
29, 2007.
ADDRESSES: You may submit comments, identified by the number 1076-AE52,
by any of the following methods:
? Federal rulemaking portal: http://www.regulations.gov 
Follow the instructions for submitting comments.
? Fax: (202) 208-5113.
? Mail: Ralph Gonzales, Office of Tribal Services, Bureau of
Indian Affairs, 1951 Constitution Avenue, NW., MS 320-SIB, Washington,
DC 20240.
? Hand delivery: Office of Tribal Services, Bureau of Indian
Affairs, 1951 Constitution Avenue, NW., MS 320-SIB, Washington, DC 20240.
FOR FURTHER INFORMATION CONTACT: Sharlot Johnson, Tribal Operations
Officer, Western Regional Office, Bureau of Indian Affairs, 400 N.
Fifth Street, Phoenix, Arizona 85004, (602) 379-6786; or Ralph
Gonzales, Office of Tribal Services, Bureau of Indian Affairs, 1951
Constitution Avenue, NW., MS 320-SIB, Washington, DC 20240, (202) 513-7629.
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 the exercise
of the rulemaking authority delegated by the Secretary of the Interior
to the Assistant Secretary--Indian Affairs in the Departmental Manual
at 209 DM 8.1.
The territorial jurisdiction is extended to the land described in
this document. The tract of land located in Nevada, within which the
Winnemucca Indian Tribe is located, and more particularly described as:
(1) That 160 acres set aside by Executive Order of June 18, 1917,
described as the NE\1/4\ of Section 32, Township 36 N., Range 38 E.,
M.D.M.;
(2) That 160 acres withdrawn by Executive Order of February 8,
1918, described as the SE\1/4\ of Section 32, Township 36 N., Range 38
E., M.D.M.; and
(3) That 20 acres acquired by the Acts of May 21, 1928 (45 Stat.
618) and May 29, 1928 (45 Stat 899) and described as N\1/2\, NE\1/4\,
Section 29, Township 36 N., Range 38 E., M.D.M.
In addition, the territorial jurisdiction is extended to any lands
hereafter acquired by or for the Colony. A provisional Court of Indian
Offenses must be established for the Winnemucca Indian Tribe to protect
the lives, persons, and property of people residing at and attending or
visiting the Winnemucca Reservation and Colony, until they establish a
tribal court in accordance with 25 CFR 11.100(c). This court shall
function for a period not to exceed 2 years.
Judges of the Court of Indian Offenses shall be authorized to
exercise all authority provided under 25 CFR part 11, including:
Subpart D--Criminal Offenses; Subpart H--Appellate Proceedings; Subpart
J--Juvenile Offender Procedure; issuance of arrest and search warrants
pursuant to 25 CFR 11.302 and 11.305 and the Indian Law Enforcement
Reform Act, 25 U.S.C. 2803(2) (1998). Officials of the Bureau of Indian
Affairs have already set up a provisional Court of Indian Offenses
pursuant to 25 CFR 11.100(a) for the Western Region to address this law
enforcement need. This rule merely affirms the legitimacy of the
establishment of this court.
This final rule will not authorize judges to exercise the following
authority under 25 CFR part 11: Subpart E--Civil Actions; Subpart F--
Domestic Relations; Subpart G--Probate Proceedings; Subpart I--
Children's Court; and Subpart K--Minor-in-Need-of-Care Procedure.
Determination To Publish a Direct Final Rule Effective Immediately
The Bureau of Indian Affairs has determined that the public notice
and comment provisions of the Administrative Procedure Act, 5 U.S.C.
553(b), do not apply because of the good cause exception under 5 U.S.C.
553(b)(3)(B), which allows the agency to suspend the notice and public
procedure when the agency finds for good cause that those requirements
are impractical, unnecessary and contrary to the public interest. This
amendment will establish a provisional Court of Indian Offenses for the
Winnemucca Indian Tribe of Winnemucca, Nevada, on land that was placed
in trust for the benefit of the Winnemucca Indian Tribe. If this
provisional court is not established, there is a high potential risk to
public safety and a further risk of significant financial liability to
the Federal Government from a lawsuit for failure to execute diligently
its trust responsibility and provide adequate law enforcement on trust
land. Delaying this rule to solicit public comment through the proposed
rulemaking process would thus be contrary to the public interest. The
Bureau of Indian Affairs Law Enforcement Services provides Law
Enforcement Services to the Winnemucca Indian Tribe and an increase in
visitors to the Winnemucca Reservation and Colony is imminent. For
these reasons, an immediate effective date is in the public interest
and in the interest of the Winnemucca Tribe. Accordingly, this
amendment is issued as a final rule 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.
[[Page 15760]]
(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 and the Winnemucca Tribe.
(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 Winnemucca Indian Tribe. Its primary function
will be to administer justice for misdemeanor offenses within the
Winnemucca Reservation and Colony grounds. The court's jurisdiction
will be limited to criminal offense provided in 25 CFR part 11 and the
Law and Order Code of the Winnemucca Tribe.
(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
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 Bureau of Indian Affairs 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 part 11.100(a) will establish a Court of Indian
Offenses with limited criminal jurisdiction over Indians within a
limited geographical area at Winnemucca, 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 and the Winnemucca Tribe.
(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 Winnemucca Indian 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
U.S. 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
Winnemucca Indian Reservation and Colony, Winnemucca, Nevada, and will
not have an adverse impact on competition, investment, productivity,
innovation, or the ability of U.S.-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 Winnemucca Indian Reservation and Colony grounds. Its jurisdiction
will be limited to criminal offense provided in 25 CFR part 11 and the
Law and Order Code of the Winnemucca Tribe.
(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, the 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 Winnemucca, Nevada. Accordingly,
there will be no jurisdictional basis to adversely affect any property
interest because the court's jurisdiction is solely personal
jurisdiction over Indians.
Federalism (Executive Order 13132)
In accordance with Executive Order 13132, the rule does not have
significant federalism effects. A federalism assessment is not
required. 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).
Civil Justice Reform (Executive Order 12988)
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that the 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 will not normally be involved
in 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
[[Page 15761]]
an existing OMB approval. An OMB form 83-I have not been prepared and
have 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 Winnemucca Indian 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 Winnemucca Indian
Reservation and Colony and does not have any impact of the environment.
Consultation and Coordination With Indian Tribal Governments (Executive
Order 13175)
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), Executive Order 13175, and 512 DM 2, we
have evaluated potential effects on federally recognized Indian tribes
and have determined that there are no potential effects. The amendment
to 25 CFR part 11.100(a) does not apply to any of the 564 federally
recognized tribes, except the Winnemucca Indian Tribe. The provisional
Court of Indian Offenses will exist until the tribe establishes a
tribal court to provide for a law and order and a judicial system to
deal with law and order on the trust land at the Winnemucca Indian
Reservation and Colony, but is expected not to exceed 2 years. 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 set out in the preamble, part 11 of title 25 of the
Code of the Federal Regulations is amended 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: R.S. 463; 25 U.S.C. 2, 38 Stat. 586; 25 U.S.C. 200,
unless otherwise noted.
? 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) Winnemucca Indian Tribe (land in trust for the Winnemucca
Indian Tribe of Nevada).
* * * * *
Dated: November 23, 2004.
David W. Anderson,
Assistant Secretary--Indian Affairs.
[FR Doc. 05-6113 Filed 3-28-05; 8:45 am]