[Title 25 CFR ]
[Code of Federal Regulations (annual edition) - April 1, 2021 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
Title 25
Indians
________________________
Parts 1 to 299
Revised as of April 1, 2021
Containing a codification of documents of general
applicability and future effect
As of April 1, 2021
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
[[Page ii]]
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[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 25:
Chapter I--Bureau of Indian Affairs, Department of
the Interior 3
Finding Aids:
Table of CFR Titles and Chapters........................ 969
Alphabetical List of Agencies Appearing in the CFR...... 989
List of CFR Sections Affected........................... 999
[[Page iv]]
----------------------------
Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 25 CFR 1.2 refers to
title 25, part 1, section
2.
----------------------------
[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
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HOW TO USE THE CODE OF FEDERAL REGULATIONS
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To determine whether a Code volume has been amended since its
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EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
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OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
amendments to existing regulations in the CFR. These OMB numbers are
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PAST PROVISIONS OF THE CODE
Provisions of the Code that are no longer in force and effect as of
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for 1949-1963, 1964-1972, 1973-1985, and 1986-2000.
``[RESERVED]'' TERMINOLOGY
The term ``[Reserved]'' is used as a place holder within the Code of
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INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
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This material, like any other properly issued regulation, has the force
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What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on which
approval is based are:
(a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed as
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CFR INDEXES AND TABULAR GUIDES
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An index to the text of ``Title 3--The President'' is carried within
that volume.
[[Page vii]]
The Federal Register Index is issued monthly in cumulative form.
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the revision dates of the 50 CFR titles.
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Oliver A. Potts,
Director,
Office of the Federal Register
April 1, 2021
[[Page ix]]
THIS TITLE
Title 25--Indians is composed of two volumes. The parts in these
volumes are arranged in the following order: Parts 1--299, and part 300
to end. The contents of these volumes represent all current regulations
codified under this title of the CFR as of April 1, 2021.
For this volume, Stephen J. Frattini was Chief Editor. The Code of
Federal Regulations publication program is under the direction of John
Hyrum Martinez.
[[Page 1]]
TITLE 25--INDIANS
(This book contains parts 1 to 299)
--------------------------------------------------------------------
Part
chapter i--Bureau of Indian Affairs, Department of the
Interior.................................................. 1
[[Page 3]]
CHAPTER I--BUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR
--------------------------------------------------------------------
SUBCHAPTER A--PROCEDURES AND PRACTICE
Part Page
1 Applicability of rules of the Bureau of
Indian Affairs.......................... 9
2 Appeals from administrative actions......... 10
5 Preference in employment.................... 16
SUBCHAPTER B--LAW AND ORDER
10 Indian country detention facilities and
programs................................ 17
11 Courts of Indian offenses and law and order
code.................................... 19
12 Indian country law enforcement.............. 58
13 Tribal reassumption of jurisdiction over
child custody proceedings............... 63
SUBCHAPTER C--PROBATE
15 Probate of Indian estates, except for
members of the Osage Nation and the Five
Civilized Tribes........................ 67
16 Estates of Indians of the Five Civilized
Tribes.................................. 76
17 Action on wills of Osage Indians............ 79
18 Tribal probate codes........................ 81
SUBCHAPTER D--HUMAN SERVICES
20 Financial assistance and social services
programs................................ 86
23 Indian Child Welfare Act.................... 107
26 Job placement and training program.......... 142
SUBCHAPTER E--EDUCATION
30 Standards, assessments, and accountability
system.................................. 149
31 Federal schools for Indians................. 166
32 Indian education policies................... 167
33 Transfer of Indian education functions...... 172
36 Minimum academic standards for the basic
education of Indian children and
national criteria for dormitory
situations.............................. 174
37 Geographic boundaries....................... 194
[[Page 4]]
38 Education personnel......................... 196
39 The Indian school equalization program...... 210
40 Administration of educational loans, grants
and other assistance for higher
education............................... 235
41 Grants to tribal colleges and universities
and Din[eacute] College................. 236
42 Student rights.............................. 244
43 Maintenance and control of student records
in Bureau schools....................... 247
44 Grants under the Tribally Controlled Schools
Act..................................... 253
46 Adult Education Program..................... 255
47 Uniform direct funding and support for
Bureau-operated schools................. 257
SUBCHAPTER F--TRIBAL GOVERNMENT
61 Preparation of rolls of Indians............. 260
62 Enrollment appeals.......................... 271
63 Indian child protection and family violence
prevention.............................. 274
67 Preparation of a roll of independent
Seminole Indians of Florida............. 283
75 Revision of the membership roll of the
Eastern Band of Cherokee Indians, North
Carolina................................ 287
81 Secretarial election procedures............. 292
82 [Reserved]
83 Procedures for Federal acknowledgment of
Indian tribes........................... 307
84 Encumbrances of tribal land--Contract
approvals............................... 321
87 Use or distribution of Indian judgment funds 323
88 Recognition of attorneys and agents to
represent claimants..................... 328
89 Attorney contracts with Indian tribes....... 329
90 Election of officers of the Osage Tribe..... 331
91 Government of Indian villages, Osage
Reservation, Oklahoma................... 337
SUBCHAPTER G--FINANCIAL ACTIVITIES
101 Loans to Indians from the Revolving Loan
Fund.................................... 343
103 Loan guaranty, insurance, and interest
subsidy................................. 354
111 Annuity and other per capita payments....... 371
114
Special deposits [Reserved]
115 Trust funds for tribes and individual
Indians................................. 372
117 Deposit and expenditure of individual funds
of members of the Osage Tribe of Indians
who do not have certificates of
competency.............................. 397
122 Management of Osage judgment funds for
education............................... 405
[[Page 5]]
124 Deposits of proceeds from lands withdrawn
for Native selection.................... 407
134 Partial payment construction charges on
Indian irrigation projects.............. 408
135 Construction assessments, Crow Indian
irrigation project...................... 410
136 Fort Hall Indian irrigation project, Idaho.. 412
137 Reimbursement of construction costs, San
Carlos Indian irrigation project,
Arizona................................. 412
138 Reimbursement of construction costs, Ahtanum
Unit, Wapato Indian irrigation project,
Washington.............................. 414
139 Reimbursement of construction costs, Wapato-
Satus Unit, Wapato Indian irrigation
project, Washington..................... 415
140 Licensed Indian traders..................... 416
141 Business practices on the Navajo, Hopi and
Zuni Reservations....................... 421
142 Alaska Resupply Operation................... 435
143 Charges for goods and services provided to
non-Federal users....................... 438
SUBCHAPTER H--LAND AND WATER
150 Land records and title documents............ 441
151 Land acquisitions........................... 444
152 Issuance of patents in fee, certificates of
competency, removal of restrictions, and
sale of certain Indian lands............ 449
153 Determination of competency: Crow Indians... 458
158 Osage lands................................. 459
159 Sale of irrigable lands, special water
contract requirements................... 460
160 Inclusion of liens in all patents and
instruments executed.................... 461
161 Navajo partitioned lands grazing permits.... 462
162 Leases and permits.......................... 477
163 General forestry regulations................ 572
166 Grazing permits............................. 598
167 Navajo grazing regulations.................. 631
168 Grazing regulations for the Hopi Partitioned
Lands area.............................. 635
169 Rights-of-way over Indian lands............. 641
170 Tribal Transportation Program............... 668
171 Irrigation operation and maintenance........ 717
172 Pueblo Indian lands benefited by irrigation
and drainage works of Middle Rio Grande
Conservancy District, New Mexico........ 727
[[Page 6]]
173 Concessions, permits and leases on lands
withdrawn or acquired in connection with
Indian irrigation projects.............. 728
175 Electric power utilities.................... 731
179 Life estates and future interests........... 736
181 Indian Highway Safety Program............... 738
183 Use and distribution of the San Carlos
Apache Tribe Development Trust Fund and
San Carlos Apache Tribe Lease Fund...... 740
SUBCHAPTER I--ENERGY AND MINERALS
200 Terms and conditions: Coal leases........... 744
211 Leasing of tribal lands for mineral
development............................. 744
212 Leasing of allotted lands for mineral
development............................. 759
213 Leasing of restricted lands of members of
Five Civilized Tribes, Oklahoma, for
mining.................................. 767
214 Leasing of Osage Reservation lands,
Oklahoma, for mining, except oil and gas 780
215 Lead and zinc mining operations and leases,
Quapaw Agency........................... 786
216 Surface exploration, mining, and reclamation
of lands................................ 794
217 Management of tribal assets of Ute Indian
Tribe, Uintah and Ouray Reservation,
Utah, by the tribe and the Ute
Distribution Corp....................... 800
224 Tribal energy resource agreements under the
Indian Tribal Energy Development and
Self Determination Act.................. 801
225 Oil and gas, geothermal, and solid minerals
agreements.............................. 829
226 Leasing of Osage Reservation lands for oil
and gas mining.......................... 839
227 Leasing of certain lands in Wind River
Indian Reservation, Wyoming, for oil and
gas mining.............................. 855
SUBCHAPTER J--FISH AND WILDLIFE
241 Indian fishing in Alaska.................... 863
242 Commercial fishing on Red Lake Indian
Reservation............................. 866
243 Reindeer in Alaska.......................... 867
247 Use of Columbia River Treaty fishing access
sites................................... 870
248 Use of Columbia River Indian in-lieu fishing
sites................................... 874
[[Page 7]]
249 Off-reservation treaty fishing.............. 876
SUBCHAPTER K--HOUSING
256 Housing Improvement Program (HIP)........... 880
SUBCHAPTER L--HERITAGE PRESERVATION
262 Protection of archaeological resources...... 889
265 Establishment of roadless and wild areas on
Indian reservations..................... 894
SUBCHAPTER M--INDIAN SELF-DETERMINATION AND EDUCATION ASSISTANCE ACT
PROGRAM
273 Education contracts under Johnson-O'Malley
Act..................................... 895
275 Staffing.................................... 914
276 Uniform administrative requirements for
grants.................................. 915
SUBCHAPTER N--ECONOMIC ENTERPRISES
286 Indian Business Development Program......... 939
290 Tribal revenue allocation plans............. 944
291 Class III gaming procedures................. 948
292 Gaming on trust lands acquired after October
17, 1988................................ 952
293 Class III tribal state gaming compact
process................................. 960
294-299 [Reserved]
SUBCHAPTER O--MISCELLANEOUS [RESERVED]
Appendix to Chapter I--Extension of the Trust or Restricted
Status of Certain Indian Lands............................ 963
[[Page 9]]
SUBCHAPTER A_PROCEDURES AND PRACTICE
PART 1_APPLICABILITY OF RULES OF THE BUREAU OF INDIAN AFFAIRS--
Table of Contents
Sec.
1.1 [Reserved]
1.2 Applicability of regulations and reserved authority of the Secretary
of the Interior.
1.3 Scope.
1.4 State and local regulation of the use of Indian property.
1.10 Availability of forms.
Authority: 5 U.S.C. 301; R.S. 463, 25 U.S.C. 2.
Sec.1.1 [Reserved]
Sec.1.2 Applicability of regulations and reserved authority of the
Secretary of the Interior.
The regulations in chapter I of title 25 of the Code of Federal
Regulations are of general application. Notwithstanding any limitations
contained in the regulations of this chapter, the Secretary retains the
power to waive or make exceptions to his regulations as found in chapter
I of title 25 CFR in all cases where permitted by law and the Secretary
finds that such waiver or exception is in the best interest of the
Indians.
[25 FR 3124, Apr. 12, 1960]
Sec.1.3 Scope.
Chapters I and II of this title contain the bulk of the regulations
of the Department of the Interior of general application relating to
Indian affairs. Subtitle B, chapter I, title 43 of the Code or Federal
Regulations contains rules relating to the relationship of Indians to
public lands and townsites. Subtitle A of title 43 CFR has application
to certain aspects of Indian affairs and, among other things, contains
procedural rules for appellate and other administrative review and for
practice before the Department of the Interior, of which the Bureau of
Indian Affairs is a part. Indian health matters are covered in 42 CFR
part 36. Title 30 CFR contains regulations on oil and gas and other
mining operations, which, under certain circumstances, may be applicable
to Indian resources.
[25 FR 3124, Apr. 12, 1960, as amended at 40 FR 20625, May 12, 1975; 48
FR 13414, Mar. 31, 1983]
Sec.1.4 State and local regulation of the use of Indian property.
(a) Except as provided in paragraph (b) of this section, none of the
laws, ordinances, codes, resolutions, rules or other regulations of any
State or political subdivision thereof limiting, zoning or otherwise
governing, regulating, or controlling the use or development of any real
or personal property, including water rights, shall be applicable to any
such property leased from or held or used under agreement with and
belonging to any Indian or Indian tribe, band, or community that is held
in trust by the United States or is subject to a restriction against
alienation imposed by the United States.
(b) The Secretary of the Interior or his authorized representative
may in specific cases or in specific geographic areas adopt or make
applicable to Indian lands all or any part of such laws, ordinances,
codes, resolutions, rules or other regulations referred to in paragraph
(a) of this section as he shall determine to be in the best interest of
the Indian owner or owners in achieving the highest and best use of such
property. In determining whether, or to what extent, such laws,
ordinances, codes, resolutions, rules or other regulations shall be
adopted or made applicable, the Secretary or his authorized
representative may consult with the Indian owner or owners and may
consider the use of, and restrictions or limitations on the use of,
other property in the vicinity, and such other factors as he shall deem
appropriate.
[30 FR 7520, June 9, 1965]
Sec.1.10 Availability of forms.
Forms upon which applications and related documents may be filed and
upon which rights and privileges may be granted may be inspected and
procured at the Bureau of Indian Affairs, Washington, DC, and at the
office of
[[Page 10]]
any Area Director or Agency Superintendent.
[25 FR 3124, Apr. 12, 1960]
PART 2_APPEALS FROM ADMINISTRATIVE ACTIONS--Table of Contents
Sec.
2.1 Information collection.
2.2 Definitions.
2.3 Applicability.
2.4 Officials who may decide appeals.
2.5 Appeal bond.
2.6 Finality of decisions.
2.7 Notice of administrative decision or action.
2.8 Appeal from inaction of official.
2.9 Notice of an appeal.
2.10 Statement of reasons.
2.11 Answer of interested party.
2.12 Service of appeal documents.
2.13 Filing documents.
2.14 Record address.
2.15 Computation of time.
2.16 Extensions of time.
2.17 Summary dismissal.
2.18 Consolidation of appeals.
2.19 Action by Area Directors and Education Programs officials on
appeal.
2.20 Action by the Assistant Secretary--Indian Affairs on appeal.
2.21 Scope of review.
Authority: R.S. 463, 465; 5 U.S.C. 301, 25 U.S.C. 2, 9.
Source: 54 FR 6480, Feb. 10, 1989, unless otherwise noted.
Sec.2.1 Information collection.
In accordance with Office of Management and Budget regulations in 5
CFR 1320.3(c), approval of information collections contained in this
regulation is not required.
Sec.2.2 Definitions.
Appeal means a written request for review of an action or the
inaction of an official of the Bureau of Indian Affairs that is claimed
to adversely affect the interested party making the request.
Appellant means any interested party who files an appeal under this
part.
Interested party means any person whose interests could be adversely
affected by a decision in an appeal.
Legal holiday means a Federal holiday as designated by the President
or the Congress of the United States.
Notice of appeal means the written document sent to the official
designated in this part, indicating that a decision is being appealed
(see Sec.2.9).
Person includes any Indian or non-Indian individual, corporation,
tribe or other organization.
Statement of reasons means a written document submitted by the
appellant explaining why the decision being appealed is in error (see
Sec.2.10).
[54 FR 6480, Feb. 10, 1989; 54 FR 7666, Feb. 22, 1989]
Sec.2.3 Applicability.
(a) Except as provided in paragraph (b) of this section, this part
applies to all appeals from decisions made by officials of the Bureau of
Indian Affairs by persons who may be adversely affected by such
decisions.
(b) This part does not apply if any other regulation or Federal
statute provides a different administrative appeal procedure applicable
to a specific type of decision.
Sec.2.4 Officials who may decide appeals.
The following officials may decide appeals:
(a) An Area Director, if the subject of appeal is a decision by a
person under the authority of that Area Director.
(b) An Area Education Programs Administrator, Agency Superintendent
for Education, President of a Post-Secondary School, or the Deputy to
the Assistant Secretary--Indian Affairs/Director (Indian Education
Programs), if the appeal is from a decision by an Office of Indian
Education Programs (OIEP) official under his/her jurisdiction.
(c) The Assistant Secretary--Indian Affairs pursuant to the
provisions of Sec.2.20 of this part.
(d) A Deputy to the Assistant Secretary--Indian Affairs pursuant to
the provisions of Sec.2.20(c) of this part.
(e) The Interior Board of Indian Appeals, pursuant to the provisions
of 43 CFR part 4, subpart D, if the appeal is from a decision made by an
Area Director or a Deputy to the Assistant Secretary--Indian Affairs
other than the Deputy to the Assistant Secretary--Indian Affairs/
Director (Indian Education Programs).
[[Page 11]]
Sec.2.5 Appeal bond.
(a) If a person believes that he/she may suffer a measurable and
substantial financial loss as a direct result of the delay caused by an
appeal, that person may request that the official before whom the appeal
is pending require the posting of a reasonable bond by the appellant
adequate to protect against that financial loss.
(b) A person requesting that a bond be posted bears the burden of
proving the likelihood that he/she may suffer a measurable and
substantial financial loss as a direct result of the delay caused by the
appeal.
(c) In those cases in which the official before whom an appeal is
pending determines that a bond is necessary to protect the financial
interests of an Indian or Indian tribe, that official may require the
posting of a bond on his/her own initiative.
(d) Where the official before whom an appeal is pending requires a
bond to be posted or denies a request that a bond be posted, he/she
shall give notice of his/her decision pursuant to Sec.2.7.
Sec.2.6 Finality of decisions.
(a) No decision, which at the time of its rendition is subject to
appeal to a superior authority in the Department, shall be considered
final so as to constitute Departmental action subject to judicial review
under 5 U.S.C. 704, unless when an appeal is filed, the official to whom
the appeal is made determines that public safety, protection of trust
resources, or other public exigency requires that the decision be made
effective immediately.
(b) Decisions made by officials of the Bureau of Indian Affairs
shall be effective when the time for filing a notice of appeal has
expired and no notice of appeal has been filed.
(c) Decisions made by the Assistant Secretary--Indian Affairs shall
be final for the Department and effective immediately unless the
Assistant Secretary--Indian Affairs provides otherwise in the decision.
[54 FR 6480, Feb. 10, 1989; 54 FR 7666, Feb. 22, 1989]
Sec.2.7 Notice of administrative decision or action.
(a) The official making a decision shall give all interested parties
known to the decisionmaker written notice of the decision by personal
delivery or mail.
(b) Failure to give such notice shall not affect the validity of the
decision or action but the time to file a notice of appeal regarding
such a decision shall not begin to run until notice has been given in
accordance with paragraph (c) of this section.
(c) All written decisions, except decisions which are final for the
Department pursuant to Sec.2.6(c), shall include a statement that the
decision may be appealed pursuant to this part, identify the official to
whom it may be appealed and indicate the appeal procedures, including
the 30-day time limit for filing a notice of appeal.
[54 FR 6480, Feb. 10, 1989; 54 FR 7666, Feb. 22, 1989]
Sec.2.8 Appeal from inaction of official.
(a) A person or persons whose interests are adversely affected, or
whose ability to protect such interests is impeded by the failure of an
official to act on a request to the official, can make the official's
inaction the subject of appeal, as follows:
(1) Request in writing that the official take the action originally
asked of him/her;
(2) Describe the interest adversely affected by the official's
inaction, including a description of the loss, impairment or impediment
of such interest caused by the official's inaction;
(3) State that, unless the official involved either takes action on
the merits of the written request within 10 days of receipt of such
request by the official, or establishes a date by which action will be
taken, an appeal shall be filed in accordance with this part.
(b) The official receiving a request as specified in paragraph (a)
of this section must either make a decision on the merits of the initial
request within 10 days from receipt of the request for a decision or
establish a reasonable later date by which the decision shall be made,
not to exceed 60 days from the
[[Page 12]]
date of request. If an official establishes a date by which a requested
decision shall be made, this date shall be the date by which failure to
make a decision shall be appealable under this part. If the official,
within the 10-day period specified in paragraph (a) of this section,
neither makes a decision on the merits of the initial request nor
establishes a later date by which a decision shall be made, the
official's inaction shall be appealable to the next official in the
process established in this part.
[54 FR 6480, Feb. 10, 1989; 54 FR 7666, Feb. 22, 1989]
Sec.2.9 Notice of an appeal.
(a) An appellant must file a written notice of appeal in the office
of the official whose decision is being appealed. The appellant must
also send a copy of the notice of appeal to the official who will decide
the appeal and to all known interested parties. The notice of appeal
must be filed in the office of the official whose decision is being
appealed within 30 days of receipt by the appellant of the notice of
administrative action described in Sec.2.7. A notice of appeal that is
filed by mail is considered filed on the date that it is postmarked. The
burden of proof of timely filing is on the appellant. No extension of
time shall be granted for filing a notice of appeal. Notices of appeal
not filed in the specified time shall not be considered, and the
decision involved shall be considered final for the Department and
effective in accordance with Sec.2.6(b).
(b) When the appellant is an Indian or Indian tribe not represented
by counsel, the official who issued the decision appealed shall, upon
request of the appellant, render such assistance as is appropriate in
the preparation of the appeal.
(c) The notice of appeal shall:
(1) Include name, address, and phone number of appellant.
(2) Be clearly labeled or titled with the words ``NOTICE OF
APPEAL.''
(3) Have on the face of any envelope in which the notice is mailed
or delivered, in addition to the address, the clearly visible words
``NOTICE OF APPEAL.''
(4) Contain a statement of the decision being appealed that is
sufficient to permit identification of the decision.
(5) If possible, attach either a copy of the notice of the
administrative decision received under Sec.2.7, or when an official
has failed to make a decision or take any action, attach a copy of the
appellant's request for a decision or action under Sec.2.8 with a
written statement that the official failed to make a decision or take
any action or to establish a date by which a decision would be made upon
the request.
(6) Certify that copies of the notice of appeal have been served on
interested parties, as prescribed in Sec.2.12(a).
Sec.2.10 Statement of reasons.
(a) A statement of reasons shall be filed by the appellant in every
appeal, and shall be accompanied by or otherwise incorporate all
supporting documents.
(b) The statement of reasons may be included in or filed with the
notice of appeal.
(c) If the statement of reasons is not filed with the notice of
appeal, the appellant shall file a separate statement of reasons in the
office of the official whose decision is being appealed within 30 days
after the notice of appeal was filed in that office.
(d) The statement of reasons whether filed with the notice of appeal
or filed separately should:
(1) Be clearly labeled ``STATEMENT OF REASONS''.
(2) Have on the face of any envelope in which the statement of
reasons is mailed or delivered, in addition to the address, the clearly
visible words ``STATEMENT OF REASONS''.
[54 FR 6480, Feb. 10, 1989; 54 FR 7666, Feb. 22, 1989]
Sec.2.11 Answer of interested party.
(a) Any interested party wishing to participate in an appeal
proceeding should file a written answer responding to the appellant's
notice of appeal and statement of reasons. An answer should describe the
party's interest.
(b) An answer shall state the party's position or response to the
appeal in any manner the party deems appropriate and may be accompanied
by or
[[Page 13]]
otherwise incorporate supporting documents.
(c) An answer must be filed within 30 days after receipt of the
statement of reasons by the person filing an answer.
(d) An answer and any supporting documents shall be filed in the
office of the official before whom the appeal is pending as specified in
Sec.2.13.
(e) An answer should:
(1) Be clearly labelled or titled with the words ``ANSWER OF
INTERESTED PARTY.''
(2) Have on the face of any envelope in which the answer is mailed
or delivered, in addition to the address, the clearly visible words
``ANSWER OF INTERESTED PARTY,'' and
(3) Contain a statement of the decision being appealed that is
sufficient to permit identification of the decision.
Sec.2.12 Service of appeal documents.
(a) Persons filing documents in an appeal must serve copies of those
documents on all other interested parties known to the person making the
filing. A person serving a document either by mail or personal delivery
must, at the time of filing the document, also file a written statement
certifying service on each interested party, showing the document
involved, the name and address of the party served, and the date of
service.
(b) If an appeal is filed with the Interior Board of Indian Appeals,
a copy of the notice of appeal shall also be sent to the Assistant
Secretary--Indian Affairs. The notice of appeal sent to the Interior
Board of Indian Appeals shall certify that a copy has been sent to the
Assistant Secretary--Indian Affairs.
(c) If the appellant is an Indian or Indian tribe not represented by
counsel, the official with whom the appeal is filed (i.e., official
making the decision being appealed) shall, in the manner prescribed in
this section, personally or by mail serve a copy of all appeal documents
on the official who will decide the appeal and on each interested party
known to the official making such service.
(d) Service of any document under this part shall be by personal
delivery or by mail to the record address as specified in Sec.2.14.
Service on a tribe shall be to the principal or designated tribal
official or to the governing body.
(e) In all cases where a party is represented by an attorney in an
appeal, service of any document on the attorney is service on the party
represented. Where a party is represented by more than one attorney,
service on any one attorney is sufficient. The certificate of service on
an attorney shall include the name of the party whom the attorney
represents and indicate that service was made on the attorney
representing that party.
(f) When an official deciding an appeal determines that there has
not been service of a document affecting a person's interest, the
official shall either serve the document on the person or direct the
appropriate legal counsel to serve the document on the person and allow
the person an opportunity to respond.
[54 FR 6480, Feb. 10, 1989; 54 FR 7666, Feb. 22, 1989]
Sec.2.13 Filing documents.
(a) An appeal document is properly filed with an official of the
Bureau of Indian Affairs:
(1) By personal delivery during regular business hours to the person
designated to receive mail in the immediate office of the official, or
(2) By mail to the facility officially designated for receipt of
mail addressed to the official; the document is considered filed by mail
on the date that it is postmarked.
(b) Bureau of Indian Affairs offices receiving a misdirected appeal
document shall forward the document to the proper office promptly. If a
person delivers an appeal document to the wrong office or mails an
appeal document to an incorrect address, no extension of time should be
allowed because of the time necessary for a Bureau office to redirect
the document to the correct address.
(c) Notwithstanding any other provision of this section, an official
deciding an appeal shall allow late filing of a misdirected document,
including a notice of appeal, where the official finds that the
misdirection is the fault of the government.
[[Page 14]]
Sec.2.14 Record address.
(a) Every interested party who files a document in connection with
an appeal shall, when he/she files the document, also indicate his/her
address. Thereafter, any change of address shall be promptly reported to
the official with whom the previous address was filed. The most current
address on file under this subsection shall be deemed the proper address
for all purposes under this part.
(b) The successors in interest of a party shall also promptly inform
the official specified in paragraph (a) of this section of their
interest in the appeal and their address.
(c) An appellant or interested party failing to file an address or
change of address as specified in this section may not object to lack of
notice or service attributable to his/her failure to indicate a new
address.
Sec.2.15 Computation of time.
In computing any period of time prescribed or allowed in this part,
calendar days shall be used. Computation shall not include the day on
which a decision being appealed was made, service or notice was
received, a document was filed, or other event occurred causing time to
begin to run. Computation shall include the last day of the period,
unless it is a Saturday, a Sunday, or a legal holiday, in which event
the period runs until the end of the next day which is not a Saturday, a
Sunday, or a legal holiday.
Sec.2.16 Extensions of time.
An official to whom an appeal is made may, upon a showing of good
cause by a party and with notice to all other parties, extend the period
for filing or serving any document; provided, however, that no extension
will be granted for filing a notice of appeal under Sec.2.9 of this
part or serve by itself to extend any period specified by law or
regulation other than in this part.
Sec.2.17 Summary dismissal.
(a) An appeal under this part will be dismissed if the notice of
appeal is not filed within the time specified in Sec.2.9(a).
(b) An appeal under this part may be subject to summary dismissal
for the following causes:
(1) If after the appellant is given an opportunity to amend them,
the appeal documents do not state the reasons why the appellant believes
the decision being appealed is in error, or the reasons for the appeal
are not otherwise evident in the documents, or
(2) If the appellant has been required to post a bond and fails to
do so.
Sec.2.18 Consolidation of appeals.
Separate proceedings pending before one official under this part and
involving common questions of law or fact may be consolidated by the
official conducting such proceedings, pursuant to a motion by any party
or on the initiative of the official.
Sec.2.19 Action by Area Directors and Education Programs officials
on appeal.
(a) Area Directors, Area Education Programs Administrators, Agency
Superintendents for Education, Presidents of Post-Secondary Schools and
the Deputy to the Assistant Secretary--Indian Affairs/Director (Indian
Education Programs) shall render written decisions in all cases appealed
to them within 60 days after all time for pleadings (including all
extensions granted) has expired. The decision shall include a statement
that the decision may be appealed pursuant to this part, identify the
official to whom it may be appealed and indicate the appeal procedures,
including the 30-day time limit for filing a notice of appeal.
(b) A copy of the decision shall be sent to the appellant and each
known interested party by certified or registered mail, return receipt
requested. Such receipts shall become a permanent part of the record.
Sec.2.20 Action by the Assistant Secretary--Indian Affairs on appeal.
(a) When a decision is appealed to the Interior Board of Indian
Appeals, a copy of the notice of appeal shall be sent to the Assistant
Secretary--Indian Affairs.
(b) The notice of appeal sent to the Interior Board of Indian
Appeals shall
[[Page 15]]
certify that a copy has been sent to the Assistant Secretary--Indian
Affairs.
(c) In accordance with the provisions of Sec.4.332(b) of title 43
of the Code of Federal Regulations, a notice of appeal to the Board of
Indian Appeals shall not be effective until 20 days after receipt by the
Board, during which time the Assistant Secretary--Indian Affairs shall
have authority to decide to:
(1) Issue a decision in the appeal, or
(2) Assign responsibility to issue a decision in the appeal to a
Deputy to the Assistant Secretary--Indian Affairs.
The Assistant Secretary--Indian Affairs will not consider petitions to
exercise this authority. If the Assistant Secretary--Indian Affairs
decides to issue a decision in the appeal or to assign responsibility to
issue a decision in the appeal to a Deputy to the Assistant Secretary--
Indian Affairs, he/she shall notify the Board of Indian Appeals, the
deciding official, the appellant, and interested parties within 15 days
of his/her receipt of a copy of the notice of appeal. Upon receipt of
such notification, the Board of Indian Appeals shall transfer the appeal
to the Assistant Secretary--Indian Affairs. The decision shall be signed
by the Assistant Secretary--Indian Affairs or a Deputy to the Assistant
Secretary--Indian Affairs within 60 days after all time for pleadings
(including all extensions granted) has expired. If the decision is
signed by the Assistant Secretary--Indian Affairs, it shall be final for
the Department and effective immediately unless the Assistant
Secretary--Indian Affairs provides otherwise in the decision. Except as
otherwise provided in Sec.2.20(g), if the decision is signed by a
Deputy to the Assistant Secretary--Indian Affairs, it may be appealed to
the Board of Indian Appeals pursuant to the provisions of 43 CFR part 4,
subpart D.
(d) A copy of the decision shall be sent to the appellant and each
known interested party by certified or registered mail, return receipt
requested. Such receipts shall become a permanent part of the record.
(e) If the Assistant Secretary--Indian Affairs or the Deputy to the
Assistant Secretary--Indian Affairs to whom the authority to issue a
decision has been assigned pursuant to Sec.2.20(c) does not make a
decision within 60 days after all time for pleadings (including all
extensions granted) has expired, any party may move the Board of Indian
Appeals to assume jurisdiction subject to 43 CFR 4.337(b). A motion for
Board decision under this section shall invest the Board with
jurisdiction as of the date the motion is received by the Board.
(f) When the Board of Indian Appeals, in accordance with 43 CFR
4.337(b), refers an appeal containing one or more discretionary issues
to the Assistant Secretary--Indian Affairs for further consideration,
the Assistant Secretary--Indian Affairs shall take action on the appeal
consistent with the procedures in this section.
(g) The Assistant Secretary--Indian Affairs shall render a written
decision in an appeal from a decision of the Deputy to the Assistant
Secretary--Indian Affairs/Director (Indian Education Programs) within 60
days after all time for pleadings (including all extensions granted) has
expired. A copy of the decision shall be sent to the appellant and each
known interested party by certified or registered mail, return receipt
requested. Such receipts shall become a permanent part of the record.
The decision shall be final for the Department and effective immediately
unless the Assistant Secretary--Indian Affairs provides otherwise in the
decision.
Sec.2.21 Scope of review.
(a) When a decision has been appealed, any information available to
the reviewing official may be used in reaching a decision whether part
of the record or not.
(b) When the official deciding an appeal believes it appropriate to
consider documents or information not contained in the record on appeal,
the official shall notify all interested parties of the information and
they shall be given not less than 10 days to comment on the information
before the appeal is decided. The deciding official shall include in the
record copies of documents or a description of the information used in
arriving at the decision. Except where disclosure of the actual
documents used may be prohibited by law, copies of the information shall
be made
[[Page 16]]
available to the parties upon request and at their expense.
PART 5_PREFERENCE IN EMPLOYMENT--Table of Contents
Sec.
5.1 Definitions.
5.2 Appointment actions.
5.3 Application procedure for preference eligibility.
5.4 Information collection.
Authority: 4 Stat. 737, 25 U.S.C. 43; 22 Stat. 88, 25 U.S.C. 46; 28
Stat. 313, 25 U.S.C. 44; 24 Stat. 389, 25 U.S.C. 348; and 48 Stat. 986,
25 U.S.C. 472 and 479.
Sec.5.1 Definitions.
For purposes of making appointments to vacancies in all positions in
the Bureau of Indian Affairs a preference will be extended to persons of
Indian descent who are:
(a) Members of any recognized Indian tribe now under Federal
Jurisdiction;
(b) Descendants of such members who were, on June 1, 1934, residing
within the present boundaries of any Indian reservation;
(c) All others of one-half or more Indian blood of tribes indigenous
to the United States;
(d) Eskimos and other aboriginal people of Alaska; and
(e) For one (1) year or until the Osage Tribe has formally
organized, whichever comes first, effective January 5, 1989, a person of
at least one-quarter degree Indian ancestry of the Osage Tribe of
Indians, whose rolls were closed by an act of Congress.
[43 FR 2393, Jan. 17, 1978. Redesignated at 47 FR 13327, Mar. 30, 1982,
as amended at 54 FR 283, Jan. 5, 1989]
Sec.5.2 Appointment actions.
(a) Preference will be afforded a person meeting any one of the
standards of Sec.5.1 whether the appointment involves initial hiring,
reinstatement, transfer, reassignment or promotion.
(b) Preference eligibles may be given a Schedule A excepted
appointment under Exception Number 213.3112(a)(7). However, if the
individuals are within reach on a Civil Service Register, they may be
given a competitive appointment.
[43 FR 2393, Jan. 17, 1978. Redesignated at 47 FR 13327, Mar. 30, 1982,
as amended at 49 FR 12702, Mar. 30, 1984]
Sec.5.3 Application procedure for preference eligibility.
(a) Proof of eligibility must be submitted with the person's
application for a position.
(b) In order for a person to be considered a preference eligible
according to the standards of Sec.5.1, they must submit proof of
membership, descendancy or degree of Indian ancestry as indicated on
rolls or records acceptable to the Secretary.
[43 FR 2393, Jan. 17, 1978. Redesignated at 47 FR 13327, Mar. 30, 1982]
Sec.5.4 Information collection.
The Office of Management and Budget has informed the Department of
the Interior that the information collection requirements contained in
part 5 need not be reviewed by them under the Paperwork Reduction Act
(44 U.S.C. 3501 et seq.).
[54 FR 283, Jan. 5, 1989]
[[Page 17]]
SUBCHAPTER B_LAW AND ORDER
PART 10_INDIAN COUNTRY DETENTION FACILITIES AND PROGRAMS--
Table of Contents
Sec.
10.1 Why are policies and standards needed for Indian country detention
programs?
10.2 Who is responsible for developing and maintaining the policies and
standards for detention and holding facilities in Indian
country?
10.3 Who must follow these policies and standards?
10.4 What happens if the policies and standards are not followed?
10.5 Where can I find the policies and standards for the administration,
operation, services, and physical plant/construction of Indian
country detention, community residential, and holding
facilities?
10.6 How is the BIA assured that the policies and standards are being
applied uniformly and facilities are properly accredited?
10.7 Where do I find help or receive technical assistance in complying
with the policies and standards?
10.8 What minimum records must be kept and reports made at each
detention, community residential, or holding facility in
Indian country?
10.9 If a person is detained or incarcerated in an Indian country
detention, community residential, or holding facility, how
would they know what their rights, privileges, safety,
protection and expected behavior would be?
10.10 What happens if I believe my civil rights have been violated while
incarcerated in an Indian country detention or holding
facility?
10.11 How would someone detained or incarcerated, or their
representative, get the BIA policies and standards?
Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 13, 2417, 2453, and 2802.
Source: 61 FR 34374, July 2, 1996, unless otherwise noted.
Sec.10.1 Why are policies and standards needed for Indian country
detention programs?
Policies and standards are required to ensure that all Bureau of
Indian Affairs (BIA) and tribal entities that receive Federal funding
for the operation, maintenance, design and construction or renovation of
detention facilities, community residential, or holding facilities are
supporting constitutional rights and are complying with the Indian Law
Enforcement Reform Act of 1990. Self-governance tribes and tribes with
limited jurisdiction are encouraged to follow the regulations in this
part, and other BIA manuals and handbooks. The provision for funding
tribes for detention programs under the Indian Alcohol and Substance
Abuse Prevention and Treatment Act, Public Law 99-570, (25 U.S.C. 2453)
requires standards and procedures for such facilities.
[61 FR 34374, July 2, 1996; 61 FR 65473, Dec. 13, 1996]
Sec.10.2 Who is responsible for developing and maintaining the
policies and standards for detention and holding facilities in
Indian country?
The Director, Office of Law Enforcement Services who reports to the
Deputy Commissioner of Indian Affairs, BIA, establishes policies,
procedures, and standards for the operations, design, planning,
maintenance, renovation, and construction of detention programs in the
BIA and by tribal contract under Indian Self-Determination and Education
Assistance Act, Public Law 93-638, as amended, 25 U.S.C. 450.
Sec.10.3 Who must follow these policies and standards?
You must follow these minimum policies, standards, and guides if you
are part of the BIA or tribal detention or rehabilitation program
receiving Federal funding. Self-governance tribes and tribes with
limited jurisdiction are encouraged to follow the regulations in this
part, and other BIA manuals and handbooks. Detention officers, guards,
cooks and other staff conducting business in the facilities must meet
minimum standards of law enforcement personnel as prescribed in 25 CFR
part 12, subpart D, ``Qualifications and Training Requirements.'' Those
tribal programs not receiving Federal funding under the Indian Self-
Determination and Education Assistance Act (Public Law 93-638, as
amended) who wish to be accredited are encouraged to use the policies
and standards in that
[[Page 18]]
part since they have been modified and approved for Indian country.
Sec.10.4 What happens if the policies and standards are not followed?
The risk for human and civil rights violations due to lack of common
standards will subject the operation and/or facility to unnecessary
exposure to liability. Lack of employee standards, particularly for
training and background checks, will increase the risk of misconduct and
vicarious liability of the tribes and the Federal government through
tort claims. Funding sources for detention programs may become scarce to
nonexistent because of contract noncompliance. The tribes' opportunity
to receive funding from potential resource sharing agreements with other
law enforcement agencies may be damaged because the facility may have to
be closed for cause due to violation of the life safety codes.
Sec.10.5 Where can I find the policies and standards for the
administration, operation, services, and physical plant/construction
of Indian country detention, community residential, and holding
facilities?
The Bureau of Indian Affairs, Department of the Interior, maintains
a manual of policies and procedures called the Bureau of Indian Affairs
Manual (BIAM). The chapter 69 BIAM titled ``Indian Country Detention
Facilities and Programs,'' contains the BIA's policies, procedures, and
standards for detention and holding programs in Indian country. The
standards for the programs within the BIAM are in handbook format for
easy field reference and use. Copies of the chapter 69 BIAM and
handbooks may be obtained from the Director, Office of Law Enforcement
Services.
[61 FR 34374, July 2, 1996; 61 FR 65473, Dec. 13, 1996]
Sec.10.6 How is the BIA assured that the policies and standards
are being applied uniformly and facilities are properly accredited?
The tribes and BIA programs will use a phased approach to meeting
all non-mandatory detention standards and will document progress on
uniform reporting. The BIA Office of Law Enforcement Services will
conduct periodic operational evaluations for oversight.
Sec.10.7 Where do I find help or receive technical assistance
in complying with the policies and standards?
The BIA has a trained Detention Specialist on the staff of the
Office of Law Enforcement Services, Albuquerque, New Mexico, who is
available to conduct evaluations and provide technical assistance or
guidance in all facets of Indian country detention programs.
Sec.10.8 What minimum records must be kept and reports made
at each detention, community residential, or holding facility
in Indian country?
The Director, Office of Law Enforcement Services, BIA, will develop
all necessary requirements for maintaining records, reporting data, and
archiving information. These requirements will be published in 69 BIAM,
``Indian Country Detention Facilities and Programs.''
[61 FR 34374, July 2, 1996; 61 FR 65473, Dec. 13, 1996]
Sec.10.9 If a person is detained or incarcerated in an Indian country
detention, community residential, or holding facility, how would they
know what their rights, privileges, safety, protection and
expected behavior would be?
When an individual is incarcerated in an Indian country detention,
community residential, or holding facility, he/she will be given, or in
some cases notified of the availability of, an Inmate Handbook. This
book of guidelines describes in detail the inmate's rights, privileges,
protection and safety, cleanliness and sanitation, and general health
and nutritional standards. The Inmate Handbook describes the emergency
evacuation procedures, medical, counseling, rehabilitation services,
visitation procedures, and other appropriate information. The Inmate
Handbook is published by the Director, Office of Law Enforcement
Services and maintained by the detention facility administrator at each
facility location.
[61 FR 34374, July 2, 1996; 61 FR 65473, Dec. 13, 1996]
[[Page 19]]
Sec.10.10 What happens if I believe my civil rights have been
violated while incarcerated in an Indian country detention or
holding facility?
All allegations of civil rights violations must be reported
immediately to the Internal Affairs Branch of the Office of Law
Enforcement Services. This office will ensure that such allegations are
immediately reported to the Civil Rights Division of the U.S. Department
of Justice through established procedures. The BIA Internal Affairs
Branch may also investigate alleged violations and make recommendations
for additional action as necessary. Detailed instructions on the
procedure to report violations can be found in the Inmate Handbook.
Sec.10.11 How would someone detained or incarcerated, or their
representative, get the BIA policies and standards?
At each detention, community residential, or holding facility
located in a tribal jurisdiction where federal funds are used for
operations or maintenance programs, the BIA's policies, standards, and
procedures will be made available upon request. The Inmate Handbook will
be made available to all persons at the time they are incarcerated or
detained in a facility. There may be times when this may be delayed due
to the physical or mental condition of the person at time of
incarceration. In these cases, the Inmate Handbook will be made
available when the person is deemed receptive and cognizant by the
detention officer in charge. All policies, standards, procedures, and
guidelines are available at each facility to the public or by writing to
the Director, Office of Law Enforcement Services.
[61 FR 34374, July 2, 1996; 61 FR 65473, Dec. 13, 1996]
PART 11_COURTS OF INDIAN OFFENSES AND LAW AND ORDER CODE--
Table of Contents
Subpart A_Application; Jurisdiction
Sec.
11.100 Where are Courts of Indian Offenses established?
11.102 What is the purpose of this part?
11.104 When does this part apply?
11.106 Who is an Indian for purposes of this part?
11.108 How are tribal ordinances affected by this part?
11.110 How are tribal customs affected by this part?
11.112 [Reserved]
11.114 What is the criminal jurisdiction of the Court of Indian
Offenses?
11.116 What is the civil jurisdiction of a Court of Indian Offenses?
11.118 What are the jurisdictional limitations of the Court of Indian
Offenses?
Subpart B_Courts of Indian Offenses; Personnel; Administration
11.200 What is the composition of the Court of Indian Offenses?
11.201 How are magistrates for the Court of Indian Offenses appointed?
11.202 How is a magistrate of the Court of Indian Offenses removed?
11.203 How are the clerks of the Court of Indian Offenses appointed and
what are their duties?
11.204 Prosecutors.
11.205 Are there standards for the appearance of attorneys and lay
counselors?
11.206 Is the Court of Indian Offenses a court of record?
11.207 What are the responsibilities of Bureau of Indian Affairs
employees?
11.208 May Individual Indian Money accounts be used for payment of
judgments?
11.209 How does the Court of Indian Offenses dispose of fines?
Subpart C_Criminal Procedure
11.300 Complaints.
11.301 Arrests.
11.302 Arrest warrants.
11.303 Notification of rights prior to custodial interrogation.
11.304 Summons in lieu of warrant.
11.305 Search warrants.
11.306 Search without a warrant.
11.307 Disposition of seized property.
11.308 Commitments.
11.309 Arraignments.
11.310 Bail.
11.311 Subpoenas.
11.312 Witness fees.
11.313 Trial procedure.
11.314 Jury trials.
11.315 Sentencing.
11.316 Probation.
11.317 Parole.
11.318 Extradition.
Subpart D_Criminal Offenses
11.400 Assault.
[[Page 20]]
11.401 Recklessly endangering another person.
11.402 Terroristic threats.
11.403 Unlawful restraint.
11.404 False imprisonment.
11.405 Interference with custody.
11.406 Criminal coercion.
11.407 Sexual assault.
11.408 Indecent exposure.
11.409 Reckless burning or exploding.
11.410 Criminal mischief.
11.411 Criminal trespass.
11.412 Theft.
11.413 Receiving stolen property.
11.414 Embezzlement.
11.415 Fraud.
11.416 Forgery.
11.417 Extortion.
11.418 Misbranding.
11.419 Unauthorized use of automobiles and other vehicles.
11.420 Tampering with records.
11.421 Bad checks.
11.422 Unauthorized use of credit cards.
11.423 Defrauding secured creditors.
11.424 Neglect of children.
11.425 Persistent non-support.
11.426 Bribery.
11.427 Threats and other improper influence in official and political
matters.
11.428 Retaliation for past official action.
11.429 Perjury.
11.430 False alarms.
11.431 False reports.
11.432 Impersonating a public servant.
11.433 Disobedience to lawful order of court.
11.434 Resisting arrest.
11.435 Obstructing justice.
11.436 Escape.
11.437 Bail jumping.
11.438 Flight to avoid prosecution or judicial process.
11.439 Witness tampering.
11.440 Tampering with or fabricating physical evidence.
11.441 Disorderly conduct.
11.442 Riot; failure to disperse.
11.443 Harassment.
11.444 Carrying concealed weapons.
11.445 Driving violations.
11.446 Cruelty to animals.
11.447 Maintaining a public nuisance.
11.448 Abuse of office.
11.449 Violation of an approved tribal ordinance.
11.450 Maximum fines and sentences of imprisonment.
11.451 Abuse of psychotoxic chemical solvents.
11.452 Possession of a controlled substance.
11.453 Prostitution or solicitation.
11.454 Domestic violence.
Subpart E_Civil Actions
11.500 Law applicable to civil actions.
11.501 Judgments in civil actions.
11.502 Costs in civil actions.
11.503 Applicable civil procedure.
11.504 Applicable rules of evidence.
Subpart F_Domestic Relations
11.600 Marriages.
11.601 Marriage licenses.
11.602 Solemnization.
11.603 Invalid or prohibited marriages.
11.604 Declaration of invalidity.
11.605 Dissolution.
11.606 Dissolution proceedings.
11.607 Temporary orders and temporary injunctions.
11.608 Final decree; disposition of property; maintenance; child
support; custody.
11.609 Determination of paternity and support.
11.610 Appointment of guardians.
11.611 Change of name.
Subpart G_Probate Proceedings
11.700 Probate jurisdiction.
11.701 Duty to present will for probate.
11.702 Proving and admitting will.
11.703 Petition and order to probate estate.
11.704 Appointment and duties of executor or administrator.
11.705 Removal of executor or administrator.
11.706 Appointment and duties of appraiser.
11.707 Claims against estate.
11.708 Sale of property.
11.709 Final account.
11.710 Determination of the court.
11.711 Descent and distribution.
11.712 Closing estate.
11.713 Small estates.
Subpart H_Appellate Proceedings
11.800 Jurisdiction of appellate division.
11.801 Procedure on appeal.
11.802 Judgment against surety.
11.803 Record on appeal.
11.804 Briefs and memoranda.
11.805 Oral argument.
11.806 Rules of court.
Subpart I_Children's Court
11.900 Definitions.
11.901 The children's court established.
11.902 Non-criminal proceedings.
11.903 Presenting officer.
11.904 Guardian ad litem.
11.905 Jurisdiction.
11.906 Rights of parties.
11.907 Transfer to Court of Indian Offenses.
11.908 Court records.
11.909 Law enforcement records.
11.910 Expungement.
11.911 Appeal.
11.912 Contempt of court.
[[Page 21]]
Subpart J_Juvenile Offender Procedure
11.1000 Complaint.
11.1001 Warrant.
11.1002 Custody.
11.1003 Law enforcement officer's duties.
11.1004 Detention and shelter care.
11.1005 Preliminary inquiry.
11.1006 Investigation by the presenting officer.
11.1007 Petition.
11.1008 Date of hearing.
11.1009 Summons.
11.1010 Adjudicatory hearing.
11.1011 Dispositional hearing.
11.1012 Dispositional alternatives.
11.1013 Modification of dispositional order.
11.1014 Medical examination.
Subpart K_Minor-in-Need-of-Care Procedure
11.1100 Complaint.
11.1101 Warrant.
11.1102 Custody.
11.1103 Law enforcement officer's duties.
11.1104 Shelter care.
11.1105 Preliminary inquiry.
11.1106 Investigation by the presenting officer.
11.1107 Petition.
11.1108 Date of hearing.
11.1109 Summons.
11.1110 Minor-in-need-of-care adjudicatory hearing.
11.1111 Minor-in-need-of-care dispositional hearing.
11.1112 Dispositional alternatives.
11.1113 Modification of dispositional order.
11.1114 Termination.
11.1115 Information collection.
Subpart L_Child protection and domestic violence procedures
11.1200 Definitions.
11.1202 How to petition for an order of protection.
11.1204 Obtaining an emergency order of protection.
11.1206 Obtaining a regular (non-emergency) order of protection.
11.1208 Service of the protection order.
11.1210 Duration and renewal of a regular protection order.
11.1212 Consequences of disobedience or interference.
11.1214 Relationship of this part to other remedies.
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.
Source: 58 FR 54411, Oct. 21, 1993, unless otherwise noted.
Subpart A_Application; Jurisdiction
Source: 73 FR 39859, July 11, 2008, unless otherwise noted.
Sec.11.100 Where are Courts of Indian Offenses established?
(a) A list of the areas in Indian Country where Courts of Indian
Offenses are established is available on the Bureau of Indian Affairs
website (www.bia.gov) and is published periodically in the Federal
Register.
(b) The Director, Bureau of Indian Affairs, will maintain on the
Bureau of Indian Affairs website (www.bia.gov) an updated list of the
areas in Indian Country where Courts of Indian Offenses are established
and, upon any change to the list, will publish notice of the change in
the Federal Register with an updated complete list.
[85 FR 646, Jan. 7, 2020]
Sec.11.102 What is the purpose of this part?
It is the purpose of the regulations in this part to provide
adequate machinery for the administration of justice for Indian tribes
in those areas of Indian country where tribes retain jurisdiction over
Indians that is exclusive of State jurisdiction but where tribal courts
have not been established to exercise that jurisdiction.
Sec.11.104 When does this part apply?
(a) The regulations in this part continue to apply to each area in
Indian Country listed in accordance with Sec.11.100 until either:
(1) BIA and the tribe enter into a contract or compact for the tribe
to provide judicial services; or
(2) The tribe has put into effect a law-and-order code that
establishes a court system and that meets the requirements of paragraph
(b) of this section.
(b) When a tribe adopts a legal code and establishes a judicial
system, the tribe must notify the Assistant Secretary--Indian Affairs or
his or her designee. The law-and-order code must be adopted by the tribe
in accordance
[[Page 22]]
with its constitution and by-laws or other governing documents.
[73 FR 39859, July 11, 2008, as amended at 85 FR 646, Jan. 7, 2020]
Sec.11.106 Who is an Indian for purposes of this part?
For the purposes of the enforcement of the regulations in this part,
an Indian is defined as a person who is a member of an Indian tribe
which is recognized by the Federal Government as eligible for services
from the BIA, and any other individual who is an ``Indian'' for the
purposes of 18 U.S.C. 1152-1153.
Sec.11.108 How are tribal ordinances affected by this part?
The governing body of each tribe occupying the Indian country over
which a Court of Indian Offenses has jurisdiction may enact ordinances
which, when approved by the Assistant Secretary--Indian Affairs or his
or her designee:
(a) Are enforceable in the Court of Indian Offenses having
jurisdiction over the Indian country occupied by that tribe; and
(b) Supersede any conflicting regulation in this part.
Sec.11.110 How are tribal customs affected by this part?
Each Court of Indian Offenses shall apply the customs of the tribe
occupying the Indian country over which it has jurisdiction to the
extent that they are consistent with the regulations of this part.
Sec.11.112 [Reserved]
Sec.11.114 What is the criminal jurisdiction of the Court of Indian
Offenses?
(a) Except as otherwise provided in this title, each Court of Indian
Offenses has jurisdiction over any action by an Indian (hereafter
referred to as person) that is made a criminal offense under this part
and that occurred within the Indian country subject to the court's
jurisdiction.
(b) No person may be prosecuted, tried or punished for any offense
unless the complaint is filed within 5 years after the offense is
committed.
Sec.11.116 What is the civil jurisdiction of a Court of Indian
Offenses?
(a) Except as otherwise provided in this title, each Court of Indian
Offenses has jurisdiction over any civil action arising within the
territorial jurisdiction of the court in which:
(1) The defendant is an Indian; or
(2) Other claims, provided at least one party is an Indian.
(b) Any civil action commenced in a Court of Indian Offenses is
barred unless the complaint is filed within 3 years after the right of
action first accrues.
Sec.11.118 What are the jurisdictional limitations of the Court
of Indian Offenses?
(a) A Court of Indian Offenses may exercise over a Federal or State
official only the same jurisdiction that it could exercise if it were a
tribal court. The jurisdiction of Courts of Indian Offenses does not
extend to Federal or State employees acting within the scope of their
employment.
(b) A Court of Indian Offenses may not adjudicate an election
dispute, take jurisdiction over a suit against a tribe, or adjudicate
any internal tribal government dispute, unless the relevant tribal
governing body passes a resolution, ordinance, or referendum granting
the court jurisdiction.
(c) In deciding who is a tribal official, BIA will give deference to
a decision of the Court of Indian Offenses, acting as a tribal forum by
resolution or ordinance of a tribal governing body under paragraph (b)
of this section.
(d) A tribe may not be sued in a Court of Indian Offenses unless its
tribal governing body explicitly waives its tribal immunity by tribal
resolution or ordinance.
Subpart B_Courts of Indian Offenses; Personnel; Administration
Sec.11.200 What is the composition of the Court of Indian Offenses?
(a) Each court shall be composed of a trial division and an
appellate division.
(b) A chief magistrate will be appointed for each court who will, in
addition to other judicial duties, be responsible for the administration
of the
[[Page 23]]
court and the supervision of all court personnel.
(c) Appeals must be heard by a panel of magistrates who were not
involved at the tribal/trial level.
(d) Decisions of the appellate division are final and are not
subject to administrative appeals within the Department of the Interior.
[58 FR 54411, Oct. 21, 1993, as amended at 73 FR 39860, July 11, 2008]
Sec.11.201 How are magistrates for the Court of Indian Offenses appointed?
(a) Each magistrate shall be appointed by the Assistant Secretary--
Indian Affairs or his or her designee subject to confirmation by a
majority vote of the tribal governing body of the tribe occupying the
Indian country over which the court has jurisdiction, or, in the case of
multi-tribal courts, confirmation by a majority of the tribal governing
bodies of the tribes under the jurisdiction of a Court of Indian
Offenses.
(b) Each magistrate shall hold office for a period of four years,
unless sooner removed for cause or by reason of the abolition of the
office, but is eligible for reappointment.
(c) No person is eligible to serve as a magistrate of a Court of
Indian Offenses who has ever been convicted of a felony or, within one
year of the date of service or application, of a misdemeanor.
(d) No magistrate shall be qualified to act as such wherein he or
she has any direct conflicting interest, real or apparent.
(e) A tribal governing body may set forth such other qualifications
for magistrates of the Court of Indian Offenses as it deems appropriate,
subject to the approval of the Assistant Secretary--Indian Affairs, or
his or her designee.
(f) A tribal governing body may also recommend requirements for the
training of magistrates of the Court of Indian Offenses to the Assistant
Secretary--Indian Affairs.
Sec.11.202 How is a magistrate of the Court of Indian Offenses
removed?
Any magistrate of a Court of Indian Offenses may be suspended,
dismissed or removed by the Assistant Secretary--Indian Affairs, or his
or her designee, for cause, upon the written recommendation of the
tribal governing body, and, in the case of multi-tribal courts, upon the
recommendation of a majority of the tribal governing bodies of the
tribes under the jurisdiction of a Court of Indian Offenses, or pursuant
to his or her own discretion.
Sec.11.203 How are the clerks of the Court of Indian Offenses
appointed and what are their duties?
(a) Except as may otherwise be provided in a contract with the tribe
occupying the Indian country over which the court has jurisdiction, the
chief magistrate shall appoint a clerk of court for the Court of Indian
Offenses within his or her jurisdiction, subject to the superintendent's
approval.
(b) The clerk shall render assistance to the court, to local law
enforcement officers and to individual members of the tribe in the
drafting of complaints, subpoenas, warrants, commitments, and other
documents incidental to the functions of the court. The clerk shall also
attend and keep a record of all proceedings of the court and manage all
monies received by the court.
(c) The clerk of court shall forward any monies received on
judgments due to the person, agency, or corporation to which entitled,
within 30 days unless directed otherwise by a magistrate of the Court of
Indian Offenses.
Sec.11.204 Prosecutors.
Except as may otherwise be provided in a contract with the tribe
occupying the Indian country over which the court has jurisdiction, the
superintendent shall appoint a prosecutor for each Court of Indian
Offenses within his or her jurisdiction.
Sec.11.205 Are there standards for the appearance of attorneys
and lay counselors?
(a) No defendant in a criminal proceeding shall be denied the right
to counsel.
(b) The chief magistrate shall prescribe in writing standards
governing the admission and practice in the
[[Page 24]]
Court of Indian Offenses of professional attorneys and lay counselors.
Sec.11.206 Is the Court of Indian Offenses a court of record?
(a) Each Court of Indian Offenses shall keep a record of all
proceedings of the court containing the title of the case, the names of
the parties, the complaint, all pleadings, the names and addresses of
all witnesses, the date of any hearing or trial, the name of any
magistrate conducting such hearing or trial, the findings of the court
or jury, the judgment and any other information the court determines is
important to the case.
(b) The record in each case shall be available for inspection by the
parties to the case.
(c) Except for cases in which a juvenile is a party or the subject
of a proceeding, and for cases whose records have been sealed by the
court, all case records shall be available for inspection by the public.
(d) Such court records are part of the records of the BIA agency
having jurisdiction over the Indian country where the Court of Indian
Offenses is located and shall be protected in accordance with 44 U.S.C.
3102.
Sec.11.207 What are the responsibilities of Bureau of Indian Affairs
employees?
(a) No employee of the BIA may obstruct, interfere with, or control
the functions of any Court of Indian Offenses, or influence such
functions in any manner except as permitted by Federal statutes or the
regulations in this part or in response to a request for advice or
information from the court.
(b) Employees of the BIA shall assist the court, upon its request,
in the preparation and presentation of facts in the case and in the
proper treatment of individual offenders.
Sec.11.208 May Individual Indian Money accounts be used for payment
of judgments?
(a) Any Court of Indian Offenses may make application to the
superintendent who administers the individual Indian money account of a
defendant who has failed to satisfy a money judgment from the court to
obtain payment of the judgment from funds in the defendant's account.
The court shall certify the record of the case to the superintendent. If
the superintendent so directs, the disbursing agent shall pay over to
the injured party the amount of the judgment or such lesser amount as
may be specified by the superintendent.
(b) A judgment of a Court of Indian Offenses shall be considered a
lawful debt in all proceedings held by the Department of the Interior or
by a Court of Indian Offenses to distribute decedents' estates.
Sec.11.209 How does the Court of Indian Offenses dispose of fines?
All money fines imposed for the commission of an offense shall be in
the nature of an assessment for the payment of designated court
expenses. The fines assessed shall be paid over by the clerk of the
court to the disbursing agent of the reservation for deposit as a
``special deposit, court funds'' to the disbursing agent's official
credit in the Treasury of the United States. The disbursing agent shall
withdraw such funds, in accordance with existing regulations, upon order
of the clerk of the court signed by a judge of the court for the payment
of specified expenses. The disbursing agent and the clerk of the court
shall keep an account of all such deposits and withdrawals available for
public inspection.
Subpart C_Criminal Procedure
Sec.11.300 Complaints.
(a) A complaint is a written statement of the essential facts
charging that a named individual(s) has committed a particular offense.
All criminal prosecutions shall be initiated by a complaint filed with
the court by a law enforcement officer and sworn to by a person having
personal knowledge of the offense.
(b) Complaints shall contain:
(1) The signature of the complaining witness, or witnesses, sworn
before a magistrate, a court clerk, a prosecutor, or any law enforcement
officer.
(2) A written statement by the complaining witness or witnesses
having personal knowledge of the violation,
[[Page 25]]
describing in ordinary language the nature of the offense committed
including the time and place as nearly as may be ascertained.
(3) The name or description of the person alleged to have committed
the offense.
(4) A description of the offense charged and the section of the code
allegedly violated.
(c) Complaints must be submitted without unnecessary delay by a law
enforcement officer to the prosecutor and, if he or she approves, to a
judge to determine whether an arrest warrant or summons should be
issued.
(d) When an accused has been arrested without a warrant, a complaint
shall be filed forthwith with the court for review as to whether
probable cause exists to hold the accused, and in no instance shall a
complaint be filed later than at the time of arraignment.
Sec.11.301 Arrests.
(a) Arrest is the taking of a person into police custody in order
that he or she may be held to answer for a criminal offense.
(b) No law enforcement officer shall arrest any person for a
criminal offense except when:
(1) The officer shall have a warrant signed by a magistrate
commanding the arrest of such person, or the officer knows for a
certainty that such a warrant has been issued; or
(2) The offense shall occur in the presence of the arresting
officer; or
(3) The officer shall have probable cause to believe that the person
arrested has committed an offense.
Sec.11.302 Arrest warrants.
(a) Each magistrate of a Court of Indian Offenses shall have the
authority to issue warrants to apprehend any person the magistrate has
probable cause to believe has committed a criminal offense in violation
of the regulations under this part based on a written complaint filed
with the court by a law enforcement officer and bearing the signature of
the complainant.
(b) The arrest warrant shall contain the following information:
(1) Name or description and address, if known, of the person to be
arrested.
(2) Date of issuance of the warrant.
(3) Description of the offense charged.
(4) Signature of the issuing magistrate.
(c) Such warrants may be served only by a BIA or tribal police
officer or other officer commissioned to enforce the regulations of this
part.
Sec.11.303 Notification of rights prior to custodial interrogation.
Prior to custodial interrogation, the suspect shall be advised of
the following rights:
(a) That he or she has the right to remain silent.
(b) That any statements made by him or her may be used against him
or her in court.
(c) That he or she has the right to obtain counsel and, if indigent,
to have counsel appointed for him/her.
Sec.11.304 Summons in lieu of warrant.
(a) When otherwise authorized to arrest a suspect, a law enforcement
officer or a magistrate may, in lieu of a warrant, issue a summons
commanding the accused to appear before the Court of Indian Offenses at
a stated time and place and answer to the charge.
(b) The summons shall contain the same information as a warrant,
except that it may be signed by a police officer.
(c) The summons shall state that if a defendant fails to appear in
response to a summons, a warrant for his or her arrest shall be issued.
(d) The summons, together with a copy of the complaint, shall be
served upon the defendant by delivering a copy to the defendant
personally or by leaving a copy at his or her usual residence or place
of business with any person 18 years of age or older who also resides or
works there. Service shall be made by an authorized law enforcement
officer, who shall file with the record of the case a form indicating
when the summons was served.
Sec.11.305 Search warrants.
(a) Each magistrate of a Court of Indian Offenses shall have the
authority to issue a warrant for the search of premises and for the
seizure of physical evidence of a criminal violation under the
regulations of this part located
[[Page 26]]
within the Indian country over which the court has jurisdiction.
(b) No warrant for search or seizure may be issued unless it is
based on a written and signed statement establishing, to the
satisfaction of the magistrate, that probable cause exists to believe
that the search will lead to discovery of evidence of a criminal
violation under the regulations of this part.
(c) No warrant for search or seizure shall be valid unless it
contains the name or description of the person, vehicle, or premises to
be searched, describes the evidence to be seized, and bears the
signature of the magistrate who issued it.
(d) Warrants may be executed only by a BIA or tribal police officer
or other official commissioned to enforce the regulations under this
part. The executing officer shall return the warrant to the Court of
Indian Offenses within the time limit shown on the face of the warrant,
which in no case shall be longer than ten (10) days from the date of
issuance. Warrants not returned within such time limits shall be void.
Sec.11.306 Search without a warrant.
No law enforcement officer shall conduct any search without a valid
warrant except:
(a) Incident to making a lawful arrest; or
(b) With the voluntary consent of the person being searched; or
(c) When the search is of a moving vehicle and the officer has
probable cause to believe that it contains contraband, stolen property,
or property otherwise unlawfully possessed.
Sec.11.307 Disposition of seized property.
(a) The officer serving and executing a warrant shall make an
inventory of all seized property, and a copy of such inventory shall be
left with every person from whom property is seized.
(b) A hearing shall be held by the Court of Indian Offenses to
determine the disposition of all seized property. Upon satisfactory
proof of ownership, the property shall be delivered immediately to the
owner, unless such property is contraband or is to be used as evidence
in a pending case. Property seized as evidence shall be returned to the
owner after final judgment. Property confiscated as contraband shall be
destroyed or otherwise lawfully disposed of as ordered by the Court of
Indian Offenses.
Sec.11.308 Commitments.
No person may be detained, jailed or imprisoned under the
regulations of this part for longer than 48 hours unless the Court of
Indian Offenses issues a commitment bearing the signature of a
magistrate. A temporary commitment shall be issued for each person held
before trial. A final commitment shall be issued for each person
sentenced to jail after trial.
Sec.11.309 Arraignments.
(a) Arraignment is the bringing of an accused before the court,
informing him or her of his or her rights and of the charge(s) against
him or her, receiving the plea, and setting conditions of pretrial
release as appropriate in accordance with this part.
(b) Arraignment shall be held in open court without unnecessary
delay after the accused is taken into custody and in no instance shall
arraignment be later than the next regular session of court.
(c) Before an accused is required to plead to any criminal charges
the magistrate shall:
(1) Read the complaint to the accused and determine that he or she
understands it and the section(s) of this part that he or she is charged
with violating, including the maximum authorized penalty; and
(2) Advise the accused that he or she has the right to remain
silent, to be tried by a jury if the offense charged is punishable by
imprisonment, to be represented by counsel (which shall be paid for by
the government if the accused is indigent) and that the arraignment will
be postponed should he or she desire to consult with counsel.
(d) The magistrate shall call upon the defendant to plead to the
charge:
(1) If the accused pleads ``not guilty'' to the charge, the
magistrate shall then inform the accused of the trial date and set
conditions for release prior to trial.
(2) If the accused pleads ``guilty'' to the charge, the magistrate
shall accept
[[Page 27]]
the plea only if he or she is satisfied that the plea is made
voluntarily and that the accused understands the consequences of the
plea, including the rights waived by the plea. The magistrate may then
impose sentence or defer sentencing for a reasonable time in order to
obtain any information he or she deems necessary for the imposition of a
just sentence. The accused shall be afforded an opportunity to be heard
by the court prior to sentencing.
(3) If the accused refuses to plead, the judge shall enter a plea of
``not guilty'' on his or her behalf.
(e) The court may, in its discretion, allow a defendant to withdraw
a plea of guilty if it appears that the interest of justice would be
served by doing so.
Sec.11.310 Bail.
(a) Each person charged with a criminal offense under this part
shall be entitled to release from custody pending trial under whichever
one or more of the following conditions is deemed necessary to
reasonably assure the appearance of the person at any time lawfully
required:
(1) Release on personal recognizance upon execution by the accused
of a written promise to appear at trial and all other lawfully required
times;
(2) Release to the custody of a designated person or organization
agreeing to assure the accused's appearance;
(3) Release with reasonable restrictions on the travel, association,
or place of residence of the accused during the period of release;
(4) Release after deposit of a bond or other sufficient collateral
in an amount specified by the magistrate or a bail schedule;
(5) Release after execution of a bail agreement by two responsible
members of the community; or
(6) Release upon any other condition deemed reasonably necessary to
assure the appearance of the accused as required.
(b) Any law enforcement officer authorized to do so by the court may
admit an arrested person to bail pending trial pursuant to a bail
schedule and conditions prepared by the court.
(c) A convicted person may be released from custody pending appeal
on such conditions as the magistrate determines will reasonably assure
the appearance of the accused unless the magistrate determines that
release of the accused is likely to pose a danger to the community, the
accused, or any other person.
(d) The Court of Indian Offenses may revoke its release of the
defendant and order him or her committed at any time where it determines
that the conditions of release will not reasonably assure the appearance
of the defendant, or if any conditions of release have been violated.
Sec.11.311 Subpoenas.
(a) Upon request of any party, the court shall issue subpoenas to
compel the testimony of witnesses, or the production of books, records,
documents or any other physical evidence relevant to the determination
of the case and not an undue burden on the person possessing the
evidence. The clerk of the court may act on behalf of the court and
issue subpoenas which have been signed either by the clerk of the court
or by a magistrate of the Court of Indian Offenses and which are to be
served within Indian country over which the Court of Indian Offenses has
jurisdiction.
(b) A subpoena shall bear the signature of the chief magistrate of
the Court of Indian Offenses, and it shall state the name of the court,
the name of the person or description of the physical evidence to be
subpoenaed, the title of the proceeding, and the time and place where
the witness is to appear or the evidence is to be produced.
(c) A subpoena may be served at any place but any subpoena to be
served outside of the Indian country over which the Court of Indian
Offenses has jurisdiction shall be issued personally by a magistrate of
the Court of Indian Offenses.
(d) A subpoena may be served by any law enforcement officer or other
person appointed by the court for such purpose. Service of a subpoena
shall be made by delivering a copy of it to the person named or by
leaving a copy at his or her place of residence or business with any
person 18 years of age or older who also resides or works there.
[[Page 28]]
(e) Proof of service of the subpoena shall be filed with the clerk
of the court by noting on the back of the subpoena the date, time and
place that it was served and noting the name of the person to whom it
was delivered. Proof of service shall be signed by the person who
actually served the subpoena.
(f) In the absence of a justification satisfactory to the court, a
person who fails to obey a subpoena may be deemed to be in contempt of
court and a bench warrant may be issued for his or her arrest.
Sec.11.312 Witness fees.
(a) Each fact witness answering a subpoena is entitled to a fee of
not less than the hourly minimum wage scale established by 29 U.S.C.
206(a)(1) and any of its subsequent revisions, plus actual cost of
travel. Each fact witness testifying at a hearing shall receive pay for
a full day (eight hours) plus travel allowance.
(b) The Court of Indian Offenses may order any party calling a
witness to testify without a subpoena to compensate the witness for
actual traveling and living expenses incurred in testifying.
(c) If the Court of Indian Offenses finds that a complaint was not
filed in good faith but with a frivolous or malicious intent, it may
order the complainant to reimburse the court for expenditures incurred
under this section, and such order may constitute a judgment upon which
execution may levy.
Sec.11.313 Trial procedure.
(a) The time and place of court sessions, and all other details of
judicial procedure shall be set out in rules of court approved by the
chief magistrate of the Court of Indian Offenses.
(b) Courts of Indian Offenses shall be bound by the Federal Rules of
Evidence, except insofar as such rules are superseded by order of the
court or by the existence of inconsistent tribal rules of evidence.
Sec.11.314 Jury trials.
(a) A defendant has a right, upon demand, to a jury trial in any
criminal case:
(1) That is punishable by a maximum sentence of one year
incarceration; or
(2) In which the prosecutor informs the court before the case comes
to trial that a jail sentence will be sought.
(b) If the prosecutor informs the court that no sentence of
incarceration will be sought, the court may not impose a sentence of
incarceration for the offense.
(c) A jury must consist of not less than six residents of the
vicinity in which trial is held, selected from a list of eligible jurors
prepared each year by the court.
(1) An eligible juror must:
(i) Be at least 18 years of age;
(ii) Not have been convicted of a felony; and
(iii) Be otherwise qualified according to standards established by
the Court of Indian Offenses under its general rulemaking authority.
(2) Any party may challenge without cause a maximum of three members
of the jury panel chosen under this section.
(d) The magistrate shall instruct the jury with regard to the
applicable law and the jury shall decide all questions of fact on the
basis of the law.
(e) The jury shall deliberate in secret and return a verdict of
guilty or not guilty. Six out of the eight jurors must concur to render
a verdict.
(f) Each juror who serves on a jury is entitled to a fee not less
than the hourly minimum wage scale established by 29 U.S.C. 206(a)(1),
and any of its subsequent revisions, plus mileage not to exceed the
maximum rate per mile established by the Federal Government of jurors
and witnesses. Each juror shall receive pay for a full day (eight hours)
for any portion of a day served, plus travel allowance.
[58 FR 54411, Oct. 21, 1993, as amended at 73 FR 39861, July 11, 2008]
Sec.11.315 Sentencing.
(a) Any person who has been convicted in a Court of Indian Offenses
of a criminal offense under the regulations of this part may be
sentenced to one or a combination of the following penalties:
(1) Imprisonment for a period up to the maximum permitted by the
section defining the offense, but in no case for longer than one year;
and
[[Page 29]]
(2) A fine in an amount up to the maximum permitted by the section
defining the offense, but in no case greater than $5,000.
(b) In addition to or in lieu of the penalties provided in paragraph
(a) of this section, the court may require a convicted offender who has
inflicted injury upon the person or property of another to make
restitution or compensate the injured person by means of the surrender
of property, payment of money damages, or the performance of any other
act for the benefit of the injured party.
(c) If, solely because of indigence, a convicted offender is unable
to pay forthwith a money fine assessed under any applicable section, the
court shall allow him or her a reasonable period of time to pay the
entire sum or allow him or her to make reasonable installment payments
to the clerk of the court at specified intervals until the entire sum is
paid. If the offender defaults on such payments the court may find him
or her in contempt of court and imprison him or her accordingly.
[58 FR 54411, Oct. 21, 1993, as amended at 73 FR 39861, July 11, 2008]
Sec.11.316 Probation.
(a) Where a sentence of imprisonment has been imposed on a convicted
offender, the Court of Indian Offenses may, in its discretion, suspend
the serving of such sentence and release the person on probation under
any reasonable conditions deemed appropriate by the court, provided that
the period of probation shall not exceed one year.
(b) Any person who violates the terms of his or her probation may be
required by the court to serve the sentence originally imposed or such
part of it as the court may determine to be suitable giving
consideration to all the circumstances, provided that such revocation of
probation shall not be ordered without a hearing before the court at
which the offender shall have the opportunity to explain his or her
actions.
Sec.11.317 Parole.
(a) Any person sentenced by the court of detention or labor shall be
eligible for parole at such time and under such reasonable conditions as
set by the Court of Indian Offenses.
(b) Any person who violates the conditions of his or her parole may
be required by the court to serve the whole original sentence, provided
that such revocation or parole shall not be ordered without a hearing
before the court at which the offender shall have the opportunity to
explain his or her actions.
Sec.11.318 Extradition.
Any Court of Indian Offenses may order delivery to the proper state,
tribal or BIA law enforcement authorities of any person found within the
jurisdiction of the court, who is charged with an offense in another
jurisdiction. Prior to delivery to the proper officials, the accused
shall be accorded a right to contest the propriety of the court's order
in a hearing before the court.
Subpart D_Criminal Offenses
Sec.11.400 Assault.
(a) A person is guilty of assault if he or she:
(1) Attempts to cause or purposely, knowingly or recklessly causes
bodily injury to another; or
(2) Negligently causes bodily injury to another with a deadly
weapon; or
(3) Attempts by physical menace to put another in fear of imminent
serious bodily injury.
(b) Assault is a misdemeanor unless committed in a fight or scuffle
entered into by mutual consent, in which case it is a petty misdemeanor.
Sec.11.401 Recklessly endangering another person.
A person commits a misdemeanor if he or she recklessly engages in
conduct which places or may place another person in danger of death or
serious bodily injury. Recklessness and danger shall be presumed where a
person knowingly points a firearm at or in the direction of another
person, whether or not the actor believed the firearm to be loaded.
[58 FR 54411, Oct. 21, 1993; 58 FR 58729, Nov. 3, 1993]
[[Page 30]]
Sec.11.402 Terroristic threats.
A person is guilty of a misdemeanor if he or she threatens to commit
any crime of violence with purpose to terrorize another or to cause
evacuation of a building, place of assembly or facility of public
transportation, or otherwise to cause serious public inconvenience or in
reckless disregard of the risk of causing such terror or inconvenience.
Sec.11.403 Unlawful restraint.
A person commits a misdemeanor if he or she knowingly:
(a) Restrains another unlawfully in circumstances exposing him or
her to risk of serious bodily injury; or
(b) Holds another in a condition of involuntary servitude.
Sec.11.404 False imprisonment.
A person commits a misdemeanor if he or she knowingly restrains
another unlawfully so as to interfere substantially with his or her
liberty.
Sec.11.405 Interference with custody.
(a) Custody of children. A person commits a misdemeanor if he or she
knowingly or recklessly takes or entices any child under the age of 18
from the custody of his or her parent, guardian or other lawful
custodian, when he or she has no privilege to do so.
(b) Custody of committed person. A person is guilty of a misdemeanor
if he or she knowingly or recklessly takes or entices any committed
person away from lawful custody when he or she does not have the
privilege to do so. Committed person means, in addition to anyone
committed under judicial warrant, any orphan, neglected or delinquent
child, mentally defective or insane person, or other dependent or
incompetent person entrusted to another's custody by or through a
recognized social agency or otherwise by authority of law.
Sec.11.406 Criminal coercion.
(a) A person is guilty of criminal coercion if, with purpose to
unlawfully restrict another's freedom of action to his or her detriment,
he or she threatens to:
(1) Commit any criminal offense; or
(2) Accuse anyone of a criminal offense; or
(3) Take or withhold action as an official, or cause an official to
take or withhold action.
(b) Criminal coercion is classified as a misdemeanor.
Sec.11.407 Sexual assault.
(a) A person who has sexual contact with another person not his or
her spouse, or causes such other person to have sexual contact with him
or her, is guilty of sexual assault as a misdemeanor, if:
(1) He or she knows that the conduct is offensive to the other
person; or
(2) He or she knows that the other person suffers from a mental
disease or defect which renders him or her incapable of appraising the
nature or his or her conduct; or
(3) He or she knows that the other person is unaware that a sexual
act is being committed; or
(4) The other person is less than 10 years old; or
(5) He or she has substantially impaired the other person's power to
appraise or control his or her conduct, by administering or employing
without the other's knowledge drugs, intoxicants or other means for the
purpose of preventing resistance; or
(6) The other person is less than 16 years old and the actor is at
least four years older than the other person; or
(7) The other person is less than 21 years old and the actor is his
or her guardian or otherwise responsible for general supervision of his
or her welfare; or
(8) The other person is in custody of law or detained in a hospital
or other institution and the actor has supervisory or disciplinary
authority over him or her.
(b) Sexual contact is any touching of the sexual or other intimate
parts of the person for the purpose of arousing or gratifying sexual
desire, or for the purpose of abusing, humiliating, harassing, or
degrading the victim.
Sec.11.408 Indecent exposure.
A person commits a misdemeanor if he or she exposes his or her
genitals under circumstances in which he or she
[[Page 31]]
knows his or her conduct is likely to cause affront or alarm.
Sec.11.409 Reckless burning or exploding.
A person commits a misdemeanor if he or she purposely starts a fire
or causes an explosion, whether on his or her property or another's, and
thereby recklessly:
(a) Places another person in danger of death or bodily injury; or
(b) Places a building or occupied structure of another in danger of
damage or destruction.
Sec.11.410 Criminal mischief.
(a) A person is guilty of criminal mischief if he or she:
(1) Damages tangible property of another purposely, recklessly, or
by negligence in the employment of fire, explosives, or other dangerous
means; or
(2) Purposely or recklessly tampers with tangible property of
another so as to endanger person or property; or
(3) Purposely or recklessly causes another to suffer pecuniary loss
by deception or threat.
(b) Criminal mischief is a misdemeanor if the actor purposely causes
pecuniary loss in excess of $100, or a petty misdemeanor if he or she
purposely or recklessly causes pecuniary loss in excess of $25.
Otherwise, criminal mischief is a violation.
Sec.11.411 Criminal trespass.
(a) A person commits an offense if, knowing that he or she is not
licensed or privileged to do so, he or she enters or surreptitiously
remains in any building or occupied structure. An offense under this
subsection is a misdemeanor if it is committed in a dwelling at night.
Otherwise it is a petty misdemeanor.
(b) A person commits an offense if, knowing that he or she is not
licensed or privileged to do so, he or she enters or remains in any
place as to which notice against trespass is given by:
(1) Actual communication to the actor; or
(2) Posting in a manner prescribed by law or reasonably likely to
come to the attention of intruders; or
(3) Fencing or other enclosure manifestly designed to exclude
intruders.
(c) An offense under this section constitutes a petty misdemeanor if
the offender defies an order to leave personally communicated to him or
her by the owner of the premises or other authorized person. Otherwise
it is a violation.
Sec.11.412 Theft.
A person who, without permission of the owner, shall take, shoplift,
possess or exercise unlawful control over movable property not his or
her own or under his or her control with the purpose to deprive the
owner thereof or who unlawfully transfers immovable property of another
or any interest therein with the purpose to benefit himself or herself
or another not entitled thereto shall be guilty of theft, a misdemeanor.
Sec.11.413 Receiving stolen property.
A person is guilty of receiving stolen property, a misdemeanor, if
he or she purposely receives, retains, or disposes of movable property
of another knowing that it has been stolen, or believing that it has
probably been stolen, unless the property is received, retained, or
disposed with purpose to restore it to the owner. Receiving means
acquiring possession, control or title, or lending on the security of
the property.
Sec.11.414 Embezzlement.
A person who shall, having lawful custody of property not his or her
own, appropriate the same to his or her own use, with intent to deprive
the owner thereof, shall be guilty of embezzlement, a misdemeanor.
Sec.11.415 Fraud.
A person who shall by willful misrepresentation or deceit, or by
false interpreting, or by the use of false weights or measures obtain
any money or other property, shall be guilty of fraud, a misdemeanor.
Sec.11.416 Forgery.
(a) A person is guilty of forgery, a misdemeanor, if, with purpose
to defraud or injure anyone, or with knowledge that he or she is
facilitating fraud or injury to be perpetrated by anyone, he or she:
[[Page 32]]
(1) Alters, makes, completes, authenticates, issues or transfers any
writing of another without his or her authority; or
(2) Utters any writing which he or she knows to be forged in a
manner above specified.
(b) ``Writing'' includes printing or any other method of recording
information, money, coins, tokens, stamps, seals, credit cards, badges,
trademarks, and other symbols of value, right, privilege, or
identification.
Sec.11.417 Extortion.
A person who shall willfully, by making false charges against
another person or by any other means whatsoever, extort or attempt to
extort any moneys, goods, property, or anything else of any value, shall
be guilty of extortion, a misdemeanor.
Sec.11.418 Misbranding.
A person who shall knowingly and willfully misbrand or alter any
brand or mark on any livestock of another person, shall be guilty of a
misdemeanor.
Sec.11.419 Unauthorized use of automobiles and other vehicles.
A person commits a misdemeanor if he or she operates another
person's automobile, airplane, motorcycle, motorboat, or other motor-
propelled vehicle without consent of the owner. It is an affirmative
defense to prosecution under this section that the actor reasonably
believed that the owner would have consented to the operation had he or
she known of it.
Sec.11.420 Tampering with records.
A person commits a misdemeanor if, knowing that he or she has no
privilege to do so, he or she falsifies, destroys, removes or conceals
any writing or record, with purpose to deceive or injure anyone or to
conceal any wrongdoing.
Sec.11.421 Bad checks.
(a) A person who issues or passes a check or similar sight order for
the payment of money, knowing that it will not be honored by the drawee,
commits a misdemeanor.
(b) For the purposes of this section, an issuer is presumed to know
that the check or order would not be paid, if:
(1) The issuer had no account with the drawee at the time the check
or order was issued; or
(2) Payment was refused by the drawee for lack of funds, upon
presentation within 30 days after issue, and the issuer failed to make
good within 10 days after receiving notice of that refusal.
Sec.11.422 Unauthorized use of credit cards.
(a) A person commits a misdemeanor if he or she uses a credit card
for the purpose of obtaining property or services with knowledge that:
(1) The card is stolen or forged; or
(2) The card has been revoked or cancelled; or
(3) For any other reason his or her use of the card is unauthorized
by the issuer.
(b) Credit card means a writing or other evidence of an undertaking
to pay for property or services delivered or rendered to or upon the
order of a designated person or bearer.
Sec.11.423 Defrauding secured creditors.
A person commits a misdemeanor if he or she destroys, conceals,
encumbers, transfers or otherwise deals with property subject to a
security interest with purpose to hinder that interest.
Sec.11.424 Neglect of children.
(a) A parent, guardian, or other person supervising the welfare of a
child under 18 commits a misdemeanor if he or she knowingly endangers
the child's welfare by violating a duty of care, protection or support.
(b) A parent, guardian, or other person supervising the welfare of a
child under 18 commits a violation if he or she neglects or refuses to
send the child to school.
Sec.11.425 Persistent non-support.
A person commits a misdemeanor if he or she persistently fails to
provide support which he or she can provide and which he or she knows he
or she is legally obliged to provide to a spouse, child or other
dependent.
[[Page 33]]
Sec.11.426 Bribery.
(a) A person is guilty of bribery, a misdemeanor, if he or she
offers, confers or agrees to confer upon another, or solicits, accepts
or agrees to accept from another:
(1) Any pecuniary benefit as consideration for the recipient's
decision, opinion, recommendation, vote or other exercise of discretion
as a public servant, party official or voter; or
(2) Any benefit as consideration for the recipient's decision, vote,
recommendation or other exercise of official discretion in a judicial or
administrative proceeding; or
(3) Any benefit as consideration for a violation of a known legal
duty as a public servant or party official.
(b) It is no defense to prosecution under this section that a person
whom the actor sought to influence was not qualified to act in the
desired way, whether because he or she had not yet assumed office, or
lacked jurisdiction, or for any other reason.
Sec.11.427 Threats and other improper influence in official and
political matters.
(a) A person commits a misdemeanor if he or she:
(1) Threatens unlawful harm to any person with purpose to influence
his or her decision, vote or other exercise of discretion as a public
servant, party official or voter; or
(2) Threatens harm to any public servant with purpose to influence
his decision, opinion, recommendation, vote or other exercise of
discretion in a judicial or administrative proceeding; or
(3) Threatens harm to any public servant with purpose to influence
his decision, opinion, recommendation, vote or other exercise of
discretion in a judicial or administrative proceeding; or
(b) It is no defense to prosecution under this section that a person
whom the actor sought to influence was not qualified to act in the
desired way, whether because he or she had not yet assumed office, or
lacked jurisdiction, or for any other reason.
Sec.11.428 Retaliation for past official action.
A person commits a misdemeanor if he or she harms another by any
unlawful act in retaliation for anything lawfully done by the latter in
the capacity of public servant.
Sec.11.429 Perjury.
A person is guilty of perjury, a misdemeanor, if in any official
proceeding he or she makes a false statement under oath or equivalent
affirmation, or swears or affirms the truth of a statement previously
made, when the statement is material and he or she does not believe it
to be true.
(a) No person shall be guilty of an offense under this section if he
or she retracted the falsification in the course of the proceeding in
which it was made before it became manifest that the falsification was
or would be exposed and before the falsification substantially affected
the proceeding.
(b) No person shall be convicted of an offense under this section
where proof of falsity rests solely upon contradiction by testimony of a
single person other than the defendant.
Sec.11.430 False alarms.
A person who knowingly causes a false alarm of fire or other
emergency to be transmitted to, or within any organization, official or
volunteer, for dealing with emergencies involving danger to life or
property commits a misdemeanor.
Sec.11.431 False reports.
(a) A person who knowingly gives false information to any law
enforcement officer with the purpose to implicate another commits a
misdemeanor.
(b) A person commits a petty misdemeanor if he or she:
(1) Reports to law enforcement authorities an offense or other
incident within their concern knowing that it did not occur; or
(2) Pretends to furnish such authorities with information relating
to an offense or incident when he or she knows he or she has no
information relating to such offense or incident.
[[Page 34]]
Sec.11.432 Impersonating a public servant.
A person commits a misdemeanor if he or she falsely pretends to hold
a position in the public service with purpose to induce another to
submit to such pretended official authority or otherwise to act in
reliance upon that pretense to his or her prejudice.
Sec.11.433 Disobedience to lawful order of court.
A person who willfully disobeys any order, subpoena, summons,
warrant or command duly issued, made or given by any Court of Indian
Offenses or any officer thereof is guilty of a misdemeanor.
Sec.11.434 Resisting arrest.
A person commits a misdemeanor if, for the purpose of preventing a
public servant from effecting a lawful arrest or discharging any other
duty, he or she creates a substantial risk of bodily injury to the
public servant or anyone else, or employs means justifying or requiring
substantial force to overcome the resistance.
Sec.11.435 Obstructing justice.
A person commits a misdemeanor if, with purpose to hinder the
apprehension, prosecution, conviction or punishment of another for a
crime, he or she harbors or conceals the other, provides a weapon,
transportation, disguise or other means of escape, warns the other of
impending discovery, or volunteers false information to a law
enforcement officer.
Sec.11.436 Escape.
A person is guilty of the offense of escape, a misdemeanor, if he or
she unlawfully removes himself or herself from official detention or
fails to return to official detention following temporary leave granted
for a specific purpose or limited period.
Sec.11.437 Bail jumping.
A person set at liberty by court order, with or without bail, upon
condition that he or she will subsequently appear at a specified time or
place, commits a misdemeanor if, without lawful excuse, he or she fails
to appear at that time and place.
Sec.11.438 Flight to avoid prosecution or judicial process.
A person who shall absent himself or herself from the Indian country
over which the Court of Indian Offenses exercises jurisdiction for the
purpose of avoiding arrest, prosecution or other judicial process shall
be guilty of a misdemeanor.
Sec.11.439 Witness tampering.
(a) A person commits a misdemeanor if, believing that an official
proceeding or investigation is pending or about to be instituted, he or
she attempts to induce or otherwise cause a witness or informant to:
(1) Testify or inform falsely; or
(2) Withhold any testimony, information, document or thing; or
(3) Elude legal process summoning him or her to supply evidence; or
(4) Absent himself or herself from any proceeding or investigation
to which he or she has been legally summoned.
(b) A person commits a misdemeanor if he or she harms another by any
unlawful act in retaliation for anything lawfully done in the capacity
of witness or informant.
Sec.11.440 Tampering with or fabricating physical evidence.
A person commits a misdemeanor if, believing that an official
proceeding or investigation is pending or about to be instituted, he or
she:
(a) Alters, destroys, conceals, or removes any record, document or
thing with purpose to impair its verity or availability in such
proceeding or investigation; or
(b) Makes, presents or uses any record, document or thing knowing it
to be false and with the purpose to mislead a public servant who is or
may be engaged in such proceeding or investigation.
Sec.11.441 Disorderly conduct.
(a) A person is guilty of disorderly conduct if, with purpose to
cause public inconvenience, annoyance or alarm or recklessly creating a
risk thereof, he or she:
[[Page 35]]
(1) Engages in fighting or threatening, or in violent or tumultuous
behavior;
(2) Makes unreasonable noise or offensively coarse utterance,
gesture or display, or addresses abusive language to any person present;
or
(3) Creates a hazardous or physically offensive condition by any act
which serves no legitimate purpose of the actor.
(b) Public means affecting or likely to affect persons in a place to
which the public has access; among the places included are highways,
schools, prisons, apartments, places of business or amusement, or any
neighborhood.
(c) An offense under this section is a petty misdemeanor if the
actor's purpose is to cause substantial harm or serious inconvenience,
or if he or she persists in disorderly conduct after reasonable warning
or request to desist. Otherwise, disorderly conduct is a violation.
Sec.11.442 Riot; failure to disperse.
(a) A person is guilty of riot, a misdemeanor, if he or she
participates with two or more others in a course of disorderly conduct:
(1) With purpose to commit or facilitate the commission of a felony
or misdemeanor; or
(2) With purpose to prevent or coerce official action; or
(3) When the actor or any other participant to the knowledge of the
actor uses or plans to use a firearm or other deadly weapon.
(b) Where three or more persons are participating in a course of
disorderly conduct likely to cause substantial harm or serious
inconvenience, a law enforcement officer may order the participants and
others in the immediate vicinity to disperse. A person who refuses or
knowingly fails to obey such an order commits a misdemeanor.
Sec.11.443 Harassment.
A person commits a petty misdemeanor if, with purpose to harass
another, he or she:
(a) Makes a telephone call without purpose or legitimate
communication; or
(b) Insults, taunts or challenges another in a manner likely to
provoke violent or disorderly response; or
(c) Makes repeated communications anonymously or at extremely
inconvenient hours, or in offensively coarse language; or
(d) Subjects another to an offensive touching; or
(e) Engages in any other course of alarming conduct serving no
legitimate purpose.
Sec.11.444 Carrying concealed weapons.
A person who goes about in public places armed with a dangerous
weapon concealed upon his or her person is guilty of a misdemeanor
unless he or she has a permit to do so signed by a magistrate of the
Court of Indian Offenses.
Sec.11.445 Driving violations.
(a) A person who shall operate any vehicle in a manner dangerous to
the public safety is guilty of reckless driving, a petty misdemeanor,
unless it is committed while under the influence of alcohol, in which
case it is a misdemeanor.
(b) A person who shall drive, operate or be in physical control of
any motor vehicle when his or her alcohol concentration is 0.10 or more
shall be guilty of driving while intoxicated, a misdemeanor.
(c) Any person who drives, operates, or is in physical control of a
motor vehicle within the Indian country under the jurisdiction of a
Court of Indian Offenses consents to a chemical test of his or her
blood, breath, or urine for the purpose of determining the presence of
alcohol, to be administered at the direction of a law enforcement
officer. The test may be required when the officer has reasonable cause
to believe that a person is driving while intoxicated, and the person
has either been lawfully placed under arrest for a violation of this
section, or has been involved in a motor vehicle accident or collision
resulting in property damage, personal injury, or death.
(d) In the absence of an applicable tribal traffic code, the
provisions of state traffic laws applicable in the state where a Court
of Indian Offenses is located shall apply to the operation
[[Page 36]]
of motor vehicles within the Indian country under the jurisdiction of
the Court of Indian Offenses with the exception that any person found
guilty of violating such laws shall, in lieu of the penalties provided
under state law, be sentenced according to the standards found in Sec.
11.450 depending on the nature of the traffic code violation, and may be
deprived of the right to operate any motor vehicle for a period not to
exceed 6 months.
Sec.11.446 Cruelty to animals.
A person commits a misdemeanor if he or she purposely or recklessly:
(a) Subjects any animal in his or her custody to cruel neglect; or
(b) Subjects any animal to cruel mistreatment; or
(c) Kills or injures any animal belonging to another without legal
privilege or consent of the owner.
(d) Causes one animal to fight with another.
Sec.11.447 Maintaining a public nuisance.
A person who permits his or her property to fall into such condition
as to injure or endanger the safety, health, comfort, or property of his
or her neighbors, is guilty of a violation.
Sec.11.448 Abuse of office.
A person acting or purporting to act in an official capacity or
taking advantage of such actual or purported capacity commits a
misdemeanor if, knowing that his or her conduct is illegal, he or she:
(a) Subjects another to arrest, detention, search, seizure,
mistreatment, dispossession, assessment, lien or other infringement of
personal or property rights; or
(b) Denies or impedes another in the exercise or enjoyment of any
right, privilege, power or immunity.
Sec.11.449 Violation of an approved tribal ordinance.
A person who violates the terms of any tribal ordinance duly enacted
by the governing body of the tribe occupying the Indian country under
the jurisdiction of the Court of Indian Offenses and approved by the
Assistant Secretary--Indian Affairs or his or her designee, is guilty of
an offense and upon conviction thereof shall be sentenced as provided in
the ordinance.
Sec.11.450 Maximum fines and sentences of imprisonment.
A person convicted of an offense under the regulations in this part
may be sentenced as follows:
------------------------------------------------------------------------
Type of offense Maximum allowable sentence
------------------------------------------------------------------------
(a) Misdemeanor.................. Up to 1 year in prison, or a fine of
up to $5,000, or both.
(b) Petty misdemeanor............ Up to 6 months in prison, or a fine
of up to $2,500, or both.
(c) Violation.................... Up to 3 months in prison, or a fine
of up to $1,000, or both.
------------------------------------------------------------------------
[73 FR 39861, July 11, 2008]
Sec.11.451 Abuse of psychotoxic chemical solvents.
(a) It is unlawful to:
(1) Intentionally smell or inhale the fumes of any psychotoxic
chemical solvent or possess, purchase, or attempt to possess or purchase
any psychotoxic chemical solvent, for the purpose of causing
intoxication, inebriation, excitement, stupefaction, or the dulling of
the brain or nervous system; or
(2) Sell, give away, dispense, or distribute, or offer to sell, give
away, dispense, or distribute, any psychotoxic chemical solvent knowing
or believing that the purchaser or another person intends to use the
solvent in violation of this section.
(b) This section does not apply to inhalation of anesthesia for
medical or dental purposes.
(c) As used in this section, ``psychotoxic chemical solvent'' means
any glue, gasoline, paint, hair spray, Lysol, or other substance
containing one or more of the following chemical compounds:
(1) Acetone and acetate;
(2) Benzene;
(3) Butyl-alcohol;
(4) Methyl ethyl;
(6) Peptone;
(7) Pentachlorophenol;
(8) Petroleum ether; or
(9) Any other chemical substance the inhalation of whose fumes or
vapors can cause intoxication, inebriation, excitement, stupefaction, or
the dulling of the brain or nervous system.
[[Page 37]]
(d) The statement listing the contents of a substance packaged in a
container by the manufacturer or producer thereof is rebuttable proof of
the contents of the substance without further expert testimony if it
reasonably appears that the substance in the container is the same
substance placed therein by the manufacturer or producer.
(e) Abuse of psychotoxic chemical solvents, as defined in this
section, is punishable as a petty misdemeanor, and the court may order
any person using psychotoxic chemical solvents as described in paragraph
(a) of this section to be committed to a facility for treatment for up
to 6 months.
(f) Psychotoxic chemical solvents kept or used in violation of this
section are declared contraband. Upon proof of a violation, these
solvents must be forfeited to the Federal government by order of the
court, following public notice and an opportunity for any person
claiming an interest in the solvents to be heard.
[73 FR 39861, July 11, 2008]
Sec.11.452 Possession of a controlled substance.
(a) It is unlawful for a person to knowingly or intentionally
possess any controlled substance listed in 21 CFR Part 1308, as amended,
unless:
(1) The Controlled Substances Act or Drug Enforcement Agency
regulations specifically authorizes possession of the substance;
(2) The substance or preparation is excluded or exempted by 21 CFR
1308.21 through 1308.35, as amended; or
(3) The provisions of 42 U.S.C. 1996a (regarding traditional Indian
religious use of peyote) apply.
(b) Violations of paragraph (a) of this section are punishable as a
misdemeanor.
(c) Any controlled substance involved in violation of this section
is declared to be contraband. Upon proof of a violation of this section,
the controlled substance must be forfeited to the Federal Government by
order of the court, after public notice and an opportunity for any
person claiming an interest in the substance to be heard.
(d) Any personal property used to transport, conceal, manufacture,
cultivate, or distribute a controlled substance in violation of this
section is subject to forfeiture to the Federal Government by order of
the court upon proof of this use, following public notice and
opportunity for any person claiming an interest in the property to be
heard.
[73 FR 39861, July 11, 2008]
Sec.11.453 Prostitution or solicitation.
A person who commits prostitution or solicitation or who knowingly
keeps, maintains, rents, or leases, any house, room, tent, or other
place for the purpose of prostitution is guilty of a misdemeanor.
[73 FR 39861, July 11, 2008]
Sec.11.454 Domestic violence.
(a) A person who commits domestic violence by inflicting physical
harm, bodily injury, or sexual assault, or inflicting the fear of
imminent physical harm, bodily injury, or sexual assault on a family
member, is guilty of a misdemeanor.
(b) For purposes of this section, a family member is any of the
following:
(1) A spouse;
(2) A former spouse;
(3) A person related by blood;
(4) A person related by existing or prior marriage;
(5) A person who resides or resided with the defendant;
(6) A person with whom the defendant has a child in common; or
(7) A person with whom the defendant is or was in a dating or
intimate relationship.
[73 FR 39861, July 11, 2008]
Subpart E_Civil Actions
Sec.11.500 Law applicable to civil actions.
(a) In all civil cases, the Magistrate of a Court of Indian Offenses
shall have discretion to apply:
(1) Any laws of the United States that may be applicable;
(2) Any authorized regulations contained in the Code of Federal
Regulations; and
(3) Any laws or customs of the tribe occupying the area of Indian
country over which the court has jurisdiction
[[Page 38]]
that are not prohibited by Federal laws.
(b) The delineation in paragraph (a) of this section does not
establish a hierarchy relative to the applicability of specific law in
specific cases.
(c) Where any doubt arises as to the customs of the tribe, the court
may request the advice of counselors familiar with those customs.
(d) Any matters that are not covered by the laws or customs of the
tribe, or by applicable Federal laws and regulations, may be decided by
the Court of Indian Offenses according to the laws of the State in which
the matter in dispute lies.
[73 FR 39862, July 11, 2008]
Sec.11.501 Judgments in civil actions.
(a) In all civil cases, judgment shall consist of an order of the
court awarding damages to be paid to the injured party, or directing the
surrender of certain property to the injured party, or the performance
of some other act for the benefit of the injured party, including
injunctive relief and declaratory judgments.
(b) Where the injury inflicted was the result of carelessness of the
defendant, the judgment shall fairly compensate the injured party for
the loss he or she has suffered.
(c) Where the injury was deliberately inflicted, the judgment shall
impose an additional penalty upon the defendant, which additional
penalty may run either in favor of the injured party or in favor of the
tribe.
(d) Where the injury was inflicted as a result of accident, or where
both the complainant and the defendant were at fault, the judgment shall
compensate the injured party for a reasonable part of the loss he or she
has suffered.
(e) No judgment shall be given on any suit unless the defendant has
actually received notice of such suit and ample opportunity to appear in
court in his or her defense.
Sec.11.502 Costs in civil actions.
(a) The court may assess the accruing costs of the case against the
party or parties against whom judgment is given. Such costs shall
consist of the expenses of voluntary witnesses for which either party
may be responsible and the fees of jurors in those cases where a jury
trial is had, and any further incidental expenses connected with the
procedure before the court as the court may direct.
(b) In all civil suits the complainant may be required to deposit
with the clerk of the court a fee or other security in a reasonable
amount to cover costs and disbursements in the case.
Sec.11.503 Applicable civil procedure.
The procedure to be followed in civil cases shall be the Federal
Rules of Civil Procedure applicable to United States district courts,
except insofar as such procedures are superseded by order of the Court
of Indian Offenses or by the existence of inconsistent tribal rules of
procedure.
Sec.11.504 Applicable rules of evidence.
Courts of Indian Offenses shall be bound by the Federal Rules of
Evidence, except insofar as such rules are superseded by order of the
Court of Indian Offenses, or by the existence of inconsistent tribal
rules of evidence.
Subpart F_Domestic Relations
Sec.11.600 Marriages.
(a) A magistrate of the Court of Indian Offenses shall have the
authority to perform marriages.
(b) A valid marriage shall be constituted by:
(1) The issuance of a marriage license by the Court of Indian
Offenses and by execution of a consent to marriage by both parties to
the marriage and recorded with the clerk of the court; or
(2) The recording of a tribal custom marriage with the Court of
Indian Offenses within 30 days of the tribal custom marriage ceremony by
the signing by both parties of a marriage register maintained by the
clerk of the court.
(c) A marriage license application shall include the following
information:
(1) Name, sex, occupation, address, social security number, and date
and place of birth of each party to the proposed marriage;
(2) If either party was previously married, his or her name, and the
date, place, and court in which the marriage was dissolved or declared
invalid or the
[[Page 39]]
date and place of death of the former spouse;
(3) Name and address of the parents or guardian of each party;
(4) Whether the parties are related to each other and, if so, their
relationship; and
(5) The name and date of birth of any child of which both parties
are parents, born before the making of the application, unless their
parental rights and the parent and child relationship with respect to
the child have been terminated.
(6) A certificate of the results of any medical examination required
by either applicable tribal ordinances, or the laws of the State in
which the Indian country under the jurisdiction of the Court of Indian
Offenses is located.
Sec.11.601 Marriage licenses.
A marriage license shall be issued by the clerk of the court in the
absence of any showing that the proposed marriage would be invalid under
any provision of this part or tribal custom, and upon written
application of an unmarried male and unmarried female, both of whom must
be eighteen (18) years or older. If either party to the marriage is
under the age of eighteen (18), that party must have the written consent
of parent or his or her legal guardian.
Sec.11.602 Solemnization.
(a) In the event a judge, clergyman, tribal official or anyone
authorized to do so solemnizes a marriage, he or she shall file with the
clerk of the court certification thereof within thirty (30) days of the
solemnization.
(b) Upon receipt of the marriage certificate, the clerk of the court
shall register the marriage.
Sec.11.603 Invalid or prohibited marriages.
(a) The following marriages are prohibited:
(1) A marriage entered into prior to the dissolution of an earlier
marriage of one of the parties;
(2) A marriage between an ancestor and a descendant, or between a
brother and a sister, whether the relationship is by the half or the
whole blood;
(3) A marriage between an aunt and a nephew or between an uncle and
a niece, whether the relationship is by the half or the whole blood,
except as to marriages permitted by established tribal custom;
(4) A marriage prohibited by custom and usage of the tribe.
(b) Children born of a prohibited marriage are legitimate.
Sec.11.604 Declaration of invalidity.
(a) The Court of Indian Offenses shall enter a decree declaring the
invalidity of a marriage entered into under the following circumstances:
(1) A party lacked capacity to consent to the marriage, either
because of mental incapacity or infirmity or by the influence of
alcohol, drugs, or other incapacitating substances; or
(2) A party was induced to enter into a marriage by fraud or duress;
or
(3) A party lacks the physical capacity to consummate the marriage
by sexual intercourse and at the time the marriage was entered into, the
other party did not know of the incapacity; or
(4) The marriage is prohibited under Sec.11.603.
(b) A declaration of invalidity may be sought by either party to the
marriage or by the legal representative of the party who lacked capacity
to consent.
Sec.11.605 Dissolution.
(a) The Court of Indian Offenses shall enter a decree of dissolution
of marriage if:
(1) The court finds that the marriage is irretrievably broken, if
the finding is supported by evidence that (i) the parties have lived
separate and apart for a period of more than 180 days next preceding the
commencement of the proceeding, or (ii) there is serious marital discord
adversely affecting the attitude of one or both of the parties towards
the marriage;
(2) The court finds that either party, at the time the action was
commenced, was domiciled within the Indian country under the
jurisdiction of the court, and that the domicile has been maintained for
90 days next preceding the making of the findings; and
(3) To the extent it has jurisdiction to do so, the court has
considered, approved, or provided for child custody,
[[Page 40]]
the support of any child entitled to support, the maintenance of either
spouse, and the disposition of property; or has provided for a separate
later hearing to complete these matters.
(b) If a party requests a decree of legal separation rather than a
decree of dissolution of marriage, the Court of Indian Offenses shall
grant the decree in that form unless the other party objects.
Sec.11.606 Dissolution proceedings.
(a) Either or both parties to the marriage may initiate dissolution
proceedings.
(b) If a proceeding is commenced by one of the parties, the other
party shall be served in the manner provided by the applicable rule of
civil procedure and within thirty days after the date of service may
file a verified response.
(c) The verified petition in a proceeding for dissolution of
marriage or legal separation shall allege that the marriage is
irretrievably broken and shall set forth:
(1) The age, occupation, and length of residence within the Indian
country under the jurisdiction of the court of each party;
(2) The date of the marriage and the place at which it was
registered;
(3) That jurisdictional requirements are met and that the marriage
is irretrievably broken in that either (i) the parties have lived
separate and apart for a period of more than 180 days next preceding the
commencement of the proceeding or (ii) there is a serious marital
discord adversely affecting the attitude of one or both of the parties
toward the marriage, and there is no reasonable prospect of
reconciliation;
(4) The names, age, and addresses of all living children of the
marriage and whether the wife is pregnant;
(5) Any arrangement as to support, custody, and visitation of the
children and maintenance of a spouse; and
(6) The relief sought.
Sec.11.607 Temporary orders and temporary injunctions.
(a) In a proceeding for dissolution of marriage or for legal
separation, either party may move for temporary maintenance or temporary
support of a child of the marriage entitled to support. The motion shall
be accompanied by an affidavit setting forth the factual basis for the
motion and the amounts requested.
(b) As a part of a motion for temporary maintenance or support or by
an independent motion accompanied by an affidavit, either party may
request the Court of Indian Offenses to issue a temporary injunction for
any of the following relief:
(1) Restraining any person from transferring, encumbering,
concealing, or otherwise disposing of any property except in the usual
course of business or for the necessities of life, and, if so
restrained, requiring him or her to notify the moving party of any
proposed extraordinary expenditures made after the order is issued;
(2) Enjoining a party from molesting or disturbing the peace of the
other party or of any child;
(3) Excluding a party from the family home or from the home of the
other party upon a showing that physical or emotional harm would
otherwise result;
(4) Enjoining a party from removing a child from the jurisdiction of
the court; and
(5) Providing other injunctive relief proper in the circumstances.
(c) The court may issue a temporary restraining order without
requiring notice to the other party only if it finds on the basis of the
moving affidavit or other evidence that irreparable injury will result
to the moving party if no order is issued until the time for responding
has elapsed.
(d) A response may be filed within 20 days after service of notice
of a motion or at the time specified in the temporary restraining order.
(e) On the basis of the showing made, the Court of Indian Offenses
may issue a temporary injunction and an order for temporary maintenance
or support in amounts and on terms just and proper under the
circumstances.
(f) A temporary order or temporary injunction:
(1) Does not prejudice the rights of the parties or the child which
are to be adjudicated at subsequent hearings in a proceeding;
[[Page 41]]
(2) May be revoked or modified before the final decree as deemed
necessary by the court;
(3) Terminates when the final decree is entered or when the petition
for dissolution or legal separation is voluntarily dismissed.
Sec.11.608 Final decree; disposition of property; maintenance;
child support; custody.
(a) A decree of dissolution of marriage or of legal separation is
final when entered, subject to the right of appeal.
(b) The Court of Indian Offenses shall have the power to impose
judgment as follows in dissolution or separation proceedings:
(1) Apportion or assign between the parties the non-trust property
and non-trust assets belonging to either or both and whenever acquired,
and whether the title thereto is in the name of the husband or wife or
both;
(2) Grant a maintenance order for either spouse in amounts and for
periods of time the court deems just;
(3) Order either or both parents owing a duty of support to a child
to pay an amount reasonable or necessary for his or her support, without
regard to marital misconduct, after considering all relevant factors. In
addition:
(i) When a support order is issued by a Court of Indian Offenses,
the order may provide that a portion of an absent parent's wages be
withheld to comply with the order on the earliest of the following
dates: When an amount equal to one month's support becomes overdue; when
the absent parent requests withholding; or at such time as the Court of
Indian Offenses selects. The amount to be withheld may include an amount
to be applied toward liquidation of any overdue support.
(ii) If the Court of Indian Offenses finds that an absent parent who
has been ordered to pay child support is now residing within the
jurisdiction of another Court of Indian Offenses, an Indian tribal
court, or a state court, it shall petition such court for reciprocal
enforcement and provide it with a copy of the support order.
(iii) If the Court of Indian Offenses receives a petition from
another Court of Indian Offenses, an Indian tribal court or a state
court, it shall take necessary steps to determine paternity, establish
an order for child support, register a foreign child support order or
enforce orders as requested in the petition.
(iv) The Court of Indian Offenses shall assist a state in the
enforcement and collection of past-due support from Federal tax refunds
of absent parents living within the Indian country over which the court
has jurisdiction.
(v) Any person or agency who has provided support or assistance to a
child under 18 years of age shall be a proper person to bring an action
under this section and to recover judgment in an amount equal to such
past-paid support or assistance, including costs of bringing the action.
(4) Make child custody determinations in accordance with the best
interest of the child.
(5) Restore the maiden name of the wife.
Sec.11.609 Determination of paternity and support.
The Court of Indian Offenses shall have jurisdiction of all suits
brought to determine the paternity of a child and to obtain a judgment
for the support of the child. A judgment of the court establishing the
identity of the father of the child shall be conclusive of that fact in
all subsequent determinations of inheritance by the Court of Indian
Offenses or by the Department of the Interior.
Sec.11.610 Appointment of guardians.
The court shall have the jurisdiction to appoint or remove legal
guardians for minors and for persons who are incapable of managing their
own affairs under terms and conditions to be prescribed by the court.
Sec.11.611 Change of name.
The Court of Indian Offenses shall have the authority to change the
name of any person upon petition of such person or upon the petition of
the parents of any minor, if at least one parent is Indian. Any order
issued by the court for a change of name shall be kept as a permanent
record and copies shall be filed with the agency superintendent, the
governing body of the
[[Page 42]]
tribe occupying the Indian country under the jurisdiction of the court,
and any appropriate agency of the State in which the court is located.
Subpart G_Probate Proceedings
Sec.11.700 Probate jurisdiction.
The Court of Indian Offenses shall have jurisdiction to administer
in probate the estate of a deceased Indian who, at the time of his or
her death, was domiciled or owned real or personal property situated
within the Indian country under the jurisdiction of the court to the
extent that such estate consists of property which does not come within
the jurisdiction of the Secretary of the Interior.
Sec.11.701 Duty to present will for probate.
Any custodian of a will shall deliver the same to the Court of
Indian Offenses within 30 days after receipt of information that the
maker thereof is deceased. Any custodian who fails to do so shall be
liable for damages sustained by any person injured thereby.
Sec.11.702 Proving and admitting will.
(a) Upon initiating the probate of an estate, the will of the
decedent shall be filed with the court. Such will may be proven and
admitted to probate by filing an affidavit of an attesting witness which
identifies such will as being the will which the decedent executed and
declared to be his or her last will. If the evidence of none of the
attesting witnesses is available, the court may allow proof of the will
by testimony that the signature of the testator is genuine.
(b) At any time within 90 days after a will has been admitted to
probate, any person having an interest in the decedent's estate may
contest the validity of such will. In the event of such contest, a
hearing shall be held to determine the validity of such will.
(c) Upon considering all relevant information concerning the will,
the Court of Indian Offenses shall enter an order affirming the
admission of such will to probate, or rejecting such will and ordering
that the probate of the decedent's estate proceed as if the decedent had
died intestate.
Sec.11.703 Petition and order to probate estate.
(a) Any person having an interest in the administration of an estate
which is subject to the jurisdiction of the court may file a written
petition with the court requesting that such estate be administered in
probate.
(b) The Court of Indian Offenses shall enter an order directing that
the estate be probated upon finding that the decedent was an Indian who,
at the time of his or her death, was domiciled or owned real or personal
property situated within the Indian country under the jurisdiction of
the court other than trust or other restricted property, that the
decedent left an estate subject to the jurisdiction of the court, and
that it is necessary to probate such estate.
Sec.11.704 Appointment and duties of executor or administrator.
(a) Upon ordering the estate to be probated, the court shall appoint
an administrator to administer the estate of the decedent. The person
nominated by the decedent's will, if any, to be the executor of the
estate shall be so appointed, provided such person is willing to serve
in such capacity.
(b) The executor or administrator appointed by the court shall have
the following duties and powers during the administration of the estate
and until discharged by the court:
(1) To send by certified mail true copies of the order to probate
the estate and the will of the decedent admitted to probate by such
order, if any, to each heir, devisee and legatee of the decedent, at
their last known address, to the governing body of the tribe or tribes
occupying the Indian country over which the court has jurisdiction, and
to the agency superintendent;
(2) To preserve and protect the decedent's property within the
estate and the heirs, so far as is possible;
(3) To investigate promptly all claims against the decedent's estate
and determine their validity;
(4) To cause a written inventory of all the decedent's property
within the estate to be prepared promptly with each article or item
being separately set forth and cause such property to be
[[Page 43]]
exhibited to and appraised by an appraiser, and the inventory and
appraisal thereof to be filed with the court;
(5) To give promptly all persons entitled thereto such notice as is
required under these proceedings;
(6) To account for all property within the estate which may come
into his or her possession or control, and to maintain accurate records
of all income received and disbursements made during the course of the
administration.
Sec.11.705 Removal of executor or administrator.
The Court of Indian Offenses may order the executor or administrator
to show cause why he or she should not be discharged, and may discharge
the executor or administrator for failure, neglect or improper
performance of his or her duties.
Sec.11.706 Appointment and duties of appraiser.
(a) Upon ordering an estate to be probated, the court shall appoint
a disinterested and competent person as an appraiser to appraise all of
the decedent's real and personal property within the estate.
(b) It shall be the duty of the appraiser to appraise separately the
true cash value of each article or item of property within the estate,
including debts due the decedent, and to indicate the appraised value of
each such article or item of property set forth in the inventory of the
estate and to certify such appraisal by subscribing his or her name to
the inventory and appraisal.
Sec.11.707 Claims against estate.
(a) Creditors of the estate or those having a claim against the
decedent shall file their claim with the clerk of the court or with the
executor or administrator within 60 days from official notice of the
appointment of the executor or administrator published locally in the
press or posting of signs at the tribal and agency offices, giving
appropriate notice for the filing of claims.
(b) The executor or administrator shall examine all claims within 90
days of his or her appointment and notify the claimant whether his or
her claim is accepted or rejected. If the claimant is notified of
rejection, he or she may request a hearing before the court by filing a
petition requesting such hearing within 30 days following the notice of
rejection.
Sec.11.708 Sale of property.
After filing the inventory and appraisal, the executor or
administrator may petition the court for authority to sell personal
property of the estate for purposes of paying the expenses of last
illness and burial expenses, expenses of administration, claims, if any,
against the estate, and for the purpose of distribution. If, in the
court's judgment, such sale is in the best interest of the estate, the
court shall order such sale and prescribe the terms upon which the
property shall be sold.
Sec.11.709 Final account.
(a) When the affairs of an estate have been fully administered, the
executor or administrator shall file a final account with the court,
verified by his or her oath. Such final account shall affirmatively set
forth:
(1) That all claims against the estate have been paid, except as
shown, and that the estate has adequate unexpended and unappropriated
funds to fully pay such remaining claims;
(2) The amount of money received and expended by him or her, from
whom received and to whom paid, referring to the vouchers for each of
such payments;
(3) That there is nothing further to be done in the administration
of the estate except as shown in the final account;
(4) The remaining assets of the estate, including unexpended and
unappropriated money, at the time of filing the final account;
(5) The proposed determination of heirs and indicate the names,
ages, addresses and relationship to the decedent of each distributee and
the proposed distributive share and value thereof each heir, devisee or
legatee is to receive; and
(6) A petition that the court set a date for conducting a hearing to
approve the final account, to determine the heirs, devisees and legatees
of the decedent and the distributive share each distributee is to
receive.
[[Page 44]]
Sec.11.710 Determination of the court.
At the time set for hearing upon the final account, the Court of
Indian Offenses shall proceed to examine all evidence relating to the
distribution of the decedent's estate, and consider objections to the
final account which may have been filed by any heir, devisee, legatee,
or other person having an interest in the distribution of the estate.
Upon conclusion of the hearing, the court shall enter an order:
(a) Providing for payment of approved claims;
(b) Determining the decedent's heirs, devisees and legatees,
indicating the names, ages and addresses of each, and the distributive
share of the remaining estate which each distributee is to receive; and
(c) Directing the administrator or executor to distribute such
distributive share to those entitled thereto.
Sec.11.711 Descent and distribution.
(a) The court shall distribute the estate according to the terms of
the will of the decedent which has been admitted to probate.
(b) If the decedent died intestate or having left a will which has
been rejected by the court, the estate shall be distributed as follows:
(1) According to the laws and customs of the tribe if such laws and
customs are proved; or
(2) According to state law absent the existence of tribal laws or
customs.
(c) If no person takes under the above subsections, the estate shall
escheat to the tribe.
Sec.11.712 Closing estate.
(a) Upon finding that the estate has been fully administered and is
in a condition to be closed, the court shall enter an order closing the
estate and discharging the executor or administrator.
(b) If an order closing the estate has not been entered by the end
of nine months following appointment of executor or administrator, the
executor or administrator shall file a written report with the court
stating the reasons why the estate has not been closed.
Sec.11.713 Small estates.
An estate having an appraised value which does not exceed $2,000.00
and which is to be inherited by a surviving spouse and/or minor children
of the deceased may, upon petition of the executor or administrator, and
a hearing before the court, be distributed without administration to
those entitled thereto, upon which the estate shall be closed.
Subpart H_Appellate Proceedings
Sec.11.800 Jurisdiction of appellate division.
The jurisdiction of the appellate division shall extend to all
appeals from final orders and judgments of the trial division, by any
party except the prosecution in a criminal case where there has been a
jury verdict. The appellate division shall review all issues of law
presented to it which arose in the case, but shall not reverse the trial
division decision unless the legal error committed affected a
substantial right of a party or the outcome of the case.
Sec.11.801 Procedure on appeal.
(a) An appeal must be taken within 15 days from the judgment
appealed from by filing a written notice of appeal with the clerk of the
court.
(b) The notice of appeal shall specify the party or parties taking
the appeal, shall designate the judgment, or part thereof appealed from,
and shall contain a short statement of reasons for the appeal. The clerk
of the court shall mail a copy of the notice of appeal to all parties
other than parties taking the appeal.
(c) In civil cases, other parties shall have 15 days to respond to
the notice of appeal.
(d) In civil cases, the appellant may request the trial division to
stay the judgment pending action on the notice of appeal, and, if the
appeal is allowed, either party may request the trial division to grant
or stay an injunction pending appeal. The trial division may condition a
stay or injunction pending appeal on the depositing of cash or bond
sufficient to cover damages
[[Page 45]]
awarded by the court together with interest.
Sec.11.802 Judgment against surety.
Any surety to a bond submits himself or herself to the jurisdiction
of the Court of Indian Offenses, and irrevocably appoints the clerk of
the court as his or her agent upon whom any papers affecting his or her
liability on the bond may be served.
Sec.11.803 Record on appeal.
Within 20 days after a notice of appeal is filed, the clerk of court
shall certify and file with the appellate division the record of the
case.
Sec.11.804 Briefs and memoranda.
(a) Within 30 days after the notice of appeal is filed, the
appellant may file a written brief in support of his or her appeal. An
original and one copy for each appellee shall be filed with the clerk of
court who shall mail one copy by registered or certified mail to each
appellee.
(b) The appellee shall have 30 days after receipt of the appellant's
brief within which to file an answer brief. An original and one copy for
each appellant shall be filed with the clerk of the court who shall mail
one copy, by registered or certified mail, to each appellant.
Sec.11.805 Oral argument.
The appellate division shall assign all criminal cases for oral
argument. The court may in its discretion assign civil cases for oral
argument or may dispose of civil cases on the briefs without argument.
Sec.11.806 Rules of court.
The chief magistrate of the appellate division shall prescribe all
necessary rules concerning the operation of the appellate division and
the time and place of meeting of the court.
Subpart I_Children's Court
Sec.11.900 Definitions.
For purposes of sections pertaining to the children's court:
(a) Abandon means the leaving of a minor without communication or
failing to support a minor for a period of one year or more with no
indication of the parents' willingness to assume a parental role.
(b) Adult means a person eighteen (18) years or older.
(c) Counsel means an attorney admitted to the bar of a state or the
District of Columbia or a lay advocate admitted to practice before the
Court of Indian Offenses.
(d) Custodian means one who has physical custody of a minor and who
is providing food, shelter and supervision to the minor.
(e) Custody means the power to control the day-to-day activities of
the minor.
(f) Delinquent act means an act which, if committed by an adult,
would be designated a crime under this part or under an ordinance of the
tribe.
(g) Detention means the placement of a minor in a physically
restrictive facility.
(h) Guardian means a person other than the minor's parent who is by
law responsible for the care of the minor.
(i) Guardian ad Litem means a person appointed by the court to
represent the minor's interests before the court.
(j) Juvenile offender means a person who commits a delinquent act
prior to his or her eighteenth birthday.
(k) Minor means:
(1) A person under 18 years of age,
(2) A person 18 years of age or older concerning whom proceedings
are commenced in the children's court prior to his or her eighteenth
birthday, or
(3) A person 18 years of age or older who is under the continuing
jurisdiction of the children's court.
(l) Minor-in-need-of-care means a minor who:
(1) Has no parent or guardian available and willing to take care of
him or her;
(2) Is unwilling to allow his or her parent or guardian to take care
of him or her;
(3) Has suffered or is likely to suffer a physical or emotional
injury, inflicted by other than accidental means, which causes or
creates a substantial risk of death, disfigurement, impairment of bodily
functions or emotional health;
[[Page 46]]
(4) Has not been provided with adequate food, clothing, shelter,
medical care, education or supervision by his or her parent, guardian or
custodian;
(5) Has been sexually abused;
(6) Has been committing delinquent acts as a result of parental
pressure, guidance or approval; or,
(7) Has been committing status offenses.
(m) Status offense means an offense which, if committed by an adult,
would not be designated a crime under this part or under an ordinance of
the tribe.
Sec.11.901 The children's court established.
When conducting proceedings under Sec. Sec.11.900-11.1114 of this
part, the Court of Indian Offenses shall be known as the ``Children's
Court''.
Sec.11.902 Non-criminal proceedings.
No adjudication upon the status of any minor in the jurisdiction of
the children's court shall be deemed criminal or be deemed a conviction
of a crime, unless the children's court refers the matter to the Court
of Indian Offenses. Neither the disposition nor evidence given before
the children's court shall be admissible as evidence against the child
in any proceeding in another court.
Sec.11.903 Presenting officer.
(a) The agency superintendent and the chief magistrate of the
children's court shall jointly appoint a presenting officer to carry out
the duties and responsibilities set forth under Sec. Sec.11.900-
11.1114 of this part. The presenting officer's qualifications shall be
the same as the qualifications for the official who acts as prosecutor
for the Court of Indian Offenses. The presenting officer may be the same
person who acts as prosecutor in the Court of Indian Offenses.
(b) The presenting officer shall represent the tribe in all
proceedings under Sec. Sec.11.900-11.1114 of this part.
Sec.11.904 Guardian ad litem.
The children's court, under any proceeding authorized by this part,
shall appoint, for the purposes of the proceeding, a guardian ad litem
for a minor, where the court finds that the minor does not have a
natural or adoptive parent, guardian or custodian willing and able to
exercise effective guardianship, or where the parent, guardian, or
custodian has been accused of abusing or neglecting the minor.
Sec.11.905 Jurisdiction.
The children's court has exclusive, original jurisdiction of the
following proceedings:
(a) Proceedings in which a minor who resides in a community for
which the court is established is alleged to be a juvenile offender,
unless the children's court transfers jurisdiction to the Court of
Indian Offenses pursuant to Sec.11.907 of this part.
(b) Proceedings in which a minor who resides in a community for
which the court is established is alleged to be a minor-in-need-of-care.
Sec.11.906 Rights of parties.
(a) In all hearings and proceedings under Sec. Sec.11.900-11.1114
of this part the following rights will be observed unless modified by
the particular section describing a hearing or proceeding:
(1) Notice of the hearing or proceeding shall be given the minor,
his or her parents, guardian or custodian and their counsel. The notice
shall be delivered by certified mail. The notice shall contain:
(i) The name of the court;
(ii) The title of the proceeding; and
(iii) The date, time and place of the proceeding.
(b) The children's court magistrate shall inform the minor and his
or her parents, guardian or custodian of their right to retain counsel,
and, in juvenile delinquency proceedings, shall tell them: ``You have a
right to have a lawyer or other person represent you at this proceeding.
If you cannot afford to hire counsel, the court will appoint counsel for
you.''
(c) If the children's court magistrate believes there is a potential
conflict of interest between the minor and his or her parents, guardian,
or custodian with respect to legal representation, the court shall
appoint another person to act as counsel for the minor.
[[Page 47]]
(d) The minor need not be a witness against, nor otherwise
incriminate, himself or herself.
(e) The children's court shall give the minor, and the minor's
parent, guardian or custodian the opportunity to introduce evidence, to
be heard on their own behalf and to examine witnesses.
Sec.11.907 Transfer to Court of Indian Offenses.
(a) The presenting officer or the minor may file a petition
requesting the children's court to transfer the minor to the Court of
Indian Offenses if the minor is 14 years of age or older and is alleged
to have committed an act that would have been considered a crime if
committed by an adult.
(b) The children's court shall conduct a hearing to determine
whether jurisdiction of the minor should be transferred to the Court of
Indian Offenses.
(1) The transfer hearing shall be held no more than 30 days after
the petition is filed.
(2) Written notice of the transfer hearing shall be given to the
minor and the minor's parents, guardian or custodian at least 72 hours
prior to the hearing.
(c) All the rights listed in Sec.11.906 shall be afforded the
parties at the transfer hearing.
(d) The following factors shall be considered when determining
whether to transfer jurisdiction of the minor to the Court of Indian
Offenses:
(1) The nature and seriousness of the offense with which the minor
is charged.
(2) The nature and condition of the minor, as evidenced by his or
her age; mental and physical condition; past record of offenses; and
responses to past children's court efforts at rehabilitation.
(e) The children's court may transfer jurisdiction of the minor to
the Court of Indian Offenses if the children's court finds clear and
convincing evidence that both of the following circumstances exist:
(1) There are no reasonable prospects for rehabilitating the minor
through resources available to the children's court; and
(2) The offense allegedly committed by the minor evidences a pattern
of conduct which constitutes a substantial danger to the public.
(f) When a minor is transferred to the Court of Indian Offenses, the
children's court shall issue a written transfer order containing reasons
for its order. The transfer order constitutes a final order for purposes
of appeal.
Sec.11.908 Court records.
(a) A record of all hearings under Sec. Sec.11.900-11.1114 of this
part shall be made and preserved.
(b) All children's court records shall be confidential and shall not
be open to inspection to anyone but the minor, the minor's parents or
guardian, the presenting officer, or others by order of the children's
court.
Sec.11.909 Law enforcement records.
(a) Law enforcement records and files concerning a minor shall be
kept separate from the records and files of adults.
(b) All law enforcement records and files shall be confidential and
shall not be open to inspection to anyone but the minor, the minor's
parents or guardian, the presenting officer, or others by order of the
children's court.
Sec.11.910 Expungement.
When a minor who has been the subject of any proceeding before the
children's court attains his or her twenty-first birthday, the
children's court magistrate shall order the court records and the law
enforcement records pertaining to the minor to be destroyed, except for
adoption records which shall not be destroyed under any circumstances.
Sec.11.911 Appeal.
(a) For purposes of appeal, a record of the proceedings shall be
made available to the minor and parents, guardian or custodian. Costs of
obtaining the record shall be paid by the party seeking the appeal.
(b) Any party to a children's court hearing may appeal a final order
or disposition of the case by filing a written notice of appeal with the
children's court within 30 days of the final order of disposition.
(c) No decree or disposition of a hearing shall be stayed by such
appeal.
[[Page 48]]
(d) All appeals shall be conducted in accordance with this part.
Sec.11.912 Contempt of court.
Any willful disobedience or interference with any order of the
children's court constitutes contempt of court which may be punished in
accordance with this part.
Subpart J_Juvenile Offender Procedure
Sec.11.1000 Complaint.
A complaint must be filed by a law enforcement officer or by the
presenting officer and sworn to by a person who has knowledge of the
facts alleged. The complaint shall be signed by the complaining witness,
and shall contain:
(a) A citation to the specific section(s) of this part which gives
the children's court jurisdiction of the proceedings;
(b) A citation to the section(s) of this part which the minor is
alleged to have violated;
(c) The name, age, and address of the minor who is the subject of
the complaint, if known; and
(d) A plain and concise statement of the facts upon which the
allegations are based, including the date, time, and location at which
the alleged facts occurred.
Sec.11.1001 Warrant.
The children's court may issue a warrant directing that a minor be
taken into custody if the court finds there is probable cause to believe
the minor committed the delinquent act alleged in the complaint.
Sec.11.1002 Custody.
A minor may be taken into custody by a law enforcement officer if:
(a) The officer observes the minor committing a delinquent act; or
(b) The officer has reasonable grounds to believe a delinquent act
has been committed that would be a crime if committed by an adult, and
that the minor has committed the delinquent act; or
(c) A warrant pursuant to Sec.11.1001 has been issued for the
minor.
Sec.11.1003 Law enforcement officer's duties.
A law enforcement officer who takes a minor into custody pursuant to
Sec.11.1002 of this part shall:
(a) Give the following warnings to any minor taken into custody
prior to any questioning:
(1) The minor has a right to remain silent;
(2) Anything the minor says can be used against the minor in court;
(3) The minor has the right to the presence of counsel during
questioning; and
(4) If he or she cannot afford counsel, the court will appoint one.
(b) Release the minor to the minor's parent, guardian, or custodian
and issue a verbal advice or warning as may be appropriate, unless
shelter care or detention is necessary.
(c) If the minor is not released, make immediate and recurring
efforts to notify the minor's parents, guardian, or custodian to inform
them that the minor has been taken into custody and inform them of their
right to be present with the minor until an investigation to determine
the need for shelter care or detention is made by the court.
Sec.11.1004 Detention and shelter care.
(a) A minor alleged to be a juvenile offender may be detained,
pending a court hearing, in the following places:
(1) A foster care facility approved by the tribe;
(2) A detention home approved by the tribe; or
(3) A private family home approved by the tribe.
(b) A minor who is 16 years of age or older may be detained in a
jail facility used for the detention of adults only if:
(1) A facility in paragraph (a) of this section is not available or
would not assure adequate supervision of the minor;
(2) The minor is housed in a separate room from the detained adults;
and
(3) Routine inspection of the room where the minor is housed is
conducted every 30 minutes to assure his or her safety and welfare.
[[Page 49]]
Sec.11.1005 Preliminary inquiry.
(a) If a minor is placed in detention or shelter care, the
children's court shall conduct a preliminary inquiry within 24 hours for
the purpose of determining:
(1) Whether probable cause exist to believe the minor committed the
alleged delinquent act; and
(2) Whether continued detention or shelter care is necessary pending
further proceedings.
(b) If a minor has been released to the parents, guardian or
custodian, the children's court shall conduct a preliminary inquiry
within three days after receipt of the complaint for the sole purpose of
determining whether probable cause exists to believe the minor committed
the alleged delinquent act.
(c) If the minor's parents, guardian or custodian is not present at
the preliminary inquiry, the children's court shall determine what
efforts have been made to notify and to obtain the presence of the
parents, guardian, or custodian. If it appears that further efforts are
likely to produce the parents, guardian or custodian, the children's
court shall recess for no more than 24 hours and direct that continued
efforts be made to obtain the presence of parents, guardian or
custodian.
(d) All the rights listed in Sec.11.906 shall be afforded the
parties in a preliminary inquiry.
(e) The children's court shall hear testimony concerning:
(1) The circumstances that gave rise to the complaint or the taking
of the minor into custody; and
(2) The need for detention or shelter care.
(f) If the children's court finds that probable cause exists to
believe the minor performed the delinquent act, the minor shall be
released to the parents, guardian or custodian, and ordered to appear at
the adjudicatory hearing unless:
(1) The act is serious enough to warrant continued detention or
shelter care;
(2) There is reasonable cause to believe the minor will run away and
be unavailable for further proceedings; or
(3) There is reasonable cause to believe that the minor will commit
a serious act causing damage to person or property.
(g) The children's court may release a minor pursuant to paragraph
(f) of this section to a relative or other responsible adult tribal
member if the parent, guardian, or custodian of the minor consents to
the release. If the minor is ten years of age or older, the minor and
the parents, guardian or custodian must both consent to the release.
(h) Upon a finding that probable cause exists to believe that the
minor has committed the alleged delinquent act and that there is need
for detention or shelter care, the minor's detention or shelter care
shall be continued. Otherwise, the complaint shall be dismissed and the
minor released.
Sec.11.1006 Investigation by the presenting officer.
(a) The presenting officer shall make an investigation following the
preliminary inquiry or the release of the minor to his or her parents,
guardian or custodian to determine whether the interests of the minor
and the public require that further action be taken. Upon the basis of
this investigation, the presenting officer may:
(1) Determine that no further action be taken;
(2) Begin transfer proceedings to the Court of Indian Offenses
pursuant to Sec.11.907 of this part; or
(3) File a petition pursuant to Sec.11.1007 of this part to
initiate further proceedings. The petition shall be filed within 48
hours of the preliminary inquiry if the minor is in detention or shelter
care. If the minor has been previously released to his or her parents,
guardian or custodian, relative or responsible adult, the petition shall
be filed within ten days of the preliminary inquiry.
Sec.11.1007 Petition.
(a) Proceedings under Sec. Sec.11.1000-11.1014 of this part shall
be instituted by a petition filed by the presenting officer on behalf of
the tribe and in the interests of the minor. The petition shall state:
(1) The name, birth date, and residence of the minor;
[[Page 50]]
(2) The names and residences of the minor's parents, guardian or
custodian;
(3) A citation to the specific section(s) of this part which gives
the children's court jurisdiction of the proceedings;
(4) A citation to the section(s) of this part which the minor is
alleged to have violated; and
(5) If the minor is in detention or shelter care, the time the minor
was taken into custody.
Sec.11.1008 Date of hearing.
Upon receipt of the petition, the children's court shall set a date
for the hearing which shall not be more than 15 days after the
children's court receives the petition from the presenting officer. If
the adjudicatory hearing is not held within 15 days after filing of the
petition, the petition shall be dismissed and cannot be filed again,
unless;
(a) The hearing is continued upon motion of the minor; or
(b) The hearing is continued upon motion of the presenting officer
by reason of the unavailability of material evidence or witnesses and
the children's court finds the presenting officer has exercised due
diligence to obtain the material evidence or witnesses and reasonable
grounds exist to believe that the material evidence or witnesses will
become available.
Sec.11.1009 Summons.
(a) At least five working days prior to the adjudicatory hearing,
the children's court shall issue summons to:
(1) The minor;
(2) The minor's parents, guardian or custodian; and
(3) Any person the children's court or the minor believes necessary
for the adjudication of the hearing.
(b) The summons shall contain the name of the court, the title of
the proceedings, and the date, time and place of the hearing.
(c) A copy of the petition shall be attached to the summons.
(d) The summons shall be delivered personally by a law enforcement
officer or appointee of the children's court. If the summons cannot be
delivered personally, the court may deliver it by certified mail.
Sec.11.1010 Adjudicatory hearing.
(a) The children's court shall conduct the adjudicatory hearing for
the sole purpose of determining the guilt or innocence of the minor. The
hearing shall be private and closed.
(b) All the rights listed in Sec.11.906 shall be afforded the
parties at the adjudicatory hearing. The notice requirements of Sec.
11.906(a) are met by a summons issued pursuant to Sec.11.1009.
(c) If the minor admits the allegations of the petition, the
children's court shall proceed to the dispositional stage only if the
children's court finds that:
(1) The minor fully understands his or her rights as set forth in
Sec.11.906 of this part and fully understands the potential
consequences of admitting the allegations;
(2) The minor voluntarily, intelligently and knowingly admits to all
facts necessary to constitute a basis for children's court action; and
(3) The minor has not, in the purported admission to the
allegations, set forth facts which, if found to be true, constitute a
defense to the allegations.
(d) The children's court shall hear testimony concerning the
circumstances which gave rise to the complaint.
(e) If the allegations of the petition are sustained by proof beyond
a reasonable doubt, the children's court shall find the minor to be a
juvenile offender and proceed to the dispositional hearing.
(f) A finding that a minor is a juvenile offender constitutes a
final order for purposes of appeal.
Sec.11.1011 Dispositional hearing.
(a) A dispositional hearing shall take place not more than 15 days
after the adjudicatory hearing.
(b) At the dispositional hearing, the children's court shall hear
evidence on the question of proper disposition.
(c) All the rights listed in Sec.11.906 shall be afforded the
parties in the dispositional hearing.
(d) At the dispositional hearing, the children's court shall
consider any predisposition report, physician's report or social study
it may have ordered and afford the parents an opportunity to controvert
the factual contents and
[[Page 51]]
conclusions of the reports. The children's court shall also consider the
alternative predisposition report prepared by the minor and his or her
attorney, if any.
(e) The dispositional order constitutes a final order for purposes
of appeal.
Sec.11.1012 Dispositional alternatives.
(a) If a minor has been adjudged a juvenile offender, the children's
court may make the following disposition:
(1) Place the minor on probation subject to conditions set by the
children's court;
(2) Place the minor in an agency or institution designated by the
children's court; or
(3) Order restitution to the aggrieved party.
(b) The dispositional orders are to be in effect for the time limit
set by the children's court, but no order may continue after the minor
reaches 18 years of age, unless the dispositional order was made within
six months of the minor's eighteenth birthday or after the minor had
reached 18 years of age, in which case the disposition may not continue
for more than six months.
(c) The dispositional order is to be reviewed at the children's
court discretion, but at least once every six months.
Sec.11.1013 Modification of dispositional order.
(a) A dispositional order of the children's court may be modified
upon a showing of a change of circumstances.
(b) The children's court may modify a dispositional order at any
time upon the motion of the minor or the minor's parents, guardian or
custodian.
(c) If the modification involves a change of custody, the children's
court shall conduct a hearing pursuant to paragraph (d) of this section.
(d) A hearing to review a dispositional order shall be conducted as
follows:
(1) All the rights listed in Sec.11.906 shall be afforded the
parties in the hearing to review the dispositional order. The notice
required by paragraph (a) of Sec.11.906 shall be given at least 48
hours before the hearing.
(2) The children's court shall review the performance of the minor,
the minor's parents, guardian or custodian, and other persons providing
assistance to the minor and the minor's family.
(3) In determining modification of disposition, the procedures
prescribed in Sec.11.1011 of this part shall apply.
(4) If the request for review of disposition is based upon an
alleged violation of a court order, the children's court shall not
modify its dispositional order unless it finds clear and convincing
evidence of the violation.
Sec.11.1014 Medical examination.
The children's court may order a medical examination for a minor who
is alleged to be a juvenile offender.
Subpart K_Minor-in-Need-of-Care Procedure
Sec.11.1100 Complaint.
A complaint must be filed by a law enforcement officer or by the
presenting officer and sworn to by a person who has knowledge of the
facts alleged. The complaint shall be signed by the complaining witness
and shall contain:
(a) A citation to the specific section of this part which gives the
children's court jurisdiction of the proceedings;
(b) The name, age and address of the minor who is the subject of the
complaint, if known; and
(c) A plain and concise statement of the facts upon which the
allegations are based, including the date, time and location at which
the alleged facts occurred.
Sec.11.1101 Warrant.
The children's court may issue a warrant, directing that a minor be
taken into custody if the children's court finds there is probable cause
to believe the minor is a minor-in-need-of-care.
Sec.11.1102 Custody.
A minor may be taken into custody by a law enforcement officer if:
(a) The officer has reasonable grounds to believe that the minor is
a minor-in-need-of-care and that the minor is in immediate danger from
his
[[Page 52]]
or her surroundings and that removal is necessary; or
(b) A warrant pursuant to Sec.11.1101 of this part has been issued
for the minor.
Sec.11.1103 Law enforcement officer's duties.
Upon taking a minor into custody the officer shall:
(a) Release the minor to the minor's parents, guardian or custodian
and issue a verbal advice or warning as may be appropriate, unless
shelter care is necessary.
(b) If the minor is not released, make immediate and recurring
efforts to notify the minor's parents, guardian or custodian to inform
them that the minor has been taken into custody and inform them of their
right to be present with the minor until an investigation to determine
the need for shelter care is made by the children's court.
Sec.11.1104 Shelter care.
(a) A minor alleged to be a minor-in-need-of-care may be detained,
pending a court hearing, in the following places:
(1) A foster care facility authorized under tribal or state law to
provide foster care, group care or protective residence;
(2) A private family home approved by the tribe; or
(3) A shelter care facility operated by a licensed child welfare
services agency and approved by the tribe.
(b) A minor alleged to be a minor-in-need-of care may not be
detained in a jail or other facility used for the detention of adults.
If such minor is detained in a facility used for the detention of
juvenile offenders, he or she must be detained in a room separate from
juvenile offenders, and routine inspection of the room where the minor
is detained must be conducted every 30 minutes to assure his or her
safety and welfare.
Sec.11.1105 Preliminary inquiry.
(a) If a minor is placed in shelter care, the children's court shall
conduct a preliminary inquiry with 24 hours for the purpose of
determining:
(1) Whether probable cause exists to believe the minor is a minor-
in-need-of care; and
(2) Whether continued shelter care is necessary pending further
proceedings.
(b) If a minor has been released to the parents, guardian or
custodian, the children's court shall conduct a preliminary inquiry
within three days after receipt of the complaint for the sole purpose of
determining whether probable cause exists to believe the minor is a
minor-in-need-of-care.
(c) If the minor's parents, guardian or custodian is not present at
the preliminary inquiry, the children's court shall determine what
efforts have been made to notify and obtain the presence of the parent,
guardian or custodian. If it appears that further efforts are likely to
produce the parent, guardian or custodian, the children's court shall
recess for no more than 24 hours and direct that continued efforts be
made to obtain the presence of the parents, guardian or custodian.
(d) All the rights listed in Sec.11.906 of this part shall be
afforded the parties in the minor-in-need-of care preliminary inquiry
except that the court is not required to appoint counsel if the parties
cannot afford one. Notice of the inquiry shall be given to the minor,
and his or her parents, guardian or custodian and their counsel as soon
as the time for the inquiry has been established.
(e) The children's court shall hear testimony concerning:
(1) The circumstances that gave rise to the complaint or the taking
of the minor into custody; and
(2) The need for shelter care.
(f) If the children's court finds that probable cause exists to
believe the minor is a minor-in-need-of-care, the minor shall be
released to the parents, guardian or custodian, and ordered to appear at
the adjudicatory hearing, unless:
(1) There is reasonable cause to believe that the minor will run
away and be unavailable for further proceedings;
(2) There is reasonable cause to believe that the minor is in
immediate danger from parents, guardian or custodian and that removal
from them is necessary; or
[[Page 53]]
(3) There is a reasonable cause to believe that the minor will
commit a serious act causing damage to person or property.
(g) The children's court may release the minor pursuant to paragraph
(f) of this section to a relative or other responsible adult tribal
member if the parents, guardian or custodian of the minor consent to the
release. If the minor is ten years to age or older, the minor and the
parents, guardian or custodian must both consent to the release.
(h) Upon finding that probable cause exists to believe that the
minor is a minor-in-need-of-care and that there is a need for shelter
care, the minor's shelter care shall be continued. Otherwise, the
complaint shall be dismissed and the minor released.
Sec.11.1106 Investigation by the presenting officer.
The presenting officer shall make an investigation following the
preliminary inquiry or the release of the minor to the parents, guardian
or custodian to determine whether the interests of the minor and the
public require that further action be taken. Upon the basis of this
investigation, the presenting officer may:
(a) Determine that no further action be taken; or
(b) File a petition pursuant to Sec.11.1107 of this part in the
children's court to initiate further proceedings. The petition shall be
filed within 48 hours of the preliminary inquiry if the minor is in
shelter care. If the minor has been previously released to the parents,
guardian or custodian, relative or responsible adult, the petition shall
be filed within ten days of the preliminary inquiry.
Sec.11.1107 Petition.
Proceedings under Sec. Sec.11.1100-11.1114 of this part shall be
instituted by a petition filed by the presenting officer on behalf of
the tribe and the interests of the minor. The petition shall state:
(a) The name, birth date, and residence of the minor;
(b) The names and residences of the minor's parents, guardian or
custodian;
(c) A citation to the specific section of this part which gives the
children's court jurisdiction of the proceedings; and
(d) If the minor is in shelter care, the place of shelter care and
the time he or she was taken into custody.
Sec.11.1108 Date of hearing.
Upon receipt of the minor-in-need-of-care petition, the children's
court shall set a date for the hearing which shall not be more than 15
days after the children's court receives the petition from the
presenting officer. If the adjudicatory hearing is not held within 15
days after the filing of the petition, it shall be dismissed unless;
(a) The hearing is continued upon motion of the minor; or
(b) The hearing is continued upon motion of the presenting officer
by reason of the unavailability of material evidence or witnesses and
the children's court finds the presenting officer has exercised due
diligence to obtain the material evidence or witnesses and reasonable
grounds exist to believe that the material evidence or witnesses will
become available.
Sec.11.1109 Summons.
(a) At least five working days prior to the adjudicatory hearing for
a minor-in-need-of-care, the children's court shall issue summons to:
(1) The minor;
(2) The minor's parents, guardian or custodian; and
(3) Any person the children's court or the minor believes necessary
for the proper adjudication of the hearing.
(b) The summons shall contain the name of the court; the title of
the proceedings, and the date, time and place of the hearing.
(c) A copy of the petition shall be attached to the summons.
(d) The summons shall be delivered personally by a tribal law
enforcement officer or appointee of the children's court. If the summons
cannot be delivered personally, the court may deliver it by certified
mail.
Sec.11.1110 Minor-in-need-of-care adjudicatory hearing.
(a) The children's court shall conduct the adjudicatory hearing for
the sole purpose of determining whether the
[[Page 54]]
minor is a minor-in-need-of-care. The hearing shall be private and
closed.
(b) All the rights listed in Sec.11.906 of this part shall be
afforded the parties in the adjudicatory hearing, except that the court
may not appoint counsel if the parties cannot afford one. The notice
requirements of Sec.11.906(a) are met by a summons issued pursuant to
Sec.11.1109.
(c) The children's court shall hear testimony concerning the
circumstances which gave rise to the complaint.
(d) If the circumstances of the petition are sustained by clear and
convincing evidence, the children's court shall find the minor to be a
minor-in-need-of-care and proceed to the dispositional hearing.
(e) A finding that a minor is a minor-in-need-of-care constitutes a
final order for purposes of appeal.
Sec.11.1111 Minor-in-need-of-care dispositional hearing.
(a) No later than 15 days after the adjudicatory hearing, a
dispositional hearing shall take place to hear evidence on the question
of proper disposition.
(b) All the rights listed in Sec.11.906 of this part shall be
afforded the parties in the dispositional hearing except the right to
free court-appointed counsel. Notice of the hearing shall be given to
the parties at least 48 hours before the hearing.
(c) At the dispositional hearing the children's court shall consider
any predisposition report or other study it may have ordered and afford
the parties an opportunity to controvert the factual contents and
conclusions of the reports. The children's court shall also consider the
alternative predisposition report prepared by the minor and his or her
attorney, if any.
(d) The dispositional order constitutes a final order for purposes
of appeal.
Sec.11.1112 Dispositional alternatives.
(a) If a minor has been adjudged a minor-in-need-of-care, the
children's court may:
(1) Permit the minor to remain with his or her parents, guardian or
custodian subject to such limitations and conditions as the court may
prescribe; or, if reasonable efforts to have the minor return or remain
in his or her own home are unsuccessful, the children's court may make
whichever of the following dispositions is in the best interest of the
minor;
(2) Place the minor with a relative within the boundaries of the
reservation subject to such limitations and conditions as the court may
prescribe;
(3) Place the minor in a foster home within the boundaries of the
reservation which has been approved by the tribe subject to such
limitations and conditions as the court may prescribe;
(4) Place the minor in shelter care facilities designated by the
court;
(5) Place the minor in a foster home or a relative's home outside
the boundaries of the reservation subject to such limitations and
conditions as the court may prescribe; or
(6) Recommend that termination proceedings begin.
(b) Whenever a minor is placed in a home or facility located outside
the boundaries of the reservation, the court may require the party
receiving custody of the minor to sign an agreement that the minor will
be returned to the court upon order of the court.
(c) The dispositional orders are to be in effect for the time limit
set by the children's court, but no order may continue after the minor
reaches 18 years of age, unless the dispositional order was made within
six months of the minor's eighteenth birthday, in which case the
disposition may not continue for more than six months.
(d) The dispositional orders are to be reviewed at the children's
court discretion, but at least once every six months to determine the
continuing need for and appropriateness of placement, to determine the
extent of progress made, and to assess the probability of the minor's
return to his or her home.
(e) A permanency planning hearing must be held within 18 months
after the original placement and every six months thereafter to
determine the future status of the minor except when the minor is
returned to his or her home and court supervision ceases.
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Sec.11.1113 Modification of dispositional order.
(a) A dispositional order of the children's court may be modified
upon a showing of a change of circumstances.
(b) The children's court may modify a dispositional order at any
time upon motion of the minor or the minor's parents, guardian or
custodian.
(c) If the modification involves a change of custody, the children's
court shall conduct a hearing pursuant to paragraph (d) of this section
to review the dispositional order.
(d) A hearing to review a dispositional order shall be conducted as
follows:
(1) All the rights listed in Sec.11.906 of this part shall be
afforded the parties in the review of the disposition hearing except the
right to free court-appointed counsel. Notice of the hearing shall be
given the parties at least 48 hours before the hearing.
(2) The children's court shall review the performance of the minor,
the minor's parents, guardian or custodian, and other persons providing
assistance to the minor and the minor's family.
(3) In determining modification of disposition, the procedures
prescribed in Sec.11.1111 of this part shall apply.
(4) If the request for review of disposition is based upon an
alleged violation of a court order, the children's court shall not
modify its dispositional order unless it finds clear and convincing
evidence of the violation.
Sec.11.1114 Termination.
(a) Parental rights to a child may be terminated by the children's
court according to the procedures in this section.
(b) Proceedings to terminate parental rights shall be instituted by
a petition filed by the presenting officer on behalf of the tribe or by
the parents or guardian of the child. The petition shall state:
(1) The name, birth date, and residence of the minor;
(2) The names and residences of the minor's parents, guardian or
custodian;
(3) If the child is in detention or shelter care, the place of
detention or shelter care and the time he was taken into custody; and
(4) The reasons for the petition.
(c) Upon receipt of the petition, the children's court shall set a
date for the termination hearing which shall not be more than 15 days
after the children's court receives the petition from the presenting
officer. The hearing may be continued:
(1) On motion of the minor's parents, guardian or custodian; or
(2) Upon motion of the presenting officer by reason of the
unavailability of material evidence or witnesses and the children's
court finds the presenting officer has exercised due diligence to obtain
the material evidence or witnesses and reasonable grounds exist to
believe that the material evidence or witnesses will become available.
(d) Summons:
(1) At least five working days prior to the termination hearing, the
children's court shall issue summons to the minor, the minor's parents,
guardian or custodian, and any other person the court or the minor's
parents, guardian or custodian believes necessary for the proper
adjudication of the hearing.
(2) The summons shall contain the name of the court, the title of
the proceedings, and the date, time and place of the hearing.
(3) A copy of the petition shall be attached to the summons.
(4) The summons shall be delivered personally by a law enforcement
officer or appointee of the children's court. If the summons cannot be
delivered personally, the court may deliver it by certified mail.
(e) The children's court shall conduct the termination hearing for
the sole purpose of determining whether parental rights shall be
terminated. The hearing shall be private and closed.
(1) All the rights listed in Sec.11.906 shall be afforded the
parties in the termination hearing except the right to a free court-
appointed counsel. The minor's parents may not be compelled to be
witnesses against, nor otherwise incriminate themselves.
(2) The children's court shall hear testimony concerning the
circumstances that gave rise to the petition, and the need for
termination of parental rights.
(3) The children's court may terminate parental rights if, following
efforts to prevent or eliminate the need
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to remove the minor, it finds such efforts to have been unsuccessful,
and it finds beyond a reasonable doubt that:
(i) The child has been abandoned;
(ii) The minor has suffered physical injuries, willfully and
repeatedly inflicted by his or her parent(s) which cause or create a
substantial risk of death, disfigurement, or impairment of bodily
functions;
(iii) The parent(s) has subjected the minor to willful and repeated
acts of sexual abuse;
(iv) The minor has suffered serious emotional or mental harm due to
the act of the parent(s); or
(v) The voluntary written consent of both parents has been
acknowledged before the court.
(f) Dispositional alternatives:
(1) If parental rights to a child are terminated, the children's
court shall place the minor in a foster care or shelter care facility
which has been approved by the tribe, and follow the adoption procedures
of the tribe, or, in their absence, the adoption procedures of the state
within which it is located.
(2) If parental rights to a child are not terminated, the children's
court shall make a disposition according to Sec.11.1112 of this part.
(g) The termination order constitutes a final order for purposes of
appeal.
(h) No adjudication of termination of parental rights shall affect
the minor's enrollment status as a member of any tribe or the minor's
degree of blood quantum of any tribe.
Sec.11.1115 Information collection.
(a) The information collection requirements contained in Sec.
11.600 and Sec.11.606 have been approved by the Office of Management
and Budget under 44 U.S.C. 3501 et seq., and assigned approval number
1076-0094. The information is being collected to obtain a marriage
license (Sec.11.600) and a divorce decree (Sec.11.606) from the
Courts of Indian Offenses, and will be used by the courts to issue a
marriage license or divorce decree. Response to this request is required
to obtain a benefit.
(b) Public reporting for this information collection is estimated to
average .25 hours per response, including the time for reviewing
instructions, gathering and maintaining data, and completing and
reviewing the information collection. Direct comments regarding the
burden estimate or any other aspect of this information collection to
the Bureau of Indian Affairs, Information Collection Clearance Officer,
Room 336-SIB, 1849 C Street, NW., Washington, DC 20240; and the Office
of Information and Regulatory Affairs [Project 1076-0094], Office of
Management and Budget, Washington, DC 20502.
Subpart L_Child Protection and Domestic Violence Procedures
Source: 73 FR 39862, July 11, 2008, unless otherwise noted.
Sec.11.1200 Definitions.
For purposes of this subpart:
Domestic violence means to inflict physical harm, bodily injury, or
sexual assault, or the fear of imminent physical harm, bodily injury, or
sexual assault on a family member.
Family member means any of the following:
(1) A spouse;
(2) A former spouse;
(3) A person related by blood;
(4) A person related by existing or prior marriage;
(5) A person who resides or resided with the defendant;
(6) A person with whom the defendant has a child in common; or
(7) A person with whom the defendant is or was in a dating or
intimate relationship.
Parent means persons who have a child in common, regardless of
whether they have been married or have lived together at any time.
Sec.11.1202 How to petition for an order of protection.
A victim of domestic violence, or the parent, guardian of a victim,
or a concerned adult may petition the court under this subpart for an
order of protection.
(a) The petition must be made under oath or accompanied by a sworn
affidavit setting out specific facts describing the act of domestic
violence.
(b) The petitioner is not required to file for annulment,
separation, or divorce in order to obtain an order of
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protection. However, the petition should state whether any legal action
is pending between the petitioner and the respondent.
(c) The Court may develop simplified petition forms with
instructions for completion and make them available to petitioners not
represented by counsel. Law enforcement agencies may keep the forms on
hand and make them available upon request to victims of domestic
violence.
Sec.11.1204 Obtaining an emergency order of protection.
(a) When a victim files a petition for an order of protection under
Sec.11.202(a), the court may immediately grant an ex parte emergency
order of protection if the petition clearly shows that an act of
domestic violence has occurred. The order must meet the content
requirements of Sec.11.206 (a) and (b).
(b) If the court does not immediately grant an emergency order of
protection under paragraph (a) of this section, the court must either:
(1) Within 72 hours after the victim files a petition, serve notice
to appear upon both parties and hold a hearing on the petition for order
of protection; or
(2) If a notice of hearing cannot be served within 72 hours, issue
an emergency order of protection.
(c) If the court issues an ex parte emergency order of protection
under paragraph (a) of this section, it must within 10 days hold a
hearing on the question of continuing the order. If notice of hearing
cannot be served within 10 days:
(1) The emergency order of protection is automatically extended for
10 days; and
(2) If after the 10-day extension, notice to appear cannot be
served, the emergency order of protection expires.
(d) If the court issues an ex parte emergency order of protection
under paragraph (b)(2) of this section, it must cause the order to be
served on the person alleged to have committed a family violence act and
seek to hold a hearing as soon as possible. If a hearing cannot be held
within 10 days, the petitioner may ask the court to renew the emergency
protection order.
Sec.11.1206 Obtaining a regular (non-emergency) order of protection.
Following a hearing and finding that an act of domestic violence
occurred, the court may issue an order of protection. The order must
meet the requirements of paragraph (a) of this section and may meet the
requirements of paragraph (b) of this section. Either party may request
a review hearing to amend or vacate the order of protection.
(a) The order of protection must do all of the following:
(1) Specifically describe in clear language the behavior the court
has ordered he or she do or refrain from doing;
(2) Give notice that violation of any provision of the order of
protection constitutes contempt of court and may result in a fine or
imprisonment, or both; and
(3) Indicate whether the order of protection supersedes or alters
prior orders pertaining to matters between the parties.
(b) The order of protection may do any of the following:
(1) Order the person who committed the act of domestic violence to
refrain from acts or threats of violence against the petitioner or any
other family member;
(2) Order that the person who committed the act of domestic violence
be removed from the home of the petitioner;
(3) Grant sole possession of the residence or household to the
petitioner during the period the order of protection is effective, or
order the person who has committed an act of domestic violence to
provide temporary suitable alternative housing for the petitioner and
other family members to whom the respondent owes a legal obligation of
support;
(4) Award temporary custody of any children involved when
appropriate and provide for visitation rights, child support, and
temporary support for the petitioner on a basis which gives primary
consideration to the safety of the petitioner and other household
members;
(5) Order the person who is found to have committed an act of
domestic violence not to initiate contact with the petitioner;
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(6) Restrain the parties from transferring, concealing, encumbering,
or otherwise disposing of one another's property or the joint property
of the parties except in the usual course of business or for the
necessities of life, and order the parties to account to the court for
all such transferring, encumbrances, and expenditures made after the
order is served or communicated; and
(7) Order other injunctive relief as the court deems necessary for
the protection of the petitioner, including orders to law enforcement
agencies as provided by this subpart.