[Federal Register Volume 61, Number 130 (Friday, July 5, 1996)]
[Proposed Rules]
[Pages 35158-35163]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16039]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 11

RIN 1076-AD76


Law and Order on Indian Reservations

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Proposed rule.

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SUMMARY: The Bureau of Indian Affairs is proposing to amend its 
regulations governing Courts of Indian Offenses to clarify the 
authority of the Assistant Secretary for Indian Affairs to establish 
the courts, the jurisdiction of the courts, their relationship to 
tribal governments and the Department of the Interior, and to provide 
those courts with an updated code of laws.

DATES: Comments must be received on or before October 3, 1996.

ADDRESSES: Comments are to be mailed to Bettie Rushing, Office of 
Tribal Services, Bureau of Indian Affairs, 1849 C Street, NW, MS 2611-
MIB, Washington, DC 20240; or, hand delivered to Room 4603 at the same 
address.

FOR FURTHER INFORMATION CONTACT: Bettie Rushing, Bureau of Indian 
Affairs (202) 208-3463.

SUPPLEMENTARY INFORMATION:

Background

    The comments received in response to a prior proposed rule 
published on October 24, 1985, and published as a final rule on October 
21, 1993, included suggestions for the inclusion of new provisions in 
the Law and Order Code (Code). Because the inclusion of the suggested 
provisions in the final rule would have constituted new matter adopted 
without opportunity for general public comment, a separate rule is now 
proposed for those provisions to be added to the Code.
    This proposed rule (1) provides for the establishment of courts 
when tribal justice systems are not functioning, (2) changes the method 
of listing Indian reservations to which the Code applies, (3) clarifies 
the provision on jurisdictional limitations which excludes from 
jurisdiction under this part Federal employees acting within the scope 
of their employment, (4) adds provisions for drug abuse, abuse of 
psychotoxic substances, child abuse, prostitution, and family violence, 
and (5) increases the maximum penalties for various offenses in the 
Code.
    The increased penalties are proposed in response to the law 
enforcement provisions of the Anti-Drug Abuse Act of 1986, amending the 
sentencing limitations of the Indian Civil Rights Act, 25 U.S.C. 1302. 
Indian may courts to impose maximum fines up to $5,000 and sentences of 
imprisonment up to one year.
    Inclusion in Sec. 11.100, Listing of Courts of Indian Offenses, 
does not defeat the inherent sovereignty of a tribe to establish tribal 
courts and exercise jurisdiction under tribal law. Tillett v. Lujan, 
931 F.2d 636, 640 (10th Cir. 1991) (C.F.R. courts ``retain some 
characteristics of an agency of the federal government'' but they 
``also function as tribal courts''); Combrink v. Allen, 20 Indian L. 
Rep. 6029, 6030 (Ct. Ind. App., Tonkawa, Mar. 5, 1993) (C.F.R. court is 
a ``federally administered tribal court''); Ponca Tribal Election Board 
v. Snake, 17 Indian L. Rep. 6085, 6088 (Ct. Ind. App., Ponca, Nov. 10, 
1988) (``The Courts of Indian Offenses act as tribal courts since they 
are exercising the sovereign authority of the tribe for which the court 
sits.''). Such exercise of inherent sovereignty and the establishment 
of tribal courts shall comply with the requirements set forth in 25 CFR 
Sec. 11.100(c).
    A clarifying sentence has been added to the jurisdictional 
limitations section to express unambiguously that Federal and state 
employees acting within the scope of their employment are not subject 
to the jurisdiction of Courts of Indian Offenses.
    The new offenses are abuse of psychotoxic chemical solvents and 
dangerous drug offense. They are also proposed in response to the Anti-
Drug Abuse Act, and are intended to enhance the ability of law 
enforcement agencies on Indian reservations to prevent and penalize the 
traffic of illegal narcotics and the misuse of dangerous substances. 
The two sections were suggested by the Anadarko Area Law Enforcement 
Office of the Bureau of Indian Affairs. No specific exception for 
peyote is included because peyote for religious use by the Native 
American Church is excluded from prosecution under the referenced 
federal statute.
    Prostitution was inadvertently omitted from the revision of the Law 
and Order Code and is, therefore, included here. The crime is a 
continuation of the provision contained in 25 CFR Part 11 which has 
been in force for many years, with the addition of the crime of 
pandering which is intended to facilitate the prosecution of persons 
procuring for prostitutes.
    Child abuse and neglect has been added as a separate criminal 
offense. Its inclusion was inspired by the Draft

[[Page 35159]]

Child/Family Protection Code developed by the National Indian Justice 
Center for the Bureau of Indian Affairs. Although there is some 
overlapping of these offenses and the sexual assault provisions of the 
revised Law and Order Code, the abuse provision is much broader and 
will give prosecutors more flexibility in protecting children from 
abuse. The mandatory reporting provision was added to conform with the 
Bureau's administrative reporting requirements.
    The family violence subpart establishes a new procedure for acts of 
family violence. This approach to family violence reflects the decision 
set forth in Thurman v. City of Torrington, 595 F. Supp. 1521 (D. Conn. 
1984). Thurman filed an action against the city alleging a violation of 
equal protection for the city's failure to provide the same type of 
protection to persons in a family relationship as it provides to other 
abused persons. The court, finding that Thurman had a cause of action 
under the equal protection clause, held that the city had an 
affirmative duty to treat family partners as it would other abused 
persons. The knowledge that arrests deter subsequent family violence 
has resulted in all states passing some type of special legislation for 
acts of family violence. Forty-eight states have warrantless arrest 
provisions and many have special protective orders. This subpart is 
drawn from those statutes. Although much of this subpart is procedural, 
we have not included it in the procedures sections. Because the 
procedure is complicated, comprehensive and applicable to only one 
general situation, we concluded that it deserved its own subpart under 
Part 11.
    The proposed rule will not require additional staffing for these 
courts. It is not anticipated that this revision will have a 
significant effect on the annual caseload of these courts because it 
does not enlarge their jurisdiction. Prosecutors must routinely use 
their discretion in balancing their workloads with the time and 
prosecutorial resources available. Likewise, in sentencing convicted 
defendants, judges are acutely aware of the constraints imposed by 
limited jail space.
    Courts of Indian Offenses are funded in their entirety by the 
Federal Government and do not receive additional funding from tribal 
governments. Because we do not foresee any economic effect on Courts of 
Indian Offenses as a result of these amendments, there will be no 
requirement of additional outlays by the Federal Government or the 
tribes affected by the proposed amendments.

Certification and Evaluation

    The authority to issue this amendment is vested in the Secretary of 
the Interior by 5 U.S.C. 301 and 25 U.S.C. 2 and 9, and 25 U.S.C. 13 
which authorize appropriations for ``Indian judges.''
    Publication of the proposed rule by the Department of the Interior 
(Department) provides the public an opportunity to participate in the 
rulemaking process. Interested persons may submit written comments 
regarding the proposed rule to the location identified in the 
``addresses'' section of this document.

Executive Order 12988

    The Department has determined that this proposed rule meets the 
applicable standards provided in sections 3(a) and 3(b)(2) of Executive 
Order 12988.

Executive Order 12866

    This proposed rule is not a significant regulatory action under 
Executive Order 12866.

Regulatory Flexibility Act

    This proposed rule will not have a significant economic impact on a 
substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.).

Executive Order 12630

    The Department has determined that this proposed rule does not have 
``significant'' takings implications. The proposed rule does not 
pertain to ``taking'' of private property interests, nor does it impact 
private property.

Executive Order 12612

    The Department has determined that this proposed rule does not have 
significant federalism effects because it pertains solely to Federal-
tribal relations and will not interfere with the roles, rights and 
responsibilities of states.

NEPA Statement

    The Department has determined that this proposed rule does not 
constitute a major Federal action significantly affecting the quality 
of the human environment and that no detailed statement is required 
pursuant to the National Environmental Policy Act of 1969.

Unfunded Mandates Act of 1995

    This proposed rule imposes no unfunded mandates on any governmental 
or private entity and is in compliance with the provisions of the 
Unfunded Mandates Act of 1995.

Paperwork Reduction Act of 1995

    This rule has been examined under the Paperwork Reduction Act of 
1995 and has been found to contain no information collection 
requirements.

Drafting Information

    The primary authors of this document are Neil R. McDonald, Office 
of the Solicitor, Division of Indian Affairs, and Bettie Rushing, 
Office of Tribal Services, Bureau of Indian Affairs, Department of the 
Interior.

List of Subjects in 25 CFR Part 11

    Courts, Indians--law, Law enforcement, Penalties.

    For the reasons set out in the preamble, Part 11 of Chapter 1 of 
Title 25 of the Code of Federal Regulations is proposed to be amended 
as set forth below.

PART 11--COURTS OF INDIAN OFFENSES AND LAW AND ORDER CODE

    1. The authority citation for 25 CFR Part 11 continues to read as 
follows:

    Authority: 5 U.S.C. 301; R.S. 463; 25 U.S.C. 2; R.S. 465; 25 
U.S.C. 9; 42 Stat. 208; 25 U.S.C. 13; 38 Stat. 586; 25 U.S.C. 200.

Subpart A--Application; Jurisdiction

    2. Section 11.100 is amended by revising paragraphs (a), (b) and 
(c) to read as follows:


Sec. 11.100  Where are Courts of Indian Offenses established?

    (a) Unless indicated otherwise in this title, the regulations in 
this part apply to the Indian country (as defined in 18 U.S.C. 1151) 
occupied by the following tribes:
    (1) Red Lake Band of Chippewa Indians (Minnesota).
    (2) Confederated Tribes of the Goshute Reservation (Nevada).
    (3) Lovelock Paiute Tribe (Nevada).
    (4) Te-Moak Band of Western Shoshone Indians (Nevada).
    (5) Yomba Shoshone Tribe (Nevada).
    (6) Kootenai Tribe (Idaho).
    (7) Shoalwater Bay Tribe (Washington).
    (8) Eastern Band of Cherokee Indians (North Carolina).
    (9) For the following tribes located in the former Oklahoma 
Territory (Oklahoma):
    (i) Absentee Shawnee Tribe of Indians of Oklahoma
    (ii) Apache Tribe of Oklahoma
    (iii) Caddo Tribe of Oklahoma
    (iv) Cheyenne-Arapaho Tribe of Oklahoma
    (v) Citizen Band of Potawatomi Indians of Oklahoma

[[Page 35160]]

    (vi) Comanche Tribe of Oklahoma (Except Comanche Children's Court)
    (vii) Delaware Tribe of Western Oklahoma
    (viii) Fort Sill Apache Tribe of Oklahoma
    (ix) Iowa Tribe of Oklahoma
    (x) Kaw Tribe of Oklahoma
    (xi) Kickapoo Tribe of Oklahoma
    (xii) Kiowa Tribe of Oklahoma
    (xiii) Otoe-Missouria Tribe of Oklahoma
    (xiv) Pawnee Tribe of Oklahoma
    (xv) Ponca Tribe of Oklahoma
    (xvi) Tonkawa Tribe of Oklahoma
    (xvii) Wichita and Affiliated Tribes of Oklahoma.
    (10) Hoopa Valley Tribe, Yurok Tribe, and Coast Indian Community of 
California (California Jurisdiction limited to special fishing 
regulations).
    (11) Louisiana Area (includes Coushatta and other tribes in the 
State of Louisiana which occupy Indian country and which accept the 
application of this part);
    Provided that this part shall not apply to any Louisiana tribe 
other than the Coushatta Tribe until notice of such application has 
been published in the Federal Register.
    (12) For the following tribes located in the former Indian 
Territory (Oklahoma):
    (i) Chickasaw Nation
    (ii) Choctaw Nation
    (iii) Thlopthlocco Tribal Town
    (iv) Seminole Nation
    (v) Eastern Shawnee Tribe
    (vi) Miami Tribe
    (vii) Modoc Tribe
    (viii) Ottawa Tribe
    (ix) Peoria Tribe
    (x) Quapaw Tribe
    (xi) Wyandotte Tribe
    (xii) Seneca-Cayuga Tribe
    (xiii) Osage Tribe.
    (13) Ute Mountain Ute Tribe (Colorado).
    (b) The purpose of the regulations in this part is 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 or where tribal 
justice systems are not functioning.
    (c) The regulations in this part continue to apply to tribes listed 
in Sec. 11.100(a) until a law and order code which includes the 
establishment of a court system has been adopted by the tribe in 
accordance with its constitution and by-laws or other governing 
documents has become effective, and the Assistant Secretary--Indian 
Affairs or his or her designee has received a valid tribal enactment 
identifying the future effective date of the code's implementation. The 
effective date of the code's implementation must allow 60 days for 
publication of the amendment to Sec. 11.100(a) which provides public 
notice of the change. The tribally established future effective date 
will also be published as the effective date of the change.
* * * * *
    3. The headings of the following sections are revised to read as 
follows:

------------------------------------------------------------------------
             Section                  Old heading         New heading   
------------------------------------------------------------------------
11.101..........................  Prospective         When are these    
                                   application of      regulations      
                                   regulations.        effective?       
11.102..........................  Criminal            What is the       
                                   jurisdiction;       criminal         
                                   limitation of       jurisdiction of  
                                   actions.            the Court of     
                                                       Indian Offenses? 
11.103..........................  Civil               What is the civil 
                                   jurisdiction;       jurisdiction of  
                                   limitation of       the Court of     
                                   actions.            Indian Offenses? 
------------------------------------------------------------------------

    4. Section 11.104 is amended by revising paragraphs (a) through (d) 
to read as follows:


Sec. 11.104  What are the jurisdictional limitations of the Court of 
Indian Offenses?

    (a) No Court of Indian Offenses may exercise any jurisdiction over 
a Federal or state official that it could not exercise if it were a 
tribal court. The jurisdiction of Courts of Indian Offenses shall not 
extend to Federal or state employees acting within the scope of their 
employment.
    (b) Unless otherwise provided by a resolution or ordinance of the 
tribal governing body of the tribe occupying the Indian country over 
which a Court of Indian Offenses has jurisdiction, no Court of Indian 
Offenses may adjudicate an election dispute or take jurisdiction over a 
suit against the tribe or adjudicate any internal tribal government 
dispute.
    (c) 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, must be given great weight by the Bureau 
of Indian Affairs in deciding who is a tribal official.
    (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

    5. Section 11.200 is amended by revising the heading and paragraph 
(c) to read as follows:


Sec. 11.200  What is the composition of the Court of Indian Offenses?

* * * * *
    (c) Appeals shall be heard by a magistrate who was not involved in 
the trial of the case.
* * * * *
    6. Section 11.201 is amended by revising the heading and paragraph 
(a) to read as follows:


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. In the case of 
multi-tribal courts, the appointment of the magistrate is subject to 
confirmation by a majority of the tribal governing bodies of the tribes 
under the jurisdiction of a Court of Indian Offenses. Only the 
Assistant Secretary--Indian Affairs may grant a waiver of this 
paragraph when discord precludes confirmation, and appoint a magistrate 
for a term not to exceed one year.
* * * * *
    7. The headings of the following sections are revised to read as 
follows:

------------------------------------------------------------------------
             Section                  Old heading         New heading   
------------------------------------------------------------------------
11.202..........................  Removal of          How is a          
                                   magistrates.        magistrate of the
                                                       Court of Indian  
                                                       Offenses removed?
11.203..........................  Court clerks......  How are the clerks
                                                       of the Court of  
                                                       Indian Offenses  
                                                       appointed and    
                                                       what are their   
                                                       duties?          
11.205..........................  Standard governing  Are there         
                                   appearance of       standards for the
                                   attorneys and lay   appearance of    
                                   counselors.         attorneys and lay
                                                       counselors?      
11.206..........................  Court records.....  Is the Court of   
                                                       Indian Offenses a
                                                       court of record? 
11.207..........................  Cooperation of      What are the      
                                   Bureau of Indian    responsibilities 
                                   Affairs employees.  of Bureau of     
                                                       Indian Affairs   
                                                       employees?       

[[Page 35161]]

                                                                        
11.208..........................  Payment of          May Individual    
                                   judgments from      Indian Money     
                                   individual Indian   accounts be used 
                                   money accounts.     for payment of   
                                                       judgments?       
11.209..........................  Disposition of      How does the Court
                                   fines.              of Indian        
                                                       Offenses dispose 
                                                       of fines?        
------------------------------------------------------------------------



Subpart C--Criminal Procedure

    8. Section 11.315 is amended by revising paragraph (a) to read as 
follows:


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 not to exceed the maximum permitted 
by the section defining the offense, which in no case shall be greater 
than one year.
    (2) A money fine in an amount not to exceed the maximum permitted 
by the section defining the offense, which in no case shall be greater 
than five thousand dollars ($5,000).
* * * * *

Subpart D--Criminal Offenses

    9. Section 11.450 is amended by revising paragraph (a) to read as 
follows:


Sec. 11.450  Maximum fines and sentences of imprisonment.

    (a) A person convicted of an offense under the regulations in this 
part may be sentenced as follows:
    (1) If the offense is a misdemeanor, to a term of imprisonment not 
to exceed one year or to a fine not to exceed five thousand dollars 
($5,000), or both;
    (2) If the offense is a petty misdemeanor, to a term of 
imprisonment not to exceed six months, and to a fine not to exceed five 
hundred dollars ($500), or both;
    (3) If the offense is a violation, to a term of imprisonment not to 
exceed three months or to a fine not to exceed two hundred fifty 
dollars ($250), or both.
* * * * *
    10. Sections 11.451 through 11.455 are added to read as follows:


Sec. 11.451  Abuse of psychotoxic chemical solvents.

    (a) It shall be unlawful purposely to smell or inhale the fumes of 
any psychotoxic chemical solvent, or to possess, purchase, or attempt 
to possess or purchase any psychotoxic chemical solvent, with the 
intention of causing a condition of intoxication, inebriation, 
excitement, stupefaction, or the dulling of the brain or nervous 
system; or to 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 intends to 
use the solvent in violation of this section.
    (b) This section shall not apply to the inhalation of anesthesia 
for medical or dental purposes.
    (c) As used in this section, ``psychotoxic chemical solvent'' 
includes any glue, gasoline, paint, hair spray, lysol, or other 
substance containing one or more of the following chemical compounds: 
acetone and acetate, benzene, butyl-alcohol, methyl ethyl, peptone, 
pentachlorophenol, petroleum ether, or other chemical substances 
capable of causing a condition of intoxication, inebriation, 
excitement, stupefaction, or the dulling of the brain or nervous system 
as a result of the inhalation of the fumes or vapors of such chemical 
substance. The statement of listing of the contents of a substance 
packaged in a container by the manufacturer or producer thereof shall 
be proof of the contents of such substances without further expert 
testimony if it reasonably appears that the substance in such container 
is the same substance placed therein by the manufacturer or producer.
    (d) Abuse of psychotoxic chemical solvents, as defined in this 
section, shall be punishable as a petty misdemeanor, and the court may 
order any person using psychotoxic chemical solvents for inhalation to 
be committed to a facility for treatment for a term not to exceed six 
months.
    (e) Such psychotoxic chemical solvents kept or used in violation of 
this section are hereby declared to be contraband and upon proof of a 
violation, following public notice and an opportunity for any person 
claiming an interest therein to be heard, shall be forfeited to the 
government by order of the court.


Sec. 11.452  Dangerous drug offense.

    (a) It shall be unlawful, except as authorized and controlled by 
Federal law, to manufacture, distribute, possess with intent to 
distribute, dispense, create, possess, or cultivate a controlled or a 
counterfeit substance; or to obtain or acquire possession of a 
controlled substance by misrepresentation, fraud, forgery, deception, 
or subterfuge; or to knowingly or intentionally use any communication 
facility in committing any of the above prohibited acts.
    (b) Controlled or counterfeit substances shall consist of the 
substances listed in 21 U.S.C. 812, and any other chemical substance, 
natural or artificial, defined as a controlled or dangerous substance, 
the possession, sale, distribution, or use of which is prohibited by 
Federal law.
    (c) Each of the unlawful acts listed in paragraph (a) of this 
section shall be punishable as a misdemeanor. Upon conviction under 
this section for sales distribution, possession with the intent to 
distribute, manufacture with intent to sell, or cultivation with intent 
to distribute, banishment may also be imposed for a term not to exceed 
ten years.
    (d) Any substance handled in violation of this section is deemed 
and declared to be contraband and upon proof of such a violation, after 
public notice and an opportunity for any person claiming an interest in 
the substance to be heard, shall be forfeited to the government by 
order of the court.
    (e) Any personal property used to transport, conceal, manufacture, 
cultivate, or distribute the controlled dangerous substance in 
violation of this section shall be subject to forfeiture to the 
government by order of the court upon proof of such use, following 
public notice and opportunity for any person claiming an interest in 
the property to be heard.


Sec. 11.453  Prostitution.

    A person who commits prostitution or pandering 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.


Sec. 11.454  Child abuse and neglect.

    (a) A person commits a misdemeanor if he or she inflicts abuse or 
neglect on a child. Child abuse or neglect includes:
    (1) Any case in which a child exhibits evidence of skin bruising, 
bleeding, malnutrition, burns, fracture of any bone, subdural hematoma, 
soft tissue swelling, or is dead and such condition or death is not 
justifiably explained, or where the history given concerning such 
condition or death or circumstances indicate that such condition or 
death may not be the product of an accidental occurrence;
    (2) Any case in which a child is subjected to sexual assault or 
molestation, sexual exploitation, or prostitution;
    (3) Any case in which circumstances indicate that a child's health 
or welfare is harmed or threatened by negligent treatment or 
maltreatment by a person; and/or,

[[Page 35162]]

    (4) Any case in which a child is in need of services because of the 
failure of the child's parent(s), legal guardian(s), or custodian(s) to 
provide adequate food, clothing, shelter, medical care, or supervision 
that a prudent parent would take.
    (b) For purposes of this section, ``child'' means any individual 
who is not married and has not attained 18 years of age.


Sec. 11.455  Persons required to report child abuse and neglect.

    (a) Any person having reasonable cause to know or suspect that a 
child was abused or neglected in Indian country shall report the 
incident. Any person shall also report any actions which would 
reasonably result in abuse or neglect.
    (b) Any person who fails to report an instance of child abuse or 
neglect in Indian country of which he or she has knowledge or of which 
he or she should reasonably have knowledge is guilty of a misdemeanor. 
Any person who inhibits the making of a report is guilty of a 
misdemeanor.
    (c) Any person making a report in good faith shall be immune from 
criminal and civil liability.
    11. A new Subpart L is added to read as follows:

Subpart L--Child Protection and Family Violence Procedures

Sec.
11.1200  Child protection procedures.
11.1201  Family violence procedures.

Subpart L--Child Protection and Family Violence Procedures


Sec. 11.1200  Child protection procedures.

    As required by the Indian Child Protection and Family Violence 
Prevention Act, 25 U.S.C. 3203, the following child protection 
procedures are established.
    (a) Reporting child abuse and neglect. Oral reports of child abuse 
and neglect in Indian country must be made immediately to the local 
child protective services or local law enforcement.
    (b) Federal Bureau of Investigation. If the report involves an 
Indian child or the person alleged to have abused or neglected the 
child is an Indian and the preliminary inquiry indicates a criminal 
violation has occurred, the local law enforcement agency (if other than 
the Federal Bureau of Investigation) must immediately report the 
incident to the Federal Bureau of Investigation.
    (c) Child protection report. Within 36 hours, a written report must 
be prepared by the receiving agency. The report must include:
    (1) The name, address, age, and sex of the child that is the 
subject of the report;
    (2) The grade and the school in which the child is currently 
enrolled;
    (3) The name and address of the child's parents or other persons 
responsible for the child's care;
    (4) The name and address of the alleged offender;
    (5) The name and address of the person who made the report to the 
agency;
    (6) A brief narrative as to the nature and extent of the child's 
injuries, including any previously known or suspected abuse of the 
child or the child's siblings and the suspected date of the abuse; and,
    (7) Any other information the agency or the person who made the 
report to the agency believes to be important to the investigation and 
disposition of the alleged abuse.
    (d) Investigation. Any local law enforcement agency or local child 
protective services agency that receives a report alleging abuse or 
neglect described in Sec. 11.454 must immediately initiate an 
investigation of such allegation and take appropriate steps to secure 
the safety and well-being of the child or children involved.
    (e) Investigative report. Upon completion of the investigation of 
any report of alleged abuse that is made to a local law enforcement 
agency or local child protective services agency, such agency must 
prepare a final written report on such allegation.
    (f) Confidentiality. The identity of any person making a report 
under this section must not be disclosed, without the consent of the 
individual, to any person other than a court of competent jurisdiction 
or an employee of the Indian tribe, state or Federal Government who 
needs to know the information in the performance of the employee's 
duties.
    (g) Complaint. A complaint must be filed by a law enforcement 
officer.


Sec. 11.1201   Family violence procedures.

    (a) Warrantless arrest. A law enforcement officer shall arrest a 
person and take that person into custody without a warrant when the 
officer has probable cause to believe that the person has committed a 
family violence act such as intentional or negligent infliction of 
bodily injury; unreasonable confinement; intimidation; cruel punishment 
resulting in physical harm, pain or mental anguish; any sexual contact 
intended to sexually gratify the person making the contact and which is 
without consent or obtained by intimidation or fraud; intentional 
infliction of threats, humiliation or intimidation; unauthorized or 
improper use of funds, property or other resources; or criminal 
trespass upon a spouse, former spouse, family member, present or former 
household member, or co-parent.
    (b) Definition of co-parent. For purposes of this subpart ``co-
parent'' means persons who have a child in common regardless of whether 
they have been married or have lived together at any time. For purposes 
of this subpart ``family member'' includes grandparents, aunts, uncles 
and cousins who are present or former household members.
    (c) Liability. No law enforcement officer shall be held criminally 
or civilly liable for making an arrest pursuant to this subpart, 
provided he or she acts reasonably and in good faith.
    (d) Petition for order of protection. A victim of a family violence 
act may petition the court under this subpart for an order of 
protection.
    (1) The petition shall be made under oath or shall be accompanied 
by a sworn affidavit setting out specific facts describing the act of 
family violence.
    (2) No petitioner is required to file for annulment, separation, or 
divorce as a prerequisite to obtaining an order of protection. However, 
the petition shall state whether any other family action is pending 
between the petitioner and the respondent.
    (3) Standard simplified petition forms with instructions for 
completion shall be available to petitioners not represented by 
counsel. Law enforcement agencies shall keep such forms and make them 
available upon request to victims of family violence.
    (e) Emergency order of protection. Upon the filing of a petition 
for order of protection:
    (1) The court may immediately grant an ex parte emergency order of 
protection if there is clear and convincing evidence from the specific 
facts shown by the affidavit or by the petition that a family violence 
act has occurred;
    (2) The court shall cause the emergency order of protection 
together with notice of hearing to be served immediately on the person 
alleged to have committed a family violence act; and,
    (3) The court shall hold a hearing on the question of continuing 
the order within ten days of granting the emergency order of 
protection; or
    (4) If an ex parte order is not granted, the court shall serve 
notice to appear upon both parties and hold a hearing on the petition 
for order of protection within seventy-two hours after the filing of 
the petition; if notice of hearing

[[Page 35163]]

cannot be served within seventy-two hours, a temporary order of 
protection may be issued;
    (5) If notice of hearing cannot be served within 10 days, the 
temporary order of protection shall be automatically extended for ten 
days; and,
    (6) If after the 10-day extension notice to appear cannot be 
served, the temporary order of protection shall expire.
    (f) Order of protection. Following a hearing and finding that a 
family violence act occurred, the court may enter an order of 
protection that specifically describes in clear language, 
understandable to the person who committed the family violence act, the 
behavior the court has ordered he or she do or refrain from doing. In 
any order of protection, the court:
    (1) May order the person who committed the family violence act to 
refrain from acts or threats of violence against the petitioner or any 
other household member.
    (2) May order that the person who committed the family violence act 
be removed from the home of the petitioner;
    (3) May 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 a family violence act to provide 
temporary suitable alternative housing for the petitioner and other 
household members to whom the respondent owes a legal obligation of 
support;
    (4) May 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) May order that the person who committed a family violence act 
not initiate contact with the petitioner;
    (6) May 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 to account to the court for all such 
transferring, encumbrances, and expenditures made after the order is 
served or communicated;
    (7) May 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;
    (8) Shall 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;
    (9) Shall indicate whether the order of protection supersedes or 
alters prior orders pertaining to family matters between the parties;
    (10) Shall not affect the title to any property or allow the 
petitioner to transfer, conceal, encumber, or otherwise dispose of 
respondent's property or the joint property of the parties.
    (g) Review hearing. Either party may request a review hearing to 
amend or vacate the order of protection.
    (h) Service of the protection order. An order of protection granted 
under this subpart shall be filed with the clerk of the court and a 
copy shall be sent by the clerk of the court to the law enforcement 
agency with the jurisdiction over the areas of Indian Country in which 
the court is located. The order shall be personally served upon the 
respondent, unless the respondent or his or her attorney was present at 
the time the order was issued. If the court finds the petitioner unable 
to pay court costs, the order shall be served without cost to the 
petitioner.
    (i) Duration of order of protection. An order of protection granted 
by the court shall be effective for a fixed period of time not to 
exceed three months. The order may be extended for good cause upon 
motion of the petitioner for an additional period of time not to exceed 
three months.
    (j) Contempt of court. Any willful disobedience or interference 
with any court order constitutes contempt of court which may result in 
a fine or imprisonment, or both in accordance with this part.
    (k) Remedies. The remedies provided in this subpart are in addition 
to the other civil or criminal remedies available to the petitioner.
    (l) Emergency assistance. The court shall require the local law 
enforcement agency to give notice of the availability of emergency 
assistance. Notice shall include telling all victims of family violence 
where a shelter or other services are available in the community and 
giving all victims immediate notice of their legal rights and remedies. 
The notice must also include furnishing all victims of family violence 
a copy of the following statement:

    IF YOU ARE A VICTIM OF FAMILY VIOLENCE, you can ask the 
prosecutor to file a criminal complaint. You also have the right to 
go to court and file a petition requesting an order of protection 
from family violence. The order may include the following:
    (1) an order restraining the person who has committed a family 
violence act from further acts of family violence;
    (2) an order directing the person who has committed a family 
violence act to leave your household;
    (3) an order preventing the person who has committed a family 
violence act from entering your residence, school, business, or 
place of employment;
    (4) an order awarding you custody of or the other parent 
visitation with a minor child or children;
    (5) an order directing the person who has committed a family 
violence act to pay support to you and the minor children if the 
person who has committed an act of family violence has a legal 
obligation to do so;
    (6) an order directing the person who has committed a family 
violence act to account for your funds or property or to pay 
restitution for damages resulting from the wrongdoing;
    (7) an order directing the appropriate human services agency to 
deliver protective services and provide the least restrictive 
alternatives for services, care, treatment, or placement.

    Dated: June 6, 1996.
Ada E. Deer,
Assistant Secretary--Indian Affairs.
[FR Doc. 96-16039 Filed 7-3-96; 8:45 am]
BILLING CODE 4310-02-P