[Federal Register Volume 61, Number 130 (Friday, July 5, 1996)]
[Proposed Rules]
[Pages 35163-35167]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16040]


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DEPARTMENT OF THE INTERIOR
25 CFR Part 12

RIN 1076-AD56


Indian Country Law Enforcement

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Proposed Rule.

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SUMMARY: The Bureau of Indian Affairs is proposing to establish 
standards for Bureau of Indian Affairs (BIA) and tribal law enforcement 
programs receiving Federal funding or performing duties using a cross 
commission. These regulations will insure that law enforcement, crime 
prevention and recidivism reduction programs are implemented and 
maintained in a constitutionally sound manner and comply with the 
Indian Law Enforcement Reform Act of 1990, Pub. L. 101-379 (25 U.S.C. 
2801 et seq.).

DATES: Comments must be received on or before September 3, 1996.
    Comments will be available for inspection at the address below from 
9:00 a.m. to 4:00 p.m., Monday through Friday beginning approximately 
July 19, 1996.

ADDRESSES: Mail comments to Theodore R. Quasula, Director of Law 
Enforcement Services, Bureau of Indian Affairs, 1849 C Street, NW, Mail 
Stop 4443, Washington, D.C., 20240; OR, hand deliver them to Room 4443 
at the above address.

FOR FURTHER INFORMATION CONTACT: Theodore R. Quasula, Director of Law

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Enforcement Services, Bureau of Indian Affairs, Telephone: 202-208-
5786.

SUPPLEMENTARY INFORMATION:

Background

    The authority to issue rules and regulations is vested in the 
Secretary of the Interior by 5 U.S.C. 301 and sections 463 and 465 of 
the Revised Statutes, 25 U.S.C. 2 and 9.
    What has provided Law Enforcement rules and standards for Bureau of 
Indian Affairs and tribal programs in the past?
    Indian Police and Detention Standards regulations were published in 
1975 and 1976, respectively, and have not been updated. See 25 U.S.C. 
Part 12. In 1990, the Indian Law Enforcement Reform Act (Pub. L. 101-
379, 25 U.S.C. 2801 et seq.) specified changes for the Bureau of Indian 
Affairs and tribal law enforcement and detention programs that need to 
be implemented as rules of the Secretary of the Interior who was given 
the overall responsibility for providing, or assisting in the provision 
of law enforcement services in Indian country (as defined in 18 U.S.C. 
1151). The law enforcement revision will be assigned to Part 12, and 
Detention and Rehabilitation will be found in Part 10, Chapter I of 
Title 25 Code of Federal Regulations.
    The Office of Law Enforcement Services, Bureau of Indian Affairs, 
is updating and revising the Bureau of Indian Affairs Manual (BIAM), 
and accompanying operational handbooks that will provide policy, 
procedures, guidelines and standards for all law enforcement programs. 
This manual and accompanying handbooks will be available for the 
program managers and supervisors, the public, other agencies, and law 
enforcement officers or investigators. Self-governance tribes with 
compacts or other tribal entities with enforcement jurisdiction other 
than the Bureau of Indian Affairs or contracts, are encouraged to use 
the manuals and handbooks for guidance in developing or maintaining 
their own programs. The Indian Country Detention Facilities and 
Programs manuals and handbooks may be found in Chapter 69 Bureau of 
Indian Affairs Manual (BIAM) including an inmate handbook for all 
individuals who are incarcerated in a BIA or tribal detention facility.

Evaluation and Certification

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 author of this document is Mark Mullins, Bureau of 
Indian Affairs, Office of Law Enforcement Services.

List of Subjects in 25 CFR Part 12

    Indians--residential and holding facilities, Law enforcement.

    For the reasons given in the preamble, Part 12, Chapter I of Title 
25 of the Code of Federal Regulations is proposed to be revised as set 
forth below:

PART 12--INDIAN COUNTRY LAW ENFORCEMENT

Subpart A--Responsibilities

Sec.
12.1  Who is responsible for the Bureau of Indian Affairs law 
enforcement function?
12.2  What is the role of the Bureau of Indian Affairs Director of 
Law Enforcement Services?
12.3  Who supervises Bureau of Indian Affairs criminal 
investigators?
12.4  Who Supervises the Bureau of Indian Affairs uniformed police, 
detention and conservation enforcement functions?

Subpart B--Policies and Standards

Sec.
12.11  Do I have to follow these regulations?
12.12  What about self-determination?
12.13  What happens if I do not follow the rules in this part?
12.14  Where can I find specific policies and standards for law 
enforcement functions in Indian country?

Subpart C--Authority and Jurisdiction

Sec.
12.21  What authority is given to Indian country law enforcement 
officers to perform their duties?
12.22  Can Bureau of Indian Affairs law enforcement officers enforce 
tribal laws?
12.23  What are the jurisdictional limits in Indian country?

Subpart D--Qualifications and Training Requirements

Sec.
12.31  Are there any minimum employment standards for Indian country 
law enforcement personnel?
12.32  Do minimum employment standards include a background 
investigation?
12.33  Are Indian country law enforcement officers paid less than 
other law enforcement officers?
12.34  Do minimum salaries and position classifications apply to a 
tribe that has contracted or compacted law enforcement under self-
determination?
12.35  Do Indian country law enforcement officers complete any 
special training?
12.36  Does other law enforcement training count?

Subpart E--Records and Information

Sec.
12.41  Who keeps statistics for Indian country law enforcement 
activities?
12.42  Do Indian country law enforcement programs share information 
with their own communities or other agencies?

Subpart F--Conduct

Sec.
12.51  Must Indian country law enforcement officers follow a code of 
conduct?
12.52  How do I report misconduct?
12.53  Who investigates officer misconduct?
12.54  What can I do if I believe my civil rights have been 
violated?
12.55  Are there any limits on how much force an officer can use 
when performing law enforcement duties?

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Subpart G--Support Functions

Sec.
12.61  Can I be paid for information that helps solve a crime?
12.62  Who decides what uniform an Indian country law enforcement 
officer can wear and who pays for it?
12.63  Do Indian country law enforcement officers perform other 
duties as well?

    Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 13, 2417, 2453, and 
2802.

Subpart A--Responsibilities


Sec. 12.1  Who is responsible for the Bureau of Indian Affairs law 
enforcement function?

    The Deputy Commissioner of Indian Affairs is responsible for Bureau 
of Indian Affairs operated and contracted law enforcement programs, and 
for overall policy development and implementation of the Indian Law 
Enforcement Reform Act, Public Law 101-379 (25 U.S.C. 2801 et seq.).


Sec. 12.2  What is the role of the Bureau of Indian Affairs Director of 
Law Enforcement Service?

    The Director of the Office of Law Enforcement Services for the 
Bureau of Indian Affairs (Director) has been designed as the single 
individual responsible for the overall law enforcement and detention 
policies and standards, and management of all Bureau of Indian Affairs 
criminal investigations, drug enforcement, training, internal affairs, 
inspection and evaluation, emergency response forces, and other 
national level Indian country law enforcement initiatives. The Director 
publishes these policies and standards in law enforcement manuals and 
handbooks. The Director is also directly responsible for developing 
crime prevention and outreach programs within Indian country law 
enforcement.


Sec. 12.3  Who supervises Bureau of Indian Affairs criminal 
investigators?

    All Bureau of Indian Affairs criminal investigators are supervised 
by other criminal investigators within the Office of Law Enforcement 
Services.


Sec. 12.4  Who supervises the Bureau of Indian Affairs uniformed 
police, detention and conservation enforcement functions?

    The agency superintendent is directly responsible for the operation 
and management of Bureau of Indian Affairs uniformed police operations, 
detention facilities, and conservation enforcement operations at any 
agency having these programs. The agency superintendent must also 
ensure technical support is provided to any agency contracting the law 
enforcement and/or detention program.

Subpart B--Policies and Standards


Sec. 12.11  Do I have to follow these regulations?

    You must follow the minimum standards outlined in the regulations 
in this part if you are part of a Bureau of Indian Affairs or tribal 
law enforcement program receiving Federal funding or operating under a 
Bureau of Indian Affairs law enforcement commission.


Sec. 12.12  What about self-determination?

    The regulations in this part are not intended to discourage 
contracting of Indian country law enforcement programs under the Indian 
Self-determination and Education Assistance Act (Public Law 93-638, as 
amended, 25 U.S.C. 450). The Deputy Commissioner of Indian Affairs will 
ensure minimum standards are maintained in high risk activities where 
the Federal government retains liability and the responsibility for 
settling tort claims arising from contracted law enforcement programs. 
It is not fair to law abiding citizens of Indian country to have 
anything less than a professional law enforcement program in their 
community. Indian country law enforcement programs that receive Federal 
funding and/or commissioning will be subject to a periodic inspection 
or evaluation to provide technical assistance, to insure compliance 
with minimum Federal standards, and to identify necessary changes or 
improvements to Bureau of Indian Affairs policies.


Sec. 12.13  What happens if I do not follow the rules in this part?

    Your Bureau of Indian Affairs law enforcement commission may be 
revoked, your law enforcement contract may be canceled, and you may no 
longer be eligible for tribal shares allocated from the law enforcement 
budget.


Sec. 12.14  Where can I find specific policies and standards for law 
enforcement functions in Indian country?

    The Bureau of Indian Affairs will ensure that all Indian country 
law enforcement programs are provided a copy of the most current policy 
manuals and handbooks. Every Indian country law enforcement program 
covered by the regulations in this part must maintain an effective and 
efficient law enforcement program meeting minimal qualitative standards 
and procedures specified in Chapter 68 Bureau of Indian Affairs Manual 
(BIAM) and the Law Enforcement Handbook.

Subpart C--Authority and Jurisdiction


Sec. 12.21  What authority is given to Indian country law enforcement 
officers to perform their duties?

    Bureau of Indian Affairs law enforcement officers are commissioned 
under the authority established in Title 28 U.S.C. 2803. The Bureau of 
Indian Affairs may issue law enforcement commissions to other Federal, 
State, local and tribal full-time certified law enforcement officers to 
obtain active assistance in the enforcement of applicable Federal 
criminal statutes, including Federal hunting and fishing regulations in 
Indian country. Any such deputization of personnel not employed by the 
Bureau of Indian Affairs will only be issued after an agreement is 
completed between the head of the local government or Federal agency 
requesting the authority and the Deputy Commissioner of Indian Affairs. 
Any such agreement will include language that allows the Bureau of 
Indian Affairs to evaluate the effectiveness of such delegated 
commissions and to investigate any allegations of misuse of authority 
involving these commissions. Tribal law enforcement officers operating 
under a Bureau of Indian Affairs contact or compact are not 
commissioned Federal officers; however, they may be commissioned on a 
case-by-case basis.


Sec. 12.22  Can Bureau of Indian Affairs law enforcement officers 
enforce tribal laws?

    Bureau of Indian Affairs officers will only enforce tribal laws 
with the permission of the tribe. Local programs are encouraged to make 
arrangements and agreements with local jurisdictions to facilitate law 
enforcement objectives.


Sec. 12.23  What are the jurisdictional limits in Indian country?

    The Department of the Interior and the Department of Justice must 
maintain and periodically review and update a memorandum of 
understanding describing the relationship between the Federal Bureau of 
Investigation and the Bureau of Indian Affairs in the investigation and 
prosecution of major crimes in Indian country. The guidelines in this 
memorandum of understanding and any local United States Attorney's 
guidelines for the investigation and prosecution of Federal crimes will 
be followed by any law enforcement programs performing duties or under 
the authority of 25 U.S.C. 2803.

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Subpart D--Qualifications and Training Requirements


Sec. 12.31  Are there any minimum employment standards for Indian 
country law enforcement personnel?

    The Director must develop, maintain, and periodically review the 
qualification standards, including medical qualification standards, for 
all Bureau of Indian Affairs law enforcement, detention and 
conservation enforcement occupational series. The standards will be no 
less stringent than the minimum standards established by the U.S. 
Office of Personnel Management (OPM) for these occupational series, and 
may exceed the OPM standards. The Bureau of Indian Affairs standards 
are available for review at any Bureau of Indian Affairs personnel 
office. All tribal programs are encouraged to develop standards at 
least as stringent as those established for Bureau of Indian Affairs 
officers.


Sec. 12.32  Do minimum employment standards include a background 
investigation?

    Law enforcement authority is only entrusted to personnel possessing 
adequate education and/or experience, training, aptitude, and high 
moral character. All Indian country law enforcement programs receiving 
Federal funding and/or authority must ensure that all law enforcement 
officers successfully complete a thorough background investigation no 
less stringent than required of a Federal officer performing the same 
duties. The background investigations of applicants and employees must 
be adjudicated by trained and qualified security professionals. All 
background investigations must be documented and available for 
inspection by the Bureau of Indian Affairs.


Sec. 12.33  Are Indian country law enforcement officers paid less than 
other law enforcement officers?

    The Deputy Commissioner of Indian Affairs must insure that all 
Bureau of Indian Affairs law enforcement officer positions are 
established at no lower grade level on the Federal scale than similar 
Federal law enforcement officer positions in other agencies. No Bureau 
of Indian Affairs position performing commissioned law enforcement 
duties will be classified in other than GS 0083, police officer series, 
for uniformed officers and the GS 1811, criminal investigating series, 
for criminal investigators.


Sec. 12.34   Do minimum salaries and position classifications apply to 
a tribe that has contracted or compacted law enforcement under self-
determination?

    Any contract or compact with the Bureau of Indian Affairs to 
provide law enforcement services for an Indian tribe must require a law 
enforcement officer to be paid at least the same salary as a Bureau of 
Indian Affairs officer performing the same duties.


Sec. 12.35  Do Indian country law enforcement officers complete any 
special training?

    Law enforcement personnel of any program funded by the Bureau of 
Indian Affairs must not perform law enforcement duties until they have 
successfully completed a basic law enforcement training course 
prescribed by the Director. The Director will also prescribe mandatory 
supplemental and in-service training courses.


Sec. 12.36  Does other law enforcement training count?

    All requests for evaluation of equivalent training must be 
submitted to the Indian Police Academy for review, with final 
determination made by the Director. Requests for a waiver of training 
requirements to utilize personnel prior to completing the required 
courses of instruction must be submitted to the Director and approved 
or disapproved by the Deputy Commissioner of Indian Affairs. In no case 
will such a waiver allow personnel to be utilized in any position for 
more than one year without achieving training standards. Failure to 
complete basic training requirements will result in removal from a law 
enforcement position.

Subpart E--Records and Information


Sec. 12.41  Who keeps statistics for Indian country law enforcement 
activities?

    The Director maintains a criminal justice information system for 
Indian country. The Director will prescribe the types of data to be 
collected and the reporting format to be used to collect information 
and assemble reports on crime reported in Indian country. These reports 
may be provided to the Department of Justice. Any law enforcement 
program receiving funding from the Bureau of Indian Affairs must use 
the same reporting format and submit the same statistical reports to 
the Office of Law Enforcement Services as prescribed by the Director 
and as are required of all Bureau of Indian Affairs law enforcement 
programs.


Sec. 12.42  Do Indian country law enforcement programs share 
information with their own communities or other agencies?

    At intervals established by the Director, each Bureau of Indian 
Affairs criminal investigations program, and any investigations program 
receiving funds from the Bureau of Indian Affairs will consult with 
local tribal leaders and managers of local patrol and detention 
programs. They will discuss the quality of the local investigations 
program and offer feedback and technical assistance. There will be no 
requirement to disclose confidential investigative information or to 
compromise on-going investigations during this process.

Subpart F--Conduct


Sec. 12.51  Must Indian country law enforcement officers follow a code 
of conduct?

    All law enforcement programs receiving Bureau of Indian Affairs 
funding or commissioning must establish a law enforcement code of 
conduct which establishes specific guidelines for conduct on and off 
duty, impartiality and professional conduct in the performance of duty, 
and acceptance of gifts or favors. Each officer must acknowledge 
receipt and understanding of this code of conduct in writing and it 
will remain on file with the law enforcement program manager as long as 
the officer is employed there. Training will be conducted on this code 
of conduct and other ethics issues at least once each year.


Sec. 12.52  How do I report misconduct?

    The Director will develop and maintain a reporting system which 
allows any resident of or visitor to Indian country to report officer 
misconduct. Each law enforcement program in Indian country will 
maintain instructions on how to register a complaint. An overview of 
these steps will be posted for public viewing at each law enforcement 
facility in Indian country.


Sec. 12.53  Who investigates officer misconduct?

    The Director, Office of Law Enforcement Services maintains an 
internal affairs program which investigates all allegations of 
misconduct by Bureau of Indian Affairs officers, and any officer 
receiving funding and/or authority from the Bureau of Indian Affairs. 
All allegations of misconduct must be thoroughly investigated and 
appropriate action taken when warranted. Any person having knowledge of 
officer misconduct must report that information to the officer's 
supervisor. The supervisor

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must immediately report allegations to the internal affairs unit. 
Depending upon the severity of the allegation, the matter may be dealt 
with locally or it will be investigated by the internal affairs unit. 
Failure of any Bureau of Indian Affairs employee to report known 
allegations may be considered misconduct in itself. Citizens may report 
officer misconduct directly to the internal affairs unit if that is 
more practical.


Sec. 12.54  What can I do if I believe my civil rights have been 
violated?

    All allegations of civil rights violations must be reported 
immediately to the internal affairs unit. That office will insure such 
allegations are immediately reported to the Civil Rights Division of 
the U. S. Department of Justice through established procedures. The 
Bureau of Indian Affairs internal affairs unit may also conduct an 
investigation into the matter and make recommendations for additional 
action as necessary.


Sec. 12.55  Are there any limits on how much force an officer can use 
when performing law enforcement duties?

    The Director will develop and maintain the use of force policy for 
all Bureau of Indian Affairs law enforcement personnel, and for 
programs receiving Bureau of Indian Affairs funding or authority. 
Training in the use of force, to include non-lethal measures, will be 
provided annually. All officers will successfully complete a course of 
instruction in firearms, to include judgement pistol shooting, approved 
by the Indian Police Academy prior to carrying a firearm on or off 
duty.

Subpart G--Support Functions


Sec. 12.61  Can informants be paid for information that helps solve a 
crime?

    The Director has the authority to expend money for the purchase of 
evidence or information, or to offer a reward, in the investigation of 
a crime. This is subject to the availability of funds. This authority 
may be delegated in writing to supervisory criminal investigators 
within the Office of Law Enforcement Services in the Bureau of Indian 
Affairs. The Director must develop policies and procedures for the 
expenditure, control, and audit of these funds prior to their use.


Sec. 12.62  Who decides what uniform an Indian country law enforcement 
officer can wear and who pays for it?

    Each local law enforcement program must establish their own uniform 
requirements for patrol and detention personnel. Uniformed Bureau of 
Indian Affairs police officers may be paid an annual uniform allowance 
not to exceed $400. Local programs may provide uniforms and related 
equipment to officers in lieu of this payment. All law enforcement 
officers must also have their official identification on their person 
at all times when performing law enforcement duties. Uniforms, when 
worn, will be plainly distinguishable from the uniforms of any non-law 
enforcement personnel working on the reservation.


Sec. 12.63  Do Indian country law enforcement officers perform other 
duties as well?

    Law enforcement commissions will only be issued by the Bureau of 
Indian Affairs to persons occupying positions as full-time officers. 
Bureau of Indian Affairs funded or commissioned criminal investigators 
will not be responsible for supervising or managing any patrol, 
detention, or other uniformed police programs.

    Dated: May 31, 1996.
Ada E. Deer,
Assistant Secretary--Indian Affairs.
[FR Doc. 96-16040 Filed 7-03-96; 8:45 am]
BILLING CODE 4310-02-P