[Federal Register Volume 62, Number 63 (Wednesday, April 2, 1997)]
[Rules and Regulations]
[Pages 15610-15614]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-8341]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 12
RIN 1076-AD56
Indian Country Law Enforcement
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Final rule.
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SUMMARY: The Bureau of Indian Affairs is establishing standards for
Bureau of Indian Affairs (BIA) and tribal law enforcement programs
receiving Federal funding or performing duties using a Federal law
enforcement commission. These regulations will ensure 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, Public Law
101-379 (25 U.S.C. 2801 et seq.).
EFFECTIVE DATE: These regulations take effect on May 2, 1997.
FOR FURTHER INFORMATION CONTACT: The Director, Office of Law
Enforcement Services at (505) 248-7937.
SUPPLEMENTARY INFORMATION: 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.
Indian Police and Detention Standards regulations were published in
1975 and 1976, respectively, and have not been updated. See 25 CFR 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 to be implemented as
rules by 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.
Law enforcement appears in Part 12, and Detention and Rehabilitation
appears 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 provide policy, procedures,
guidelines and standards for all law enforcement programs. The manual
and accompanying handbooks will be available to 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.
Review of Public Comments
The Nez Perce Tribe expressed several concerns with the proposed
rule, many relating to their anticipated contracting of their law
enforcement program under self-determination. This rule will not change
BIA's relationship with a tribe or any tribe's ability to self-govern.
This rule implements the Indian Law Enforcement Reform Act (Pub. L.
101-379) and suggests minimal professional standards for law
enforcement officers.
Each of the Nez Perce Tribe's comments are addressed here:
The tribe believes the local superintendent or chief law
[[Page 15611]]
enforcement officer should supervise the criminal investigator. Title
25 U.S.C. 2802 stipulates that all BIA criminal investigators must be
supervised only by other law enforcement officers of the Division of
Law Enforcement. The U.S. Department of Justice has expressed its
support for this concept. This does not affect any tribal or contracted
criminal investigator, as they are supervised locally.
The tribe feels the minimum guidelines do not ensure the best or
most adequate police protection. We agree. They are only the minimum
standards required for an officer commissioned by or operating under a
contract with the BIA. Tribes are encouraged to create their own
standards that exceed BIA standards if they desire. Tribes who have
contracted their program under self-determination procedures may still
determine their own needs and adopt policies reflecting these needs,
and adhering to these minimum professional standards should not
interfere with that process in any way. This rule only establishes the
minimum standards for training and qualifications which should be
expected of any professional law enforcement program. This is analogous
to any of the 50 United States, which have all adopted minimum
standards for their Police Officer Standards and Training (POST)
organizations. While each municipality within a State has total control
over its own police department, any law enforcement officer employed in
that department must meet at least the minimum standards established by
that State's POST commission. This rule serves a similar purpose.
The tribe expressed concern that performance, not compliance,
should be the basis for denying or rejecting funding for law
enforcement programs. We believe the two concepts are directly related.
It would not be reasonable to expect an untrained or otherwise
unqualified law enforcement officer to perform his/her duties at an
adequate level. Local community residents should certainly expect
officers working in their community to be professional and to meet at
least these minimum standards.
The tribe asks for specifics on how the BIA will interpret tribal
law. This rule requires tribal permission for BIA officers to enforce
tribal law, and encourages local arrangements and agreements. We firmly
believe these decisions should be made at the local level whenever
possible.
The tribe expressed its belief that tribes should manage their own
budgets. We agree, and nothing in this rule would prevent that.
The tribe commented on the requirement for a successful background
investigation on law enforcement officers by indicating tribes should
be able to make law enforcement program decisions based on their own
unique needs. We agree, but do not believe that should include
employing a law enforcement officer with a criminal history or who is
otherwise unsuitable as a law enforcement officer. We believe the
successful completion of a background investigation is an entirely
reasonable requirement for any law enforcement officer in any
jurisdiction. Again, this reflects similar standards adopted by all 50
United States, and mirrors requirements in the Reform Act. The
Department of Justice has expressed its support for this concept, and
included this requirement in the agreement between the Attorney General
and Secretary of the Interior regarding the investigation and
prosecution of crime in Indian country.
The tribe expressed a belief that any reasonable code of conduct
can work, but it must be enforced consistently. We agree.
The tribe stated its belief that BIA should monitor officer
misconduct; that if the tribe is the supervisor, it must have the
ability to impose sanctions for misconduct; and that BIA should provide
investigative assistance and support. We agree with the tribe on these
issues and this rule supports the tribe fully in this regard.
Many of the tribe's comments are directed at some of the basic
concepts of the Indian Law Enforcement Reform Act, specifically
establishment of standards for law enforcement officers and procedures
for the professional supervision of BIA criminal investigators. BIA is
extremely sensitive to these concerns and will continue to work closely
with all tribes on a government-to-government basis on law enforcement
and other issues.
Evaluation and Certification
Executive Order 12988
The Department has determined that this rule meets the applicable
standards provided in sections 3(a) and 3(b)(2) of Executive Order
12988.
Executive Order 12866
This rule is not a significant regulatory action under Executive
Order 12866.
Regulatory Flexibility Act
This 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 rule does not have
significant takings implications. The rule does not pertain to
``taking'' of private property interests, nor does it affect private
property.
Executive Order 12612
The Department has determined that this 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 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 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 revised to read as follows:
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
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?
[[Page 15612]]
12.14 Where can I find specific policies and standards for law
enforcement functions in Indian country?
Subpart C--Authority and Jurisdiction
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
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
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
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?
Subpart G--Support Functions
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 Commissioner of Indian Affairs, or in the absence of a
Commissioner, the Deputy Commissioner, 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 Services?
The Director of the Office of Law Enforcement Services for the
Bureau of Indian Affairs (Director) has been delegated the
responsibility for the development of law enforcement and detention
policies, standards, and management of all Bureau of Indian Affairs
(BIA) 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 BIA 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 BIA 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 BIA or tribal law enforcement program
receiving Federal funding or operating under a BIA 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 (Pub. L. 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 ensure compliance
with minimum Federal standards, and to identify necessary changes or
improvements to BIA policies.
Sec. 12.13 What happens if I do not follow the rules in this part?
Your BIA 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?
BIA 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?
BIA law enforcement officers are commissioned under the authority
established in 25 U.S.C. 2803. BIA may issue law enforcement
commissions to other Federal, State, local and tribal full-time
certified law enforcement officers to obtain active assistance in
enforcing applicable Federal criminal statutes, including Federal
hunting and fishing regulations, in Indian country.
(a) BIA will issue commissions to other Federal, State, local and
tribal full-time certified law enforcement officers only after the head
of the local government or Federal agency completes an agreement with
the Commissioner of Indian Affairs asking that BIA issue delegated
commissions. The agreement must include language that allows the BIA to
evaluate the effectiveness of these special law enforcement commissions
and to investigate any allegations of misuse of authority.
(b) Tribal law enforcement officers operating under a BIA contract
or compact are not automatically
[[Page 15613]]
commissioned as 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?
BIA officers will enforce tribal laws only 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. Any law enforcement
programs performing duties under the authority of 25 U.S.C. 2803 must
follow the guidelines in the memorandum of understanding and any local
United States Attorney's guidelines for the investigation and
prosecution of Federal crimes.
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 BIA 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. BIA standards are available for review at any BIA personnel
office. All tribal programs are encouraged to develop standards at
least as stringent as those established for BIA 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?
An officer's pay is determined by his/her grade and classification.
The Commissioner of Indian Affairs must ensure that all BIA 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 BIA position performing commissioned
law enforcement duties will be classified in other than the 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 BIA 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 BIA 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 use personnel before completing the required courses of
instruction must be submitted to the Director and approved or
disapproved by the Commissioner of Indian Affairs. In no case will such
a waiver allow personnel to be used 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 BIA 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 BIA 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 BIA criminal
investigations program, and any investigations program receiving BIA
funds 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 ongoing 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
in writing receiving and understanding of this code of conduct. The
acknowledgment 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 that
allows any resident of or visitor to Indian country to report officer
misconduct. Each law enforcement program in Indian country will
maintain
[[Page 15614]]
instructions on how to register a complaint. An overview of these steps
must 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 that investigates all allegations of
misconduct by BIA officers, and any officer receiving funding and/or
authority from the BIA. 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 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 BIA 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 ensure that
allegations are immediately reported to the Civil Rights Division of
the U. S. Department of Justice through established procedures. BIA's
internal affairs unit may also investigate 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 BIA law enforcement personnel, and for programs receiving BIA
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 before
carrying a firearm on or off duty.
Subpart G--Support Functions
Sec. 12.61 Can I be paid for information that helps solve a crime?
The Director can spend money to purchase 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 BIA. The Director must develop policies and
procedures for the expenditure, control, and audit of these funds
before 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 its own uniform
requirements for patrol and detention personnel. Uniformed BIA 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: March 24, 1997.
Ada E. Deer,
Assistant Secretary--Indian Affairs.
[FR Doc. 97-8341 Filed 4-1-97; 8:45 am]
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