[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]
BILLING CODE 4310-02-P