[Federal Register Volume 66, Number 181 (Tuesday, September 18, 2001)]
[Rules and Regulations]
[Pages 48085-48087]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-23198]



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  Federal Register / Vol. 66, No. 181 / Tuesday, September 18, 2001 / 
Rules and Regulations  

[[Page 48085]]



DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 11

RIN 1076-AE 19


Law and Order on Indian Reservations

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Temporary final rule and request for comments.

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SUMMARY: The Bureau of Indian Affairs (BIA) is amending its regulations 
to add the Paiute-Shoshone Indian Tribe of the Fallon Reservation and 
Colony (Western Region, Nevada) to the listing of Courts of Indian 
Offenses. This amendment will establish a Court of Indian Offenses for 
a period not to exceed one year. It is necessary to establish a Court 
of Indian Offenses with jurisdiction over the Paiute-Shoshone Indian 
Tribe of the Fallon Reservation and Colony in order to protect lives 
and property.

DATES: This rule is effective on September 18, 2001 and expires on 
September 18, 2002. Comments must be received on or before November 19, 
2001.

ADDRESSES: Send comments on this rule to Ralph Gonzales, Office of 
Tribal Services, Bureau of Indian Affairs, 1849 C Street NW., MS 4660, 
Washington, DC 20240.

FOR FURTHER INFORMATION CONTACT: Sharlot Johnson, Tribal Government 
Officer, Western Regional Office, Bureau of Indian Affairs, 400 N. 
Fifth Street, Phoenix, Arizona, 85004, at (602) 379-6786 
[[email protected]]; or Ralph Gonzales, Branch of Judicial 
Services, Office of Tribal Services, Bureau of Indian Affairs, 1849 C 
Street NW, MS 4660, Washington, DC 20240, at (202) 208-4401 
[[email protected]].

SUPPLEMENTARY INFORMATION: The authority to issue this rule 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 authorizes appropriations for ``Indian 
judges.'' See Tillett v. Hodel, 730 F. Supp. 381 (W.D. Okla. 1990), 
aff'd, 931 F.2d 636 (10th Cir. 1991) United States v. Clapox, 13 Sawy. 
349, 35 F. 575 (D. Ore. 1888). This rule is published in exercise of 
the rulemaking authority delegated by the Secretary of the Interior to 
the Assistant Secretary--Indian Affairs. The Paiute-Shoshone Indian 
Tribe of the Fallon Reservation and Colony's reservation is held by the 
Federal Government in trust for the Tribe's benefit which establishes 
federal Indian criminal jurisdiction over the Paiute-Shoshone Tribe of 
the Fallon Reservation and Colony to wit:

    In general--The land described in this subsection is the tract 
of land, located in the city and county of Churchill, Nevada, upon 
which the Paiute-Shoshone Indian Tribe of the Fallon Reservation and 
Colony is located and more particularly described as all that 
certain real property, the SE\1/4\ of Section 8, the S\1/2\ of 
Sections 9 & 10 and Sections 15, 16, 17, 20, 21, & 22 Township 19 
North, Range 30 East, MDB&M, Nevada containing 4,640 acres in 
accordance with Department Order dated April 20, 1907. N\1/2\ 
Section 9, N\1/2\ of Section 10, SE\1/4\ Section 3 & NW\1/4\NW\1/4\ 
Section 20 Township 19 North, Range 30 East, MDB&M, Nevada 
containing 840 acres more or less pursuant to Department Order dated 
November 21, 1917. Pursuant to PL 95-337 dated August 4, 1978, the 
S\1/2\NW\1/4\NW\1/4\ & SW\1/4\NW\1/4\ Section 29, NW\1/4\ Section 2, 
N\1/2\ & SW\1/4\ Section 3, all section 4, N\1/2\ & SW\1/4\ Section 
8, S\1/2\ Section 33, S\1/2\ Section 34, W\1/2\SE\1/4\ & SW\1/4\ 
Section 35, Township 19 North, Range 30 East, MDB&M, Nevada, 
containing 2,700 acres more or less. SW\1/4\NW\1/4\ Section 29, 
Township 19 North, Range 29 East, MDB&M, Nevada pursuant to 
Department Order dated August 13, 1917, containing 40 acres more or 
less. S12NW\1/4\NW\1/4\ Section 29, Township 19 North, Range 29 
East, MDB&M, Nevada withdrawn on March 4, 1958 in aid of 
legislation, containing 20 acres more or less.

    The following described property (37.38 acres) was purchased by the 
Fallon Tribe pursuant to Public Law 101-618 and taken into trust on 
October 29, 1997, by the Phoenix Area Director:

    Commencing at the south quarter corner of Section 30, Township 
19 North, Range 29 East, MDB&M, thence North 02 deg.09' West a 
distance of 95.1 feet to the East boundary of the Southern Pacific 
right-of-way spur track; thence North 00 deg.19' West along said 
East Boundary a distance of 209 feet to the Northwest corner of a 
parcel described in deed to Standard Oil Company as found recorded 
in Book 12 of Deeds, page 193 of Churchill County Records, Fallon, 
Nevada; thence North 00 deg.19' West along said railroad boundary a 
distance of 416 feet to the beginning of a curve on the East 
boundary; thence Northeasterly along said curve concave to the 
Southeast a distance of 992 feet to the South boundary of the main 
tract right-of-way; thence East along the South boundary of said 
Southern Pacific Railroad right-of-way a distance of 2113 feet to 
the East line of said Section 30; thence South along the East line 
of said Section 30 a distance of 1257 feet to the North Boundary of 
U.S. Highway #50; thence West along the North boundary of said 
Highway a distance of 2521 feet to the Southeast corner of a parcel 
described in deed to above said Standard Oil Company; thence North 
along East boundary of said parcel a distance of 264 feet to the 
Northeast corner of said parcel; then West a distance of 165 feet to 
the true point of beginning. Excepting therefrom the SE\1/4\ of the 
SE\1/4\ of Section 30, Township 19 North, Range 29 East, MDB&M.

    A provisional Court of Indian Offenses must be established for the 
Paiute-Shoshone Indian Tribe of the Fallon Reservation and Colony to 
protect the lives, persons, and property of people residing at or 
visiting the Paiute-Shoshone Indian Tribe of the Fallon Reservation and 
Colony, until the Secretary determines that enforcement of the criminal 
offenses contained in Part 11 of the Code of Federal Regulations is no 
longer justified. This court will function for a period not to exceed 
one year. Judges of the Court of Indian Offenses will be authorized to 
exercise all the authority provided under 25 CFR part 11 and the Indian 
Law Enforcement Reform Act, 25 U.S.C. 2803(2) (1998). This final rule 
is intended to establish a provisional Court of Indian Offenses.

Determination To Issue a Final Rule

    The Department has determined that the public notice and comment 
provisions of the Administrative Procedure Act, 5 U.S.C. 553(b), do not 
apply because of the good cause exception under 5 U.S.C. 553(b)(3)(B), 
which allows the agency to suspend the notice and public procedure when 
the agency finds for good cause that those requirements are 
impractical, unnecessary and contrary to the public interest. This 
amendment will establish a provisional Court of Indian Offenses for the 
Paiute-Shoshone Indian Tribe of the Fallon Reservation and Colony. If 
this provisional court is not established, there is a potential risk to 
public safety

[[Page 48086]]

and a further risk of exposure of the Federal Government to a lawsuit 
for failure to execute diligently its trust responsibility and provide 
adequate judicial services for law enforcement on trust land. Delaying 
this rule to solicit public comment through the proposed rulemaking 
process would thus be contrary to the public interest.

Determination To Make Rule Effective Immediately

    We are making the rule effective on the date of publication in the 
Federal Register as allowed under the good cause exception in 5 U.S.C. 
553(d)(3). Delaying the effective date of this rule is unnecessary and 
contrary to the public interest because there is a critical need to 
expedite establishment of this Court of Indian Offenses. The Bureau of 
Indian Affairs Law Enforcement Services has reassumed the Law 
Enforcement Program from the Paiute-Shoshone Indian Tribe of the Fallon 
Reservation and Colony, and a CFR Court is necessary as a judicial 
forum within the reservation for the adjudication of criminal cases. 
For these reasons, an immediate effective date is in the public 
interest and in the interest of the Tribe. Accordingly, this amendment 
is issued as a final rule effective immediately. We invite comments on 
any aspect of this rule and we will revise the rule if comments 
warrant. Send comments on this rule to the address in the ADDRESSES 
section.

Regulatory Planning and Review (Executive Order 12866)

    In accordance with the criteria in Executive Order 12866, this rule 
is not a significant regulatory action. OMB makes the final 
determination under Executive Order 12866.
    (a) This rule will not have an annual economic effect of $100 
million or adversely affect an economic sector, productivity, jobs, the 
environment, or other units of government. A cost-benefit and economic 
analysis is not required. The establishment of this Court of Indian 
Offenses is estimated to cost less than $200,000 annually to operate. 
The cost associated with the operation of this court will be with the 
Bureau of Indian Affairs.
    (b) This rule will not create inconsistencies with other agencies' 
actions. The Department of the Interior, through the Bureau of Indian 
Affairs, has the sole responsibility and authority to establish Courts 
of Indian Offenses on Indian reservations.
    (c) This rule will not materially affect entitlements, grants, user 
fees, loan programs, or the rights and obligations of their recipients. 
The establishment of this Court of Indian Offenses will not affect any 
program rights of the Paiute-Shoshone Indian Tribe of the Fallon 
Reservation and Colony. Its primary function will be to administer 
justice for misdemeanor offenses within the Tribe's reservation and 
colony. The court's jurisdiction will be exercised as provided in 25 
CFR part 11.
    (d) This rule will not raise novel legal or policy issues. The 
Solicitor analyzed and upheld the Department of the Interior's 
authority to establish Courts of Indian Offenses in a memorandum dated 
February 28, 1935. The Solicitor found that authority to rest 
principally in the statutes placing supervision of the Indians in the 
Secretary of the Interior, 25 U.S.C. 2 and 9, and 25 U.S.C. 13, which 
authorizes appropriations for ``Indian judges.'' The United States 
Supreme Court recognized the authority of the Secretary to promulgate 
regulations with respect to Courts of Indian Offenses in United States 
v. Clapox, 35 F. 575 (D. Ore. 1888).

Regulatory Flexibility Act

    The Department of the Interior, BIA, certifies that this rule will 
not have a significant economic effect on a substantial number of small 
entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601 
et seq.). An initial Regulatory Flexibility Analysis is not required. 
Accordingly, a Small Entity Compliance Guide is not required. The 
amendment to 25 CFR 11.100(a) will establish a Court of Indian Offenses 
with limited criminal jurisdiction over Indians within a limited 
geographical area at Fallon, Nevada. Accordingly, there will be no 
impact on any small entities.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule:
    (a) Does not have an annual effect on the economy of $100 million 
or more. The establishment of this Court of Indian Offenses is 
estimated to cost less than $200,000 annually to operate. The cost 
associated with the operation of this court will be with the Bureau of 
Indian Affairs.
    (b) Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions. This is a Secretarial court 
established specifically for the administration of misdemeanor justice 
for Indians located within the boundaries of the Paiute-Shoshone Indian 
Tribe of the Fallon Reservation and Colony and will not have any cost 
or price impact on any other entities in the geographical region.
    (c) Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
United States-based enterprises to compete with foreign-based 
enterprises. This is a Secretarial court established specifically for 
the administration of misdemeanor justice for Indians located within 
the boundaries of the Paiute-Shoshone Indian Tribe of the Fallon 
Reservation and Colony, Fallon, Nevada, and will not have an adverse 
impact on competition, investment, productivity, innovation, or the 
ability of United States-based enterprises to compete with foreign-
based enterprises.

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.):
    (a) This rule will not ``significantly or uniquely'' affect small 
governments. A Small Government Agency Plan is not required. The 
establishment of this Court of Indian Offenses will not have 
jurisdiction to affect any rights of the small governments. Its primary 
function will be to administer justice for misdemeanor offenses within 
the Fallon Indian Reservation and Colony. Its jurisdiction will be 
limited to criminal offenses provided in 25 CFR part 11.
    (b) This rule will not produce a Federal mandate of $100 million or 
greater in any year; i.e., it is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act.

Takings Implication Assessment (Executive Order 12630)

    In accordance with Executive Order 12630, this rule does not have 
significant takings implications. A takings implication assessment is 
not required. The amendment to 25 CFR part 11.100(a) will establish a 
Court of Indian Offenses with limited criminal jurisdiction over 
Indians within a limited geographical area at Fallon, Nevada on a 
temporary basis. Accordingly, there will be no jurisdictional basis for 
the CFR Court to affect adversely any property interest because the 
court's jurisdiction is limited to personal jurisdiction over Indians.

Federalism (Executive Order 13132)

    In accordance with Executive Order 13132, this rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. The Solicitor found that authority to rest principally in the 
statutes placing

[[Page 48087]]

supervision of the Indians in the Secretary of the Interior, 25 U.S.C. 
2 and 9; and 25 U.S.C. 13, which authorizes appropriations for ``Indian 
judges.'' The United States Supreme Court recognized the authority of 
the Secretary to promulgate regulations with respect to Courts of 
Indian Offenses in United States v. Clapox, 35 F. 575 (D. Ore. 1888).

Civil Justice Reform (Executive Order 12988)

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that this rule does not unduly burden the 
judicial system and meets the requirements of sections 3(a) and 3(b)(2) 
of the Order. The Solicitor analyzed and upheld the Department of the 
Interior's authority to establish Courts of Indian Offenses in a 
memorandum dated February 28, 1935. The Solicitor found that authority 
to rest principally in the statutes placing supervision of the Indians 
in the Secretary of the Interior, 25 U.S.C. 2 and 9; and 25 U.S.C. 13, 
which authorizes appropriations for ``Indian judges.'' The United 
States Supreme Court recognized the authority of the Secretary to 
promulgate regulations with respect to Courts of Indian Offenses in 
United States v. Clapox, 35 F. 575 (D. Ore. 1888). Part 11 also 
requires the establishment of an appeals court; hence, the judicial 
system defined in Executive Order 12988 does not involve this judicial 
process.

Paperwork Reduction Act

    This regulation does not require an information collection under 
the Paperwork Reduction Act. The information collection is not covered 
by an existing OMB approval. An OMB form 83-I has not been prepared and 
has not been approved by the Office of Policy Analysis. No information 
is being collected as a result of the CFR court exercising its limited 
criminal misdemeanor jurisdiction over Indians within the exterior 
boundaries of the Paiute-Shoshone Indian Tribe of the Fallon 
Reservation and Colony.

National Environmental Policy Act

    We have analyzed this rule in accordance with the criteria of the 
National Environmental Policy Act and 516 DM. This rule does not 
constitute a major Federal action significantly affecting the quality 
of the human environment. An environmental impact statement/assessment 
is not required. The establishment of this Court of Indian Offenses on 
a temporary basis conveys personal jurisdiction over the criminal 
misdemeanor actions of Indians within the exterior boundaries of the 
Paiute-Shoshone Indian Tribe of the Fallon Reservation and Colony and 
does not have any impact on the environment.

Consultation and Coordination with Indian Tribal Governments 
(Executive Order 13175)

    Pursuant to Executive Order 13175 of November 6, 2000, 
``Consultation and Coordination with Indian Tribal Governments,'' we 
have evaluated potential effects on federally recognized Indian tribes 
and have determined that there are no potential effects. The amendment 
to 25 CFR 11.100(a) does not apply to any of the 558 federally 
recognized tribes, except the Paiute-Shoshone Indian Tribe of the 
Fallon Reservation and Colony. The provisional Court of Indian Offenses 
is established until the Secretary determines that enforcement of the 
criminal offenses contained in Part 11 of the Code of Federal 
Regulations is no longer justified. The Department of the Interior, in 
establishing this provisional court, is fulfilling its trust 
responsibility and complying with the unique government-to-government 
relationship that exists between the Federal Government and Indian 
tribes.

List of Subjects in 25 CFR Part 11

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

    For the reasons stated in the preamble, we are amending part 11, 
chapter I of title 25 of the Code of Federal Regulations, as set forth 
below. This amendment is effective from September 18, 2001 to September 
18, 2002.

PART 11--LAW AND ORDER ON INDIAN RESERVATIONS

    1. The authority citation for part 11 continues to read as follows:

    Authority: R.S. 463; 25 U.S.C. 2, 38 Stat. 586; 25 U.S.C. 200, 
unless otherwise noted.

    2. Section 11.100 is amended by adding new paragraph (a)(15) to 
read as follows:


Sec. 11.100  Listing of Courts of Indian Offenses.

    (a) * * *
    (15) Paiute-Shoshone Indian Tribe of the Fallon Reservation and 
Colony (land in trust for the Paiute-Shoshone Indian Tribe of the 
Fallon Reservation and Colony).
* * * * *

    Dated: September 5, 2001.
Neal A. McCaleb,
Assistant Secretary--Indian Affairs.
[FR Doc. 01-23198 Filed 9-17-01; 8:45 am]
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