[Federal Register Volume 67, Number 127 (Tuesday, July 2, 2002)]
[Rules and Regulations]
[Pages 44353-44355]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-16635]



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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 11

RIN 1076-AE33


Law and Order on Indian Reservations

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Final rule and request for comments.

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SUMMARY: This document adds the Santa Fe Indian School Property 
(Southwest Region, New Mexico) to the listing of Courts of Indian 
Offenses to establish a judicial forum for the administration of 
justice within the property.

DATES: This rule is effective on July 8, 2002. Submit comments by 
September 3, 2002.

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

FOR FURTHER INFORMATION CONTACT: Iris A. Drew, Tribal Government 
Officer, Southwest Regional Office, Bureau of Indian Affairs, 615 First 
Street, NW., Albuquerque, New Mexico 87125-6467, at (505) 346-7592; 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.

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.
    On May 3, 2001, the Bureau of Indian Affairs published a temporary 
rule (66 FR 22118) amending its regulations contained in 25 CFR part 11 
to add the Santa Fe Indian School (SFIS) Property (Southwest Region New 
Mexico) to the list of Courts of Indian Offenses. This amendment 
established a Court of Indian Offenses for a period not to exceed one 
year. The purpose of establishing a Court of Indian Offenses at SFIS 
was to protect the lives, persons, and property of people residing at 
and attending or visiting the school and hospital, until the nineteen 
Pueblos establish a tribal court or otherwise request a CFR Court to 
exercise criminal jurisdiction. The SFIS property is held in trust by 
the Federal Government for the benefit of the nineteen Pueblos and a 
consensus is required to establish a tribal court that will represent 
all the Pueblos. The nineteen Pueblos could not reach a consensus 
within this initial time frame even though meetings were held with the 
Pueblos in an attempt to identify a sponsoring Pueblo to assume the 
lead in establishing a tribal court at SFIS and develop appropriate 
criminal codes. It does not appear likely that in the immediate future 
the nineteen Pueblos will reach this consensus; therefore, it is 
necessary for the amendment to part 11 that places the SFIS on the list 
of CFR Courts to become a permanent listing. The jurisdiction of this 
CFR Court will remain the same as published in the Federal Register on 
May 3, 2001 at 66 FR 22118. The Pueblos, however, will work in 
conjunction with the Southwest Regional Office to establish a tribal 
court to exercise jurisdiction at SFIS at which time the Pueblos may 
request the Secretary to remove the SFIS as a CFR Court.

Determination To Publish a Direct Final Rule Effective Immediately

    In accordance with the requirements of the Administrative Procedure 
Act (5 U.S.C. 553(B)), we have determined that publishing a proposed 
rule would be impractical because of the potential harm that could 
result from the lack of a court with jurisdiction over the Santa Fe 
Indian School and Hospital. We are therefore publishing this change as 
a final rule with request for comments.
    BIA has determined it appropriate to make the rule effective 
immediately by waiving the requirement of publication 30 days in 
advance of the effective date found at 5 U.S.C. 553(d). This is because 
of the critical need to expedite establishment of this court to fill 
the void in law enforcement at the Santa Fe Indian School and Indian 
Hospital, and the imminent increase in visitors to the grounds in 
question. It is in the public interest and in the interest of the 
Pueblos not to delay implementation of this amendment. Accordingly, 
this final rule is 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 shared 
among the Office of Indian Education, the Bureau of Indian Affairs, and 
the Indian Health Service.
    (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 nineteen Pueblos. Its primary function will be to 
administer justice for misdemeanor offenses within the Santa Fe Indian 
School grounds. The court's jurisdiction will be limited to criminal 
offense 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 part 11.100(a) will establish a Court of Indian 
Offenses with limited criminal jurisdiction over Indians within a 
limited geographical

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area at Santa Fe, New Mexico. Accordingly, there will be no impact on 
any small entities in New Mexico.

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 shared among the 
Office of Indian Education, the Bureau of Indian Affairs, and the 
Indian Health Service.
    (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 Court established 
specifically for the administration of misdemeanor justice for Indians 
located within the boundaries of the Santa Fe Indian School, New Mexico 
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 
U.S.-based enterprises to compete with foreign-based enterprises. This 
is a Court established specifically for the administration of 
misdemeanor justice for Indians located within the boundaries of the 
Santa Fe Indian School, New Mexico, and will not have an adverse impact 
on competition, investment, productivity, innovation, or the ability of 
U.S.-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 Santa Fe Indian School grounds. Its jurisdiction will be limited to 
criminal offense 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, the rule does not have 
significant takings implications. A takings implication assessment 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 Santa Fe, New Mexico. 
Accordingly, there will be no jurisdictional basis for to adversely 
affect any property interest because the court's jurisdiction is solely 
personal jurisdiction over Indians.

Federalism (Executive Order 13132)

    In accordance with Executive Order 13132, the 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 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 the 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 will not normally be involved in 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 this Court exercising its limited 
criminal misdemeanor jurisdiction over Indians within the exterior 
boundaries of the Santa Fe Indian School, New Mexico.

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 
conveys personal jurisdiction over the criminal misdemeanor actions of 
Indians with the exterior boundaries of the Santa Fe Indian School and 
does not have any impact of the environment.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951) and 512 DM 2, 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 562 federally recognized tribes, except the 
nineteen Pueblos in New Mexico that have requested the establishment of 
the provisional Court of Indian Offenses until such time as they 
establish a tribal court to provide for a law and order code and 
judicial system to deal with law and order on the trust land at Santa 
Fe Indian School. 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.

PART 11--LAW AND ORDER ON INDIAN RESERVATIONS

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


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    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)(14) to 
read as follows:


Sec. 11.100  Listing of Courts of Indian Offenses.

    (a) * * *
    (14) Sante Fe Indian School Property, including the Santa Fe Indian 
Health Hospital (land in trust for the 19 Pueblos of New Mexico).
* * * * *

    Dated: June 24, 2002.
Neal A. McCaleb,
Assistant Secretary--Indian Affairs.
[FR Doc. 02-16635 Filed 7-1-02; 8:45 am]
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