[Federal Register Volume 67, Number 185 (Tuesday, September 24, 2002)]
[Rules and Regulations]
[Pages 59781-59783]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-24241]



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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 11

RIN 1076-AE19


Law and Order on Indian Reservations

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: 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 set up a Court of Indian Offenses with 
jurisdiction over the Paiute-Shoshone Indian Tribe of the Fallon 
Reservation and Colony to protect lives and property.

DATES: Effective Date: This rule is effective on September 30, 2002.
    Comment Date: Comments must be received on or before November 25, 
2002.

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, (602) 379-6786; or Ralph 
Gonzales, Branch of Judicial Services, Office of Tribal Services, 
Bureau of Indian Affairs, 1849 C Street NW., MS 4660 Washington, DC 
20240, (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 September 18, 2001, the Bureau of Indian Affairs published a 
temporary final rule (66 FR 48085) amending its regulations contained 
in 25 CFR part 11 to add the Paiute-Shoshone Indian Tribe of the Fallon 
Reservation and Colony (Western Region, Nevada) 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 the Fallon Reservation and 
Colony was to protect persons, land, lives and property of people 
residing there, until the tribe reassumed its Law and Order program. 
The tribe has not established a tribal court to exercise jurisdiction 
at Fallon Reservation and Colony consistent with 25 CFR 11.100(c). 
Therefore a Court of Indian Offenses is established for an indefinite 
period at Fallon Reservation and Colony until such time as the tribe 
establishes a tribal court. The jurisdiction of the Court of Indian 
Offenses will remain the same as published in the Federal Register on 
September 18, 2001 at 66 FR 48085.
    BIA's action provided a 60-day public comment period ending 
November 19, 2001. During the comment period, BIA received 86 form 
letters. Commenters stated that they accept the BIA's emergency 
amendment establishing a CFR Court at Fallon. In addition, the 
commenters indicated that we should eliminate the tribal court. The 
tribal government created the tribal court as an exercise of its 
inherent sovereignty. Therefore, we cannot eliminate the tribal court 
in response to the comments. We can only establish a CFR Court when it 
is necessary to protect lives and property where a tribal court has not 
been established or a tribal court fails to perform this function. This 
amendment permanently establishes a CFR Court until such time as the 
tribal government establishes a tribal court consistent with the 
regulations contained in part 11.100(c).

Determination To Publish a 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 risk to public safety as well 
as further risk of exposure of the Federal Government to a lawsuit for 
failure to execute diligently its trust responsibility and to provide 
adequate judicial services for law enforcement on trust land. 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 a necessary 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 not to delay implementation of this 
amendment. 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 U.S.C. 553(d) requirement of publication 30 
days in advance of the effective date. This is because of the critical 
need to expedite establishment of this court to fill the void in law 
enforcement at the Fallon Reservation and Colony. Therefore, 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 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

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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 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 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 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 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. This rule concerns only courts established for tribes by the 
Federal Government at the tribe's request and does not infringe on 
states' judicial systems. If the tribe chooses, they can establish 
their own judicial system apart from any State or local government in 
accordance with 25 CFR 11.100(c).

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 this 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 
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 562 federally 
recognized tribes, except the Paiute-Shoshone Indian Tribe of the 
Fallon Reservation and Colony. The tribe agreed to the establishment of 
the provisional Court of Indian Offenses until the Secretary determines 
that enforcement of the criminal offenses contained in part 11 of the 
Code of Federal Regulations is no longer

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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.

PART 11--LAW AND ORDER ON INDIAN RESERVATIONS

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

    Authority: 5 U.S.C. 301; R.S. 463, 25 U.S.C. 2; R.S. 465, 25 
U.S.C. 9; 42 Stat. 208, 25 U.S.C. 13; 38 Stat. 586, 25 U.S.C. 200.

    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 13, 2002.
Neal A. McCaleb,
Assistant Secretary--Indian Affairs.
[FR Doc. 02-24241 Filed 9-23-02; 8:45 am]
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