[Federal Register Volume 69, Number 161 (Friday, August 20, 2004)]
[Rules and Regulations]
[Pages 51556-51559]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-19113]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 11

RIN 1076-AE53


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 Albuquerque Indian School property 
(Southwest Region, New Mexico) to the existing Santa Fe Indian School 
property listing of Courts of Indian Offenses. This will establish a 
judicial forum for the administration of justice within the property.

DATES: This rule is effective on August 20, 2004. Comments must be 
received on or before October 19, 2004.

ADDRESSES: You may submit comments, identified by the number 1076-AE53 
by any of the following methods:
     Federal rulemaking portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Fax: (202) 208-5113.
     Mail: Ralph Gonzales, Office of Tribal Services, Bureau of 
Indian Affairs, 1951 Constitution Avenue, NW., MS 320-SIB, Washington, 
DC 20240.
     Hand delivery: Office of Tribal Services, Bureau of Indian 
Affairs, 1951 Constitution Avenue, NW., MS 320-SIB, Washington, DC 
20240.

FOR FURTHER INFORMATION CONTACT: Iris A. Drew, Tribal Government 
Officer, Southwest Regional Office, Bureau of Indian Affairs, P.O. Box 
26567, 1001 Indian School Road NW., Albuquerque, New Mexico 87125-6567, 
at (505) 563-3530; or Ralph Gonzales, Office of Tribal Services, Bureau 
of Indian Affairs, 1951 Constitution Avenue NW., MS 320-SIB, 
Washington, DC 20240, at (202) 513-7629.

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 Tillet v. Hodel, 730 F. Supp., 381 (W.D. Okla. 1990), 
aff'd 931 F.2d 636 (10th Cir. 1991), United States v. Clapox, 35 F. 575 
(D. Ore. 1888). This rule is published in the exercise of the 
rulemaking authority delegated by the Secretary of the Interior to the 
Assistant Secretary--Indian Affairs in the Departmental Manual at 209 
DM 8.1.
    On January 29, 1993, the United States of America (``Grantor''), by 
the

[[Page 51557]]

Secretary of the Interior acting pursuant to 25 U.S.C. 2202 and 465 and 
the regulation at 25 CFR 151.3(a)(2) and (3), for the purpose of 
placing the real property described below (the ``property'') in trust 
for the equal benefit of the Indian Pueblos of New Mexico (the 
``Pueblos'') as tenants in common, and in consideration of the 
reconveyance of the property by the Pueblos to the Grantor, and other 
valuable consideration, conveyed, transferred and quitclaim to itself 
in trust jointly for the equal benefit of the following Pueblos:

Pueblo of Acoma
Pueblo of Cochiti
Pueblo of Isleta
Pueblo of Jemez
Pueblo of Laguna
Pueblo of Nambe
Pueblo of San Felipe
Pueblo of Sandia
Pueblo of San Ildefonso
Pueblo of Santa Ana
Pueblo of San Juan
Pueblo of Santa Clara
Pueblo of Santo Domingo
Pueblo of Taos
Pueblo of Tesuque
Pueblo of Zia
Pueblo of Zuni

All of its right, title and interest in and to the following real 
estate: A tract of land containing 44.201 acres, situated within the 
east half (E\1/2\), Section 7 and the west half (W\1/2\), Section 8, 
T.10 N., R.3 E., New Mexico Principal Meridian, Bernalillo County, 
State of New Mexico, subject to all existing reservations and recorded 
at the Land Titles and Records Office, Albuquerque, New Mexico, as 
Document No. 050-001-93.
    On May 24, 1994, 1.9592 acres was transferred to the 19 Pueblos and 
includes the tract of land being the original Old Indian School 
boundary, that portion of the Indian Health Service situation within 
the east half (E\1/2\), Section 7, T.10 N., R.3 E., New Mexico 
Principal Meridian, Bernalillo County, New Mexico, subject to all 
existing reservations and recorded at the Land Titles and Records 
Office, Albuquerque, New Mexico, as Document No. 050-001-97.
    Trust status of the Albuquerque Indian School property has been in 
litigation since 1993. The December 2002 Federal district court 
decision in Neighbors for Rational Development v. Gale Norton, 
Secretary of the Interior, CIV. 99-0059 (D.N.M.), upheld the validity 
of the trust transfer to the Pueblos. Pursuant to the Master Plan for 
Development and Environmental review based thereon, the Albuquerque 
Indian School property will be used primarily for office buildings and 
economic development activities for the 19 Pueblos. The Joint Powers 
Agreement implemented between the city of Albuquerque and the 19 
Pueblos provides generally for city services on the property and 
clarifies jurisdiction for non-Indians. The jurisdiction of this court 
shall provide for protection of lives, persons, and property of people 
working on the property, economic development projects and visitors to 
the Albuquerque Indian School location until the local Pueblos 
establish a tribal court of their own.
    Both the Albuquerque Indian School and the Santa Fe Indian School 
properties are held in trust by the Federal Government for the benefit 
of the 19 Pueblos and a consensus is required to establish a tribal 
court that will represent all the Pueblos. The 19 Pueblos have not been 
able to 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 for 
the Albuquerque Indian School property. It does not appear likely that 
in the immediate future the 19 Pueblos will reach this consensus; 
therefore, it is necessary for the amendment to part 11 that places the 
Albuquerque Indian School property on the list of CFR Courts, as an 
addition to the Santa Fe Indian School property, to become a permanent 
listing. The jurisdiction of this CFR Court will remain the same as 
that published in the Federal Register on July 2, 2002, at 67 FR 44353, 
for the Santa Fe Indian School property, including the Indian Health 
Hospital, and now with the addition of the Albuquerque Indian School 
property. The Pueblos, however, will work in conjunction with the 
Southwest Regional Office to establish a tribal court to exercise 
jurisdiction at the Santa Fe Indian School property and the Albuquerque 
Indian School property at which time the Pueblos may request the 
Secretary to remove the Santa Fe Indian School and Albuquerque Indian 
School as a CFR Court.
    Judges of the Court of Indian Offenses shall be authorized to 
exercise all authority provided under 25 CFR part 11, including: 
Subpart D--Criminal Offenses; Subpart H--Appellate Proceedings; Subpart 
J--Juvenile Offender Procedure; issuance of arrest and search warrants 
pursuant to 25 CFR 11.302 and 11.305 and section 4(2)(A) of the Indian 
Law Enforcement Reform Act, Public Law 101-379, 104 Stat. 473 (August 
18, 1990). Officials of the Bureau of Indian Affairs have already set 
up the permanent Court of Indian Offenses pursuant to 25 CFR 11.100(a) 
for the Southwest Region to address a similar law enforcement need at 
the Santa Fe Indian School property. This final rule will not authorize 
judges to exercise the following authority under 25 CFR part 11: 
Subpart E--Civil Actions; Subpart F--Domestic Relations; Subpart G--
Probate Proceedings; Subpart I--Children's Court; and Subpart K--Minor-
in-Need-of-Care Procedure.
    The establishment of this court is based upon the need for a code 
to be established for law enforcement staff operating on the 
Albuquerque Indian School property.

Determination To Publish a Direct Final Rule Effective Immediately

    In accordance with the requirement 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 Albuquerque 
Indian School property. We are therefore publishing this change as a 
final rule with request for comments.
    The Bureau of Indian Affairs 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 Albuquerque 
Indian School property, and the imminent increase in visitors to the 
grounds in question. It is in the public interest and 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 property to an 
existing Court of Indian Offenses is estimated to cost less than

[[Page 51558]]

$200,000 annually to operate. The cost associated with the operation of 
this Court will be born by the Bureau of Indian Affairs and the 
Pueblos.
    (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 effect 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 19 Pueblos. Its primary function will be to 
administer justice for misdemeanor offenses within the Albuquerque 
Indian School property. 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, Bureau of Indian Affairs, 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 the addition of the 
Albuquerque Indian School at Albuquerque, New Mexico, to the existing 
Court of Indian Offenses with limited criminal jurisdiction over 
Indians within a limited geographical area at Albuquerque, 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 born by 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 Court will administer misdemeanor 
justice for Indians located within the boundaries of the Albuquerque 
Indian School property, Albuquerque, 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. This Court will administer misdemeanor justice 
for Indians located within the boundaries of the Albuquerque Indian 
School, Albuquerque, 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 Albuquerque Indian School grounds. 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, 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 an 
addition of the Albuquerque Indian School property, Albuquerque, New 
Mexico, with limited criminal jurisdiction over Indians within a 
limited geographical area to the existing Santa Fe, New Mexico Court of 
Indian Offenses. Accordingly, there will be no jurisdictional basis 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 section 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 existence on, or its 
limited criminal misdemeanor jurisdiction over Indians within the 
exterior boundaries of the Albuquerque Indian School property, 
Albuquerque, New Mexico.

[[Page 51559]]

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 additional inclusion of the exterior boundaries of the 
Albuquerque Indian School and does not have any impact on the 
environment.

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

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, and 512 DM 2, we 
have evaluated potential effects on federally recognized Indian tribes 
and determined the federally recognized Indian tribes are not affected 
by this rule, except for the 19 Pueblos in New Mexico. The Court of 
Indian Offenses will remain in existence until such time as they 
establish a tribal court to provide for a law and order code and a 
judicial system to deal with law and order on the additional trust land 
at the Albuquerque Indian School in accordance with 25 CFR 11.100(c). 
The establishment of this court is consistent with the Department's 
trust responsibility and 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.


0
For the reasons set out in the preamble, part 11 of title 25 of the 
Code of the Federal Regulations is amended as set forth below.

PART 11--LAW AND ORDER ON INDIAN RESERVATIONS

0
1. The authority citation for part 11 continues to read as follows:

    Authority: R.S. 463; 25 U.S.C. 2. Interpret or apply section 1, 
38 Stat. 586; 25 U.S.C. 200, unless otherwise noted.

0
2. In Sec.  11.100, paragraph (a)(14) is revised to read as follows:


Sec.  11.100  Listing of Courts of Indian Offenses.

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

    Dated: August 4, 2004.
David W. Anderson,
Assistant Secretary--Indian Affairs.
[FR Doc. 04-19113 Filed 8-19-04; 8:45 am]
BILLING CODE 4310-4J-P