[Federal Register Volume 70, Number 59 (Tuesday, March 29, 2005)]
[Rules and Regulations]
[Pages 15759-15761]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-6113]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 11

RIN 1076-AE52


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 Winnemucca Indian Tribe (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 2 years. It is necessary to establish a Court of Indian Offenses 
with jurisdiction over the Winnemucca Indian Tribe of the Winnemucca 
Reservation and Colony in order to protect lives and property.

DATES: This rule is effective on March 29, 2005. Comments must be 
received on or before May 31, 2005. Section 11.100(a)(15) expires March 
29, 2007.

ADDRESSES: You may submit comments, identified by the number 1076-AE52, 
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: Sharlot Johnson, Tribal Operations 
Officer, Western Regional Office, Bureau of Indian Affairs, 400 N. 
Fifth Street, Phoenix, Arizona 85004, (602) 379-6786; or Ralph 
Gonzales, Office of Tribal Services, Bureau of Indian Affairs, 1951 
Constitution Avenue, NW., MS 320-SIB, Washington, DC 20240, (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 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 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.
    The territorial jurisdiction is extended to the land described in 
this document. The tract of land located in Nevada, within which the 
Winnemucca Indian Tribe is located, and more particularly described as:
    (1) That 160 acres set aside by Executive Order of June 18, 1917, 
described as the NE\1/4\ of Section 32, Township 36 N., Range 38 E., 
M.D.M.;
    (2) That 160 acres withdrawn by Executive Order of February 8, 
1918, described as the SE\1/4\ of Section 32, Township 36 N., Range 38 
E., M.D.M.; and
    (3) That 20 acres acquired by the Acts of May 21, 1928 (45 Stat. 
618) and May 29, 1928 (45 Stat 899) and described as N\1/2\, NE\1/4\, 
Section 29, Township 36 N., Range 38 E., M.D.M.
    In addition, the territorial jurisdiction is extended to any lands 
hereafter acquired by or for the Colony. A provisional Court of Indian 
Offenses must be established for the Winnemucca Indian Tribe to protect 
the lives, persons, and property of people residing at and attending or 
visiting the Winnemucca Reservation and Colony, until they establish a 
tribal court in accordance with 25 CFR 11.100(c). This court shall 
function for a period not to exceed 2 years.
    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 the Indian Law Enforcement 
Reform Act, 25 U.S.C. 2803(2) (1998). Officials of the Bureau of Indian 
Affairs have already set up a provisional Court of Indian Offenses 
pursuant to 25 CFR 11.100(a) for the Western Region to address this law 
enforcement need. This rule merely affirms the legitimacy of the 
establishment of this court.
    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.

Determination To Publish a Direct Final Rule Effective Immediately

    The Bureau of Indian Affairs 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 
Winnemucca Indian Tribe of Winnemucca, Nevada, on land that was placed 
in trust for the benefit of the Winnemucca Indian Tribe. If this 
provisional court is not established, there is a high potential risk to 
public safety and a further risk of significant financial liability to 
the Federal Government from a lawsuit for failure to execute diligently 
its trust responsibility and provide adequate 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. The 
Bureau of Indian Affairs Law Enforcement Services provides Law 
Enforcement Services to the Winnemucca Indian Tribe and an increase in 
visitors to the Winnemucca Reservation and Colony is imminent. For 
these reasons, an immediate effective date is in the public interest 
and in the interest of the Winnemucca 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.

[[Page 15760]]

    (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 and the Winnemucca Tribe.
    (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 Winnemucca Indian Tribe. Its primary function 
will be to administer justice for misdemeanor offenses within the 
Winnemucca Reservation and Colony grounds. The court's jurisdiction 
will be limited to criminal offense provided in 25 CFR part 11 and the 
Law and Order Code of the Winnemucca Tribe.
    (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 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 part 11.100(a) will establish a Court of Indian 
Offenses with limited criminal jurisdiction over Indians within a 
limited geographical area at Winnemucca, 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 and the Winnemucca Tribe.
    (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 Winnemucca Indian 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 
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 
Winnemucca Indian Reservation and Colony, Winnemucca, Nevada, 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 Winnemucca Indian Reservation and Colony grounds. Its jurisdiction 
will be limited to criminal offense provided in 25 CFR part 11 and the 
Law and Order Code of the Winnemucca Tribe.
    (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 Winnemucca, Nevada. 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 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

[[Page 15761]]

an existing OMB approval. An OMB form 83-I have not been prepared and 
have 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 Winnemucca Indian 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 Winnemucca Indian 
Reservation and Colony and does not have any impact of 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 have determined that there are no potential effects. The amendment 
to 25 CFR part 11.100(a) does not apply to any of the 564 federally 
recognized tribes, except the Winnemucca Indian Tribe. The provisional 
Court of Indian Offenses will exist until the tribe establishes a 
tribal court to provide for a law and order and a judicial system to 
deal with law and order on the trust land at the Winnemucca Indian 
Reservation and Colony, but is expected not to exceed 2 years. 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.


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, 38 Stat. 586; 25 U.S.C. 200, 
unless otherwise noted.


0
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) Winnemucca Indian Tribe (land in trust for the Winnemucca 
Indian Tribe of Nevada).
* * * * *

    Dated: November 23, 2004.
David W. Anderson,
Assistant Secretary--Indian Affairs.
[FR Doc. 05-6113 Filed 3-28-05; 8:45 am]
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