[Federal Register Volume 76, Number 234 (Tuesday, December 6, 2011)]
[Rules and Regulations]
[Pages 76037-76043]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-31313]


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DEPARTMENT OF JUSTICE

28 CFR Part 50

[Docket No. OAG 142; AG Order No. 3314-2011]
RIN 1105-AB38


Office of the Attorney General; Assumption of Concurrent Federal 
Criminal Jurisdiction in Certain Areas of Indian Country

AGENCY: Office of the Attorney General, Department of Justice.

ACTION: Final rule.

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SUMMARY: This rule establishes the procedures for an Indian tribe whose 
Indian country is subject to State criminal jurisdiction under Public 
Law 280 (18 U.S.C. 1162(a)) to request that the United States accept 
concurrent criminal jurisdiction within the tribe's Indian country, and 
for the Attorney General to decide whether to consent to such a 
request.

DATES: Effective Date: This rule is effective January 5, 2012.

FOR FURTHER INFORMATION, CONTACT: Mr. Tracy Toulou, Director, Office of 
Tribal

[[Page 76038]]

Justice, Department of Justice, at (202) 514-8812 (not a toll-free 
number).

SUPPLEMENTARY INFORMATION: 

Discussion

    For more than two centuries, the Federal Government has recognized 
Indian tribes as domestic sovereigns that have unique government-to-
government relationships with the United States. Congress has broad 
authority to legislate with respect to Indian tribes, however, and has 
exercised this authority to establish a complex jurisdictional scheme 
for the prosecution of crimes committed in Indian country. (The term 
``Indian country'' is defined in 18 U.S.C. 1151.) Criminal jurisdiction 
in Indian country typically depends on several factors, including the 
nature of the crime; whether the alleged offender, the victim, or both 
are Indian; and whether a treaty, Federal statute, executive order, or 
judicial decision has conferred jurisdiction on a particular 
government.
    Here, three Federal statutes are particularly relevant: The General 
Crimes Act (also known as the Indian Country Crimes Act), 18 U.S.C. 
1152; the Major Crimes Act (also known as the Indian Major Crimes Act), 
18 U.S.C. 1153; and Public Law 280, Act of Aug. 15, 1953, Public Law 
83-280, 67 Stat. 588, codified in part as amended at 18 U.S.C. 1162. 
Under the General Crimes and Major Crimes Acts, which apply to most of 
Indian country, jurisdiction to prosecute most crimes in Indian country 
rests with the Federal Government, the tribal government, or both 
concurrently. State criminal jurisdiction in Indian country is 
generally limited to crimes committed by non-Indians against non-Indian 
victims, as well as victimless crimes committed by non-Indians.
    But there is an important exception to this general rule: In 
certain areas of Indian country, Public Law 280 renders the General 
Crimes and Major Crimes Acts inapplicable and instead gives the States 
jurisdiction over crimes committed by or against Indians. Specifically, 
the Public Law 280 criminal-jurisdiction provision codified at 18 
U.S.C. 1162 applies in parts of Alaska, California, Minnesota, 
Nebraska, Oregon, and Wisconsin. (Section 1162(a) expressly exempts 
some areas of Indian country in these States, such as the Red Lake 
Reservation in Minnesota and the Warm Springs Reservation in Oregon; 
and some of these States have formally ``retroceded'' jurisdiction over 
other reservations.) In the areas of Indian country covered by section 
1162, which are known as ``mandatory'' Public Law 280 jurisdictions, 
the Federal Government can prosecute violations of general Federal 
criminal statutes that apply nationwide, such as Federal narcotics 
laws, but typically cannot prosecute violent crimes such as murder, 
assault with a dangerous weapon, or felony child abuse.
    In contrast, the provision originating in Public Law 280 that is 
codified at 25 U.S.C. 1321 provides a basis for other States to elect 
to assume criminal jurisdiction in Indian country on an optional basis, 
subject to the consent of the affected tribe. In the Indian country of 
these tribes, known as ``optional'' Public Law 280 jurisdictions, the 
Department concludes that the applicable statutes, including the Tribal 
Law and Order Act of 2010 (TLOA), provide that the Federal Government 
has concurrent jurisdiction under the General Crimes and Major Crimes 
Acts. See U.S. Department of Justice, United States Attorneys' Manual, 
tit. 9, Criminal Resource Manual Sec.  688 (Federal Government may 
exercise concurrent criminal jurisdiction in ``the so-called `option 
states' * * * which assumed jurisdiction pursuant to Public Law 280 
after its enactment''); United States v. High Elk, 902 F.2d 660, 661 
(8th Cir. 1990) (per curiam) (holding that Federal courts retain Major 
Crimes Act jurisdiction in those States that voluntarily assumed 
jurisdiction under Public Law 280); cf. Negonsott v. Samuels, 507 U.S. 
99, 105-06 (1993) (holding that a different Federal statute conferred 
criminal jurisdiction on a State without divesting the United States of 
concurrent criminal jurisdiction). But cf. United States v. Burch, 169 
F.3d 666, 669-71 (10th Cir. 1999) (holding that a 1984 ``direct 
congressional grant of jurisdiction over [crimes committed in one town 
in] Indian country'' vested Colorado with exclusive jurisdiction akin 
to mandatory jurisdiction under Pub. L. 280).

The Tribal Law and Order Act of 2010

    The TLOA was enacted on July 29, 2010, as title II of Public Law 
111-211. The purpose of the TLOA is to help the Federal Government and 
tribal governments better address the unique public-safety challenges 
that confront tribal communities.
    Section 221(b) of the new law, now codified at 18 U.S.C. 1162(d), 
permits an Indian tribe with Indian country subject to mandatory State 
criminal jurisdiction under Public Law 280 to request that the United 
States accept concurrent jurisdiction to prosecute violations of the 
General Crimes Act and the Major Crimes Act within that tribe's Indian 
country. As the statute states, this jurisdiction will be concurrent 
among the Federal Government, the State government, and (where 
applicable) the tribal government. See 18 U.S.C. 1162(d)(2). Section 
221(b) provides for the United States to assume concurrent criminal 
jurisdiction at the tribe's request, and after consultation between the 
tribe and the Attorney General and consent to Federal jurisdiction by 
the Attorney General. The State need not consent. Once the United 
States has accepted concurrent criminal jurisdiction, Federal 
authorities can investigate and prosecute offenses that Public Law 280 
currently bars them from prosecuting.

Assumption of Concurrent Federal Criminal Jurisdiction

    This rule establishes the framework and procedures for a mandatory 
Public Law 280 tribe to request the assumption of concurrent Federal 
criminal jurisdiction within the Indian country of the tribe that is 
subject to Public Law 280. It also describes the process to be used by 
the Attorney General in deciding whether to consent to such a request.
    The TLOA provides that the Attorney General is the deciding 
official for requests submitted by Indian tribes under 18 U.S.C. 
1162(d). Given the potentially high volume of requests, the large 
number of Department of Justice components and non-Department partners 
that should be conferred with, and the detailed tribe-by-tribe analyses 
that may be needed, the Attorney General is delegating decisional 
authority under 18 U.S.C. 1162(d) to the Deputy Attorney General. The 
Office of the Deputy Attorney General will receive recommendations from 
the Office of Tribal Justice, the Executive Office for United States 
Attorneys, and the Federal Bureau of Investigation, and also will 
consider any comments from other Department components (including the 
Bureau of Prisons and the Office of Community Oriented Policing 
Services) and other Federal, tribal, State, and local entities. The 
Office of Tribal Justice will handle the staffing and tracking of 
assumption requests.
    The Department will begin to accept tribal requests for the 
assumption of concurrent Federal criminal jurisdiction on the date this 
rule becomes effective. Any tribe that previously submitted a request 
should resubmit its request and ensure that it conforms to the 
requirements of this final rule.
    In accordance with Executive Order 13175 of November 6, 2000, which 
requires consultation between Federal agencies and tribes on certain 
matters, the Department has held tribal consultations regarding these 
assumption procedures.

[[Page 76039]]

Retrocession of State Criminal Jurisdiction

    Assumption of concurrent Federal criminal jurisdiction under this 
rule does not require the approval of any State. The statute being 
implemented, 18 U.S.C. 1162(d), authorizes the Federal Government to 
assume such jurisdiction pursuant to a tribe's request and with the 
consent of the Attorney General; it does not require State consent to 
the change in Federal jurisdiction. After a tribe has submitted a 
request under 18 U.S.C. 1162(d), the Department will publish a notice 
in the Federal Register inviting input from affected State and local 
law enforcement authorities. But ultimately, it is the tribe's request 
and the Attorney General's consent that will determine whether the 
United States accepts concurrent criminal jurisdiction.
    The process described in this rule is separate and distinct in this 
respect from Public Law 280's ``retrocession'' process for transferring 
criminal jurisdiction from the State government to the Federal 
Government. See 25 U.S.C. 1323(a). The retrocession process is 
initiated by the State, not the tribe, and thus cannot occur without 
the State's consent.
    The process described in this rule is also distinct from the 
retrocession process in the further respect that the State will not 
lose any criminal jurisdiction as a result of the Federal Government's 
assumption of jurisdiction under this rule. As 18 U.S.C. 1162(d) makes 
clear, the jurisdiction assumed by the Federal Government under that 
provision is concurrent with State jurisdiction and, where applicable, 
tribal jurisdiction. By contrast, Federal acceptance of jurisdiction 
through the retrocession process under 25 U.S.C. 1323(a) eliminates 
criminal jurisdiction previously held by the State in areas covered by 
the retrocession.

Where 18 U.S.C. 1162(d) Does Not Apply

    The process described in this rule applies only to Indian country 
that is subject to ``mandatory'' Public Law 280 State criminal 
jurisdiction under 18 U.S.C. 1162. As indicated above, the Department 
concludes that the United States has concurrent jurisdiction over 
General Crimes Act and Major Crimes Act violations in areas where 
States have assumed criminal jurisdiction under ``optional'' Public Law 
280. Accordingly, although the TLOA provides for the United States to 
``accept'' concurrent criminal jurisdiction in these areas ``[a]t the 
request of an Indian tribe, and after consultation with and consent by 
the Attorney General,'' 25 U.S.C. 1321(a)(2), the Department's view is 
that such concurrent Federal jurisdiction exists, whether or not the 
United States formally accepts such jurisdiction with the Attorney 
General's consent pursuant to individual tribal requests under this 
provision. Accordingly, the Department is not establishing procedures 
in this rule for processing individual requests from tribes for 
acceptance of concurrent Federal jurisdiction in areas subject to State 
criminal jurisdiction under ``optional'' Public Law 280.

Comments on the Proposed Rule

    In response to the proposed rule published on May 23, 2011, see 
Assumption of Concurrent Federal Criminal Jurisdiction in Certain Areas 
of Indian Country, 76 FR 29675 (May 23, 2011), with a comment period 
through July 7, 2011, the Department of Justice received eight sets of 
comments: three from tribal governments, one from a non-profit 
organization, two from associations of county officials, one from a 
county attorney, and one from a private individual. These eight sets of 
comments included a number of comments related to other sections of the 
TLOA; only those comments relating to the proposed rule establishing 
procedures for making requests for concurrent Federal criminal 
jurisdiction are addressed here.

Information To Determine Whether the Assumption of Concurrent Federal 
Criminal Jurisdiction Will Improve Public Safety

    One comment requested information in the rule that would indicate 
the effectiveness of Federal law enforcement in Indian country where 
concurrent Federal criminal jurisdiction already exists. In addition, 
the comment requested information about Federal law enforcement agency 
resources to help tribes determine whether the agencies are equipped 
adequately to be effective. Similarly, another comment requested 
information regarding Federal funding and staffing so that State 
agencies can gauge Federal law enforcement capacity.
    The Department declines to adopt these suggestions. The extent of 
Federal law enforcement in Indian country where concurrent jurisdiction 
already exists is influenced by a wide variety of factors, some of 
which may be unique to a particular tribe. Therefore, generalizations 
about Federal law enforcement in Indian country could result in 
inaccurate and largely unhelpful guidance for tribes considering 
whether to submit requests pursuant to this rule. Moreover, information 
about Federal law enforcement agency resources is subject to change 
each fiscal year and thus can be an unreliable predictor of future 
resources.

Tribal, Federal, State, and Local Communication and Participation

    One comment requested an amendment to 28 CFR 50.25(c) to include a 
requirement that the Department provide notice (with an opportunity for 
comment) to State and local agencies that are responsible for 
investigating and prosecuting criminal violations in the Indian country 
of the tribe.
    The Department concurs with this suggestion and is amending the 
final rule to require that tribes requesting assumption of concurrent 
Federal criminal jurisdiction identify such agencies in their requests, 
and that the Office of Tribal Justice provide written notice to those 
agencies within 30 days of receiving the request.
    Two comments asked that the rule require the Office of Tribal 
Justice to provide the requesting tribe a copy of comments and 
recommendations submitted by others, and allow the tribe an opportunity 
to respond in writing.
    The Department generally concurs with this suggestion, but reserves 
the right to exercise discretion in determining what to share with the 
tribe. For example, the Department has an obligation to protect 
personally identifiable information and law enforcement sensitive 
information. The final rule is being amended to note that the Office of 
Tribal Justice may provide the requesting tribe with appropriately 
redacted copies of comments and will allow the tribe an opportunity to 
respond in writing.
    One comment suggested that the rule require a public meeting to 
solicit comments, which should be taken into consideration when 
evaluating tribal requests.
    The Department declines to adopt this suggestion. Requests will be 
published in the Federal Register and notice will be sent in writing to 
the State and local agencies referenced above. Those agencies and the 
public will have ample opportunity to provide comments. While the 
Department reserves the option to hold public meetings in appropriate 
cases, the Department declines to make such meetings mandatory in all 
cases.
    One comment asked that the rule require the Deputy Attorney General 
and the Office of Tribal Justice to meet personally with the tribe to 
discuss the

[[Page 76040]]

request, comments, and recommendations submitted by others.
    The Department declines to adopt this suggestion. The rule requires 
that the Office of Tribal Justice consult with the requesting tribe 
before forming a recommendation to the Deputy Attorney General. The 
Department believes the process established by the rule will provide 
requesting tribes sufficient opportunity for meaningful consultation on 
their requests and on any comments or recommendations from other 
parties.

Measurable Criteria for Determining the Need for Concurrent Federal 
Criminal Jurisdiction

    One comment asked that 28 CFR 50.25(d) include criteria for 
evaluating current law enforcement agencies' successes or failures. 
This comment also asked for the inclusion of a provision identifying 
criteria for assessing existing resources and the application of those 
resources by agencies servicing the tribe requesting the assumption of 
concurrent Federal criminal jurisdiction. An additional comment 
proposed that the final rule should require a ``prima facie'' showing 
by the tribe that concurrent Federal criminal jurisdiction is 
necessary.
    The Department declines to adopt these suggestions. The Department 
will determine which specified factors are relevant to evaluating a 
request for assumption of concurrent Federal jurisdiction in any 
particular case. Such factors will include an assessment of current law 
enforcement agencies' resources and the application of those resources 
within the Indian country of the tribe. Moreover, the tribal request 
must ``explain why the assumption of concurrent Federal criminal 
jurisdiction will improve public safety and criminal law enforcement 
and reduce crime in the Indian country of the requesting tribe.'' 28 
CFR 50.25(b)(2). There is no need to require a ``prima facie'' showing 
that concurrent Federal criminal jurisdiction is necessary.
    One comment noted that the list of factors for consideration in the 
proposed rule, 28 CFR 50.25(d)(4) through (7), is too broadly written 
and does not adequately characterize the standards the Department will 
apply when evaluating a request. The comment requested that the listed 
factors be more clearly defined, and relate to public safety, law 
enforcement needs, and implementation of the TLOA.
    The Department partly concurs with this suggestion and is adding a 
new 28 CFR 50.25(d)(1), which expressly provides for consideration of 
whether consenting to the request will improve public safety and 
criminal law enforcement and reduce crime in the Indian country of the 
requesting tribe.

Threshold Requirements for Tribal Requests

    Three comments suggested that consideration of or consent to tribal 
requests be conditioned on the inclusion of specific features in that 
tribe's justice system, such as due process protections for defendants, 
publicly available criminal codes, procedural and evidentiary rules, 
protections for victims' rights, and procedures to protect victim 
information.
    The Department declines to adopt these suggestions. The Department 
will review information about a requesting tribe's justice system as 
one factor in evaluating a tribal request. But these comments suggest a 
mistaken belief that assumption of concurrent Federal criminal 
jurisdiction will alter the criminal jurisdiction of the tribe making 
the request. Neither this rule nor the statute it implements, 18 U.S.C. 
1162(d), alters existing tribal, State, or local jurisdiction. 
Therefore, there is no need to impose such additional requirements on a 
requesting tribe.

Periodic Assessments and Amendments

    One comment suggested that the rule should include a provision for 
periodic review and should allow for future amendments.
    The Department declines to adopt these suggestions. The statute 
being implemented in this rule, 18 U.S.C. 1162(d), does not provide for 
revisiting decisions to consent to the assumption of concurrent Federal 
criminal jurisdiction; rather, it indicates that such concurrent 
Federal criminal jurisdiction is established when the Attorney General 
consents to a tribal request. To the extent the comment refers to this 
rule, all regulations are subject to potential future amendment; an 
explicit statement to that effect in this rule is unnecessary.

Redundancy and Confusion

    One comment noted that in the proposed rule, 28 CFR 50.25(d)(4) 
through (7) overlaps considerably with 28 CFR 50.25(e) and (g), and 
that 28 CFR 50.25(h) overlaps considerably with 28 CFR 50.25(d) and 
50.25(e). The comment asked that these provisions be consolidated to 
reduce redundancy and avoid possible confusion.
    The Department partly concurs with this suggestion. The Department 
is deleting from the final rule 28 CFR 50.25(e) through (g) of the 
proposed rule, which the Department agrees are substantially redundant 
of provisions in 28 CFR 50.25(d).
    One comment asked that the Department remove the words 
``assumption'' and ``acceptance'' of Federal concurrent jurisdiction 
because the statute being implemented in the rule, 18 U.S.C. 1162(d), 
provides for such jurisdiction automatically by operation of law when 
certain conditions are met.
    The Department declines to adopt this suggestion. Using the words 
``assumption'' and ``acceptance'' adds clarity to the rule.
    One comment suggested that the Department remove references to 
section 221 of the TLOA to avoid confusion and instead refer directly 
to 18 U.S.C. 1162(d).
    The Department concurs with this suggestion and is amending the 
final rule accordingly.

Time Frames

    One comment suggested that the Department change the language in 28 
CFR 50.25(c)(2) from ``promptly'' to ``within 30 days of receipt,'' and 
provide a 60-day comment period.
    The Department concurs with the suggestion to change the language 
in 28 CFR 50.25(c)(2) from ``promptly'' to ``[w]ithin 30 days of 
receipt of a tribal request.'' The Department also concurs with the 
suggestion that the comment period be defined, and is amending the rule 
to include a 45-day comment period. This somewhat shorter comment 
period will help the Department reach a decision within the timeframe 
contemplated in the rule.
    One comment asked that the rule be amended to account for factors 
that may prompt a tribe to request assumption of concurrent Federal 
criminal jurisdiction outside of the two prioritized timeframes.
    The Department declines to adopt this suggestion. The rule as 
written allows a tribe to submit a request at any time and allows the 
Deputy Attorney General to make a final decision on such a request at 
any time. See 28 CFR 50.25(c)(5).
    One comment asks that the rule identify a time limit on the 
duration of the comment period provided to State and local law 
enforcement agencies, to avoid delaying the assumption of concurrent 
Federal criminal jurisdiction.
    The Department concurs with this suggestion and is amending the 
rule to specify a 45-day comment period.

Partial Jurisdiction

    One comment noted that 18 U.S.C. 1162(d) does not provide authority 
for assumption of jurisdiction over a subset

[[Page 76041]]

of violations of the General Crimes and Major Crimes Acts because the 
TLOA makes 18 U.S.C. 1152 and 1153 indivisibly applicable. The same 
comment also notes that 18 U.S.C. 1162(d) does not provide authority 
for assumption of jurisdiction over only part of the Indian country of 
the tribe because 18 U.S.C. 1162(d)(1) states that 18 U.S.C. 1152 and 
1153 ``shall apply in the areas of the Indian country of the Indian 
tribe.''
    As noted in the proposed rule, the Department added this provision 
in response to requests from tribal leaders during tribal consultation. 
While the Department initially believed that the language of the 
statute was sufficiently ambiguous to permit requests for assumption of 
concurrent Federal criminal jurisdiction over a subset of violations of 
the General Crimes and Major Crimes Acts or in a limited geographic 
portion of the tribe's Indian country, upon further review the 
Department now concludes that such an interpretation does not have 
sufficient support in the language or legislative history of the TLOA. 
Moreover, such partial jurisdiction could create practical 
difficulties, complicating further the complex criminal jurisdictional 
rules of Federal Indian law. Accordingly, the rule is being modified to 
remove the reference to partial assumptions of concurrent criminal 
jurisdiction. We note, however, that for those tribes whose Indian 
country is located partly in a State with mandatory criminal 
jurisdiction under Public Law 280 and partly in a State that does not 
have such mandatory Public Law 280 jurisdiction, the tribe's request 
for the assumption of concurrent Federal criminal jurisdiction under 
this rule would pertain only to that part of the tribe's Indian country 
that is located in a State with mandatory criminal jurisdiction under 
Public Law 280.

State Interests

    One comment suggests providing notice to and accepting input from 
State governors or their designees.
    The Department concurs with this suggestion and is amending the 
final rule to require that the Office of Tribal Justice copy the 
relevant governor's office on the notices sent to State or local law 
enforcement agencies when a request for assumption of concurrent 
Federal criminal jurisdiction is received.

Appeals

    One comment asks that the rule include a provision stating that 
granted requests are non-appealable in the same way denied requests are 
non-appealable under 28 CFR 50.25(h)(4) of the proposed rule.
    The Department concurs with this suggestion and is amending the 
final rule accordingly.

Additional Changes

    The Department is amending the rule to note that requests will be 
accepted as soon as the rule becomes effective. As noted above, tribes 
that have submitted requests prior to the effective date should 
resubmit the requests and ensure that their requests conform to the 
requirements of the final rule.

Regulatory Certifications

Executive Order 12866--Regulatory Planning and Review

    This regulation has been drafted and reviewed in accordance with 
section 1(b) of Executive Order 12866 of September 30, 1993 
(``Regulatory Planning and Review''), as amended. The Department of 
Justice has determined that this rule is a ``significant regulatory 
action'' under Executive Order 12866, section 3(f), and, accordingly, 
this rule has been reviewed by the Office of Management and Budget.

Executive Order 13132--Federalism

    This regulation will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. The statutory process provided under 18 
U.S.C. 1162(d) allows the United States to assume concurrent criminal 
jurisdiction over offenses in a particular area of Indian country, 
without eliminating or affecting the State's existing criminal 
jurisdiction, and this rule does not expand or change this 
authorization. This regulation merely establishes procedures providing 
for the Deputy Attorney General, by delegation, to make an informed 
decision in considering, in consultation with other Federal, tribal, 
State, and local authorities, whether or not to consent to a request 
from an individual tribe for the Federal Government to assume 
concurrent criminal jurisdiction within that tribe's Indian country. 
Even if the Deputy Attorney General exercises his discretion to assume 
concurrent jurisdiction under this regulation, the State retains all of 
its existing jurisdiction. Furthermore, the Department of Justice will 
work with the relevant State and local agencies to determine how best 
to share concurrent criminal jurisdiction with the State and (where 
applicable) the tribe and to coordinate investigations and 
prosecutions, just as the Department works with States and tribes in 
other areas with concurrent criminal jurisdiction. Therefore, in 
accordance with Executive Order 13132 of August 4, 1999, it is 
determined that this rule does not have sufficient federalism 
implications to warrant the preparation of a federalism assessment.

Executive Order 12988--Civil Justice Reform

    This regulation meets the applicable standards set forth in section 
3(a) and (b)(2) of Executive Order 12988 of February 5, 1996.

Executive Order 13175--Consultation and Coordination with Indian Tribal 
Governments

    This rule comports with Executive Order 13175 of November 6, 2000. 
The rule has significant tribal implications, as it will have 
substantial direct effects on one or more Indian tribes and on the 
relationship between the Federal Government and Indian tribes. The 
Department therefore has engaged in meaningful consultation and 
collaboration with tribal officials in developing this rule. More 
specifically, the Department of Justice participated in six 
consultations with tribal officials on the Tribal Law and Order Act of 
2010. The dates and locations of those tribal consultations were as 
follows:

     October 14, 2010, in Billings, Montana
     October 20, 2010, in Albuquerque, New Mexico
     October 28, 2010, in Miami, Florida
     November 16, 2010, in Albuquerque, New Mexico
     December 8, 2010, in Palm Springs, California
     March 23, 2011, in Hayward, Wisconsin

    The last two consultation sessions focused on section 221 of Public 
Law 111-211, and the March 23, 2011 consultation expressly addressed a 
draft version of the proposed rule.
    During these consultations, some tribal officials expressed a 
desire to see the Attorney General consent to each and every tribal 
request for concurrent Federal criminal jurisdiction. Other tribal 
officials raised more specific concerns. In direct response to the 
latter, the Department of Justice significantly rewrote portions of the 
proposed rule that is now being finalized. Seven changes included in 
the final rule are particularly noteworthy.
    First, rather than providing that the Department will attempt to 
give priority

[[Page 76042]]

only to those tribal requests received by August 31 of any calendar 
year, the final rule provides that the Department will attempt to give 
priority to requests received by August 31 or by February 28. This 
change effectively doubles the number of annual cycles in which the 
Department will attempt to consider tribal requests on a prioritized 
basis.
    Second, the final rule clarifies why it is unnecessary, under the 
Department's view of the applicable statutes, for tribes in 
``optional'' Public Law 280 jurisdictions to submit individual requests 
for formal acceptance of concurrent Federal criminal jurisdiction.
    Third, the final rule clarifies that Federal agencies are to supply 
comments and information relevant to each tribal request, rather than 
merely announcing their overall support or opposition for each request.
    Fourth, the final rule reiterates that the assumption of concurrent 
Federal criminal jurisdiction under 18 U.S.C. 1162(d) does not require 
the agreement, consent, or concurrence of any State or local 
government.
    Fifth, the final rule expressly provides that the Department's 
Office of Tribal Justice may give appropriate technical assistance to 
any tribe that wishes to prepare and submit a renewed request, 
following the denial of an earlier request.
    Sixth, the final rule states that the assumption of concurrent 
Federal criminal jurisdiction will commence within six months of the 
decision to assume jurisdiction, if feasible, rather than merely 
mandating action within twelve months.
    Seventh and finally, the final rule requires that notice of a 
decision consenting to the request for assumption of concurrent Federal 
criminal jurisdiction will be published in the Federal Register.
    The Department of Justice thus believes that many of the concerns 
that tribal officials expressed about 18 U.S.C. 1162(d) and the draft 
proposed regulation at the tribal consultations in 2010 and 2011 have 
now been met.

Regulatory Flexibility Act

    The Attorney General, in accordance with the Regulatory Flexibility 
Act, 5 U.S.C. 605(b), has reviewed this regulation and by approving it 
certifies that this regulation will not have a significant economic 
impact on a substantial number of small entities. This rule provides 
only a framework for processing requests by Indian tribes for the 
assumption of concurrent Federal criminal jurisdiction over certain 
Indian country crimes, as provided for by 18 U.S.C. 1162(d).

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector of $100 
million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995, Public Law 104-4.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 251 of the 
Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 
804. This rule will not result in an annual effect on the economy of 
$100 million or more; a major increase in costs or prices; or 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or the ability of United States-based 
companies to compete with foreign-based companies in domestic and 
export markets.

Paperwork Reduction Act

    This final rule contains a new ``collection of information'' 
covered by the Paperwork Reduction Act of 1995 (PRA), as amended, 44 
U.S.C. 3501-3521. Under the PRA, a covered agency may not conduct or 
sponsor, and a person is not required to respond to, a collection of 
information unless it displays a currently valid control number 
assigned by the Office of Management and Budget (OMB). 44 U.S.C. 
3507(a)(3), 3512. The information collection in this final rule 
requires Indian tribes seeking assumption of concurrent criminal 
jurisdiction by the United States to provide to the Department certain 
information relating to public safety within the Indian country of the 
tribe. The Department submitted an information collection request to 
OMB for review and approval in accordance with the review procedures of 
the PRA. OMB approved the collection on September 27, 2011, and 
assigned OMB control number 1105-0091. The Department of Justice did 
not receive any comments specifically about the proposed collection.

List of Subjects in 28 CFR Part 50

    Administrative practice and procedure, Crime, Indians.

    Accordingly, for the reasons set forth in the preamble, part 50 of 
chapter I of title 28 of the Code of Federal Regulations is amended as 
follows:

PART 50--STATEMENTS OF POLICY

0
1. The authority citation for part 50 is revised to read as follows:

    Authority:  5 U.S.C. 301; 18 U.S.C. 1162; 28 U.S.C. 509, 510; 42 
U.S.C. 1921 et seq., 1973c; and Public Law 107-273, 116 Stat. 1758, 
1824.


0
2. Section 50.25 is added to read as follows:


Sec.  50.25  Assumption of concurrent Federal criminal jurisdiction in 
certain areas of Indian country.

    (a) Assumption of concurrent Federal criminal jurisdiction. (1) 
Under 18 U.S.C. 1162(d), the United States may accept concurrent 
Federal criminal jurisdiction to prosecute violations of 18 U.S.C. 1152 
(the General Crimes, or Indian Country Crimes, Act) and 18 U.S.C. 1153 
(the Major Crimes, or Indian Major Crimes, Act) within areas of Indian 
country in the States of Alaska, California, Minnesota, Nebraska, 
Oregon, and Wisconsin that are subject to State criminal jurisdiction 
under Public Law 280, 18 U.S.C. 1162(a), if the tribe requests such an 
assumption of jurisdiction and the Attorney General consents to that 
request. Once the Attorney General has consented to an Indian tribe's 
request for assumption of concurrent Federal criminal jurisdiction, the 
General Crimes and Major Crimes Acts shall apply in the Indian country 
of the requesting tribe that is located in any of these ``mandatory'' 
Public Law 280 States, and criminal jurisdiction over those areas shall 
be concurrent among the Federal Government, the State government, and 
(where applicable) the tribal government. Assumption of concurrent 
Federal criminal jurisdiction under 18 U.S.C. 1162(d) does not require 
the agreement, consent, or concurrence of any State or local 
government.
    (2) Under 25 U.S.C. 1321(a)(2), the United States may exercise 
concurrent Federal criminal jurisdiction in other areas of Indian 
country as to which States have assumed ``optional'' Public Law 280 
criminal jurisdiction under 25 U.S.C. 1321(a), if a tribe so requests 
and after consultation with and consent by the Attorney General. The 
Department's view is that such concurrent Federal criminal jurisdiction 
exists under applicable statutes in these areas of Indian country, even 
if the Federal Government does not formally accept such jurisdiction in 
response to petitions from individual tribes. This rule therefore does 
not establish procedures for processing requests from tribes under 25 
U.S.C. 1321(a)(2).

[[Page 76043]]

    (b) Request requirements. (1) A tribal request for assumption of 
concurrent Federal criminal jurisdiction under 18 U.S.C. 1162(d) shall 
be made by the chief executive official of a federally recognized 
Indian tribe that occupies Indian country listed in 18 U.S.C. 1162(a). 
For purposes of this section, a chief executive official may include a 
tribal chairperson, president, governor, principal chief, or other 
equivalent position.
    (2) The tribal request shall be submitted in writing to the 
Director of the Office of Tribal Justice at the Department of Justice. 
The first page of the tribal request shall be clearly marked: ``Request 
for United States Assumption of Concurrent Federal Criminal 
Jurisdiction.'' The tribal request shall explain why the assumption of 
concurrent Federal criminal jurisdiction will improve public safety and 
criminal law enforcement and reduce crime in the Indian country of the 
requesting tribe. The tribal request shall also identify each local or 
State agency that currently has jurisdiction to investigate or 
prosecute criminal violations in the Indian country of the tribe and 
shall provide contact information for each such agency.
    (c) Process for handling tribal requests. (1) Upon receipt of a 
tribal request, the Office of Tribal Justice shall:
    (i) Acknowledge receipt; and
    (ii) Open a file.
    (2) Within 30 days of receipt of a tribal request, the Office of 
Tribal Justice shall:
    (i) Publish a notice in the Federal Register, seeking comments from 
the general public;
    (ii) Send written notice of the request to the State and local 
agencies identified by the tribe as having criminal jurisdiction over 
the tribe's Indian country, with a copy of the notice to the governor 
of the State in which the agency is located, requesting that any 
comments be submitted within 45 days of the date of the notice;
    (iii) Seek comments from the relevant United States Attorney's 
Offices, the Federal Bureau of Investigation, and other Department of 
Justice components that would be affected by consenting to the request; 
and
    (iv) Seek comments from the Department of the Interior (including 
the Bureau of Indian Affairs), the Department of Homeland Security, 
other affected Federal departments and agencies, and Federal courts.
    (3) As soon as possible but not later than 30 days after receipt of 
a tribal request, the Office of Tribal Justice shall initiate 
consultation with the requesting tribe, consistent with applicable 
Executive Orders and Presidential Memoranda on tribal consultation.
    (4) To the extent appropriate and consistent with applicable laws 
and regulations, including requirements of the Privacy Act of 1974, as 
amended, 5 U.S.C. 552a, governing personally identifiable information, 
and with the duty to protect law enforcement sensitive information, the 
Office of Tribal Justice may share with the requesting tribe any 
comments from other parties and provide the tribe with an opportunity 
to respond in writing.
    (5) An Indian tribe may submit a request at any time after the 
effective date of this rule. However, requests received by February 28 
of each calendar year will be prioritized for decision by July 31 of 
the same calendar year, if feasible; and requests received by August 31 
of each calendar year will be prioritized for decision by January 31 of 
the following calendar year, if feasible. The Department will seek to 
complete its review of prioritized requests within these time frames, 
recognizing that it may not be possible to do so in each instance.
    (d) Factors. Factors that will be considered in determining whether 
or not to consent to a tribe's request for assumption of concurrent 
Federal criminal jurisdiction include the following:
    (1) Whether consenting to the request will improve public safety 
and criminal law enforcement and reduce crime in the Indian country of 
the requesting tribe.
    (2) Whether consenting to the request will increase the 
availability of law enforcement resources for the requesting tribe, its 
members, and other residents of the tribe's Indian country.
    (3) Whether consenting to the request will improve access to 
judicial resources for the requesting tribe, its members, and other 
residents of the tribe's Indian country.
    (4) Whether consenting to the request will improve access to 
detention and correctional resources for the requesting tribe, its 
members, and other residents of the tribe's Indian country.
    (5) Other comments and information received from the relevant 
United States Attorney's Offices, the Federal Bureau of Investigation, 
and other Department of Justice components that would be affected by 
consenting to the request.
    (6) Other comments and information received from the Department of 
the Interior (including the Bureau of Indian Affairs), the Department 
of Homeland Security, other affected Federal departments and agencies, 
and Federal courts.
    (7) Other comments and information received from tribal 
consultation.
    (8) Other comments and information received from other sources, 
including governors and State and local law enforcement agencies.
    (e) Decision. (1) The decision whether to consent to a tribal 
request for assumption of concurrent Federal criminal jurisdiction 
shall be made by the Deputy Attorney General after receiving written 
recommendations from the Office of Tribal Justice, the Executive Office 
for United States Attorneys, and the Federal Bureau of Investigation.
    (2) The Deputy Attorney General will:
    (i) Consent to the request for assumption of concurrent Federal 
criminal jurisdiction, effective as of some future date certain within 
the next twelve months (and, if feasible, within the next six months), 
with or without conditions, and publish a notice of the consent in the 
Federal Register;
    (ii) Deny the request for assumption of concurrent Federal criminal 
jurisdiction; or
    (iii) Request further information or comment before making a final 
decision.
    (3) The Deputy Attorney General shall explain the basis for the 
decision in writing.
    (4) The decision to grant or deny a request for assumption of 
concurrent Federal criminal jurisdiction is not appealable. However, at 
any time after a denial of such a request, a tribe may submit a renewed 
request for assumption of concurrent Federal criminal jurisdiction. A 
renewed request shall address the basis for the prior denial. The 
Office of Tribal Justice may provide appropriate technical assistance 
to any tribe that wishes to prepare and submit a renewed request.
    (f) Retrocession of State criminal jurisdiction. Retrocession of 
State criminal jurisdiction under Public Law 280 is governed by 25 
U.S.C. 1323(a) and Executive Order 11435 of November 21, 1968. The 
procedures for retrocession do not govern a request for assumption of 
concurrent Federal criminal jurisdiction under 18 U.S.C. 1162(d).

    Dated: November 28, 2011.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2011-31313 Filed 12-5-11; 8:45 am]
BILLING CODE 4410-07-P