04-2842. Internal Law Enforcement Services Policies

AGENCY:

Bureau of Indian Affairs, Interior.

ACTION:

Notice.

SUMMARY:

This notice publishes internal policies on Cross-Deputation Agreements, Memoranda of Understanding, Memoranda of Agreement, and Special Law Enforcement Commission Deputation Agreements. These policies apply to all Cross-Deputation Agreements, Memoranda of Understanding, Memoranda of Agreement, and Special Law Enforcement Commission Deputation Agreements.

DATES:

These policies are effective February 10, 2004.

FOR FURTHER INFORMATION CONTACT:

Peter Maybee, Executive Officer, Bureau of Indian Affairs, Law Enforcement Services Washington, DC Liaison Office, 1849 C Street, NW., Washington, DC 20240; Telephone No. [phone].

SUPPLEMENTARY INFORMATION:

Introduction

This notice is published in the exercise of authority under the Indian Law Enforcement Reform Act, 25 U.S.C. 2801 et seq., 5 U.S.C. 552(a), 5 U.S.C. 301, 25 U.S.C. 2 and 9, 43 U.S.C. 1457, and under the exercise of authority delegated by the Secretary of the Interior to the Assistant Secretary—Indian Affairs by 209 Departmental Manual 8.

To clarify the existing policies of the Bureau of Indian Affairs (BIA) Law Enforcement Services (OLES) regarding the authority and obligations of parties to Memoranda of Agreement (MOAs), Memoranda of Understanding (MOUs), Cross Deputation Agreements (CDAs), and in particular, Special Law Enforcement Commission (SLECs) Deputation Agreements, the Assistant Secretary—Indian Affairs (AS-IA) is publishing these policies. Questions regarding the current policies have been raised by Federal, tribal, and local law enforcement; therefore, the AS-IA is making these policies public so the public may have a clearer understanding of the policies which have governed all these types of agreements.

An agency may clarify its policies, procedures, and implementation of its own regulations where these clarifications do not contradict or alter the regulations. These clarified policies do not change the law enforcement regulations. Rather, these clarifications restate to outside parties what has been and continues to be the practice and understanding of the BIA regarding such agreements. This Federal Register notice is to advise all parties to Indian country law enforcement agreements, as well as all other interested persons and organizations, of the BIA's policies, understandings, and expectations related to these agreements, though the issues raised here may not be exhaustive.

The Federal Government has an interest in promoting strong tribal governments with the ability to protect the health and welfare of their members. Inherent in this relationship is strong and effective law enforcement in Indian country. Due to variations in state policies, paired with Indian country crime rates well above the national average, there is a public health and safety need in Indian country that must be addressed. Another issue over the years has been lack of jurisdictional clarity, making state and local officials reluctant to either arrest or prosecute in Indian country. This lack of prosecution in Indian country has compounded the problem.

Under the Indian Law Enforcement Reform Act, 25 U.S.C. 2801-2809, and the corresponding regulations at 25 CFR part 12, the Secretary of the Interior, acting through BIA, is charged with providing, or assisting in the provision of, law enforcement in Indian country. This is true nationwide—throughout Indian country and in the areas near and adjacent to Indian country. To increase the effectiveness of law enforcement in Indian country, the authority and status of law enforcement officers, relationships among and between law enforcement departments, as well as potential liability and liability coverage, must be clear. Law enforcement officers are expected to appear a certain way, use certain equipment, and drive certain vehicles both for the safety of the officers and for the safety of the public. The BIA's internal policies prescribe all of these standards and recognize that officers maintain their status when they are outside Indian country. The BIA's policy makes clear that although officers will not as a rule conduct investigations or make arrests outside Indian country, they maintain their law enforcement officers' responsibilities and certain authorities irrespective of whether they are located in Indian country.

To assist the AS-IA in fulfilling the BIA's duties to provide law enforcement in Indian country and to make clear important policies and working relationships, the BIA OLES enters into MOAs, MOUs, CDAs, and SLEC agreements (pursuant to which it grants special law enforcement commissions to tribal and local law enforcement officers). SLECs support the sovereignty of tribes by allowing tribal law enforcement officers to enforce Federal law, to investigate Federal crimes, and to protect the rights of people in Indian country, particularly against crimes perpetrated by non-Indians against tribal members. Without such commissions, tribal law enforcement in many jurisdictions is limited to restraining these perpetrators until a county, State, or Federal officer arrives. It is common for tribes to have difficulty getting local or State law enforcement to respond to crimes on the reservations. For example, it is difficult to get local law enforcement to respond to domestic violence calls and illegal disposal activities in Indian country. As a result, there is a critical void in law enforcement in Indian country that these SLECs fill.

Due to the nature of law enforcement in Indian country, SLEC officers will often have to respond to calls where it is unclear initially whether they are responding in their Federal or tribal capacity. The Federal Government has an interest in ensuring that Federal and federally commissioned officers are able to respond to calls immediately and with all of the necessary and recommended law enforcement tools. The Federal Government and the Department also have an interest in promoting strong tribal governments capable of effectively carrying out law enforcement in Indian country. The Government further has an interest in ensuring the tribes' sovereign rights to do so are respected and the boundaries of Indian country do not impede officers' travel, use of marked vehicles, emergency response, and other incidental aspects of their Indian country policing authority.

To ensure the SLEC tribal officers are fully qualified to enforce Federal law and to perform functions which would otherwise be performed by BIA officers, the BIA has established certain minimum standards and certification requirements for potential officers. The BIA OLES conditions officer commissions on meeting these requirements. The Chief of Police of a tribe must perform an FBI criminal history check on each officer and certify the officers are both full-time employees with a law enforcement program and certified through either the State or the BIA. If an officer is not yet certified by one of the two entities, the BIA provides training before commissioning an officer. These officers must also meet other requirements such as firearms certification and maintaining a record free of any felonies. The SLECs expire after 3 years, when the Chief of Police must recertify the qualifications of the officers, and the officers must reapply for SLECs.

For SLEC officers to be used effectively to fill this void, it is important that all parties involved in Indian country law enforcement have a clear understanding of each of their roles and expectations. The BIA expects that, first, liability coverage under the Federal Tort Claims Settlement Act (FTCA) may be available to officers carrying Federal SLECs, but the Department of Justice makes all determinations on FTCA coverage on a case-by-case, factual basis, and their decisions are final. Second, because coordination is the foundation on which effective Indian country law enforcement is based, the BIA encourages full and open coordination between and among relevant tribal, local, and Federal law enforcement, and any relevant task forces or other similar organizations. Whenever possible the BIA encourages the relevant parties to enter agreements governing these cooperative relationships. The BIA will work with any parties to help accomplish this goal. There must also be coordination and communication among law enforcement entities, including local United States Attorney's offices, on Federal policing and prosecutorial practices and on particular cases and prosecutions where appropriate. Finally, the BIA expects that tribes and local law enforcement will maintain appropriate training and policies to ensure that their officers will be able to maintain the appropriate level of training and are otherwise prepared to perform their duties as SLEC officers. The BIA will also assist law enforcement organizations in developing these policies and training standards.

By clarifying the BIA's understandings and expectations of agencies participating in Indian country law enforcement, it is the AS-IA's intent to provide a strong basis on which to build and strengthen these essential relationships. With strong relationships and communication, the BIA and tribal, local, and other Federal law enforcement can better meet the law enforcement, public health, and safety needs of people in Indian country.

Dated: January 22, 2004.

Aurene M. Martin,

Principal Deputy Assistant Secretary—Indian Affairs.