03-19314. Law and Order on Indian Reservations

AGENCY:

Bureau of Indian Affairs, Interior.

ACTION:

Final rule and request for comments.

SUMMARY:

The Bureau of Indian Affairs is amending its regulations that govern law and order on Indian reservations. This rule removes the Paiute-Shoshone Indian Tribe of the Fallon Reservation and Colony (Western Region, Nevada) from the listing of Courts of Indian Offenses. The tribe has reassumed tribal court function and has requested their removal from the list.

DATES:

This rule is effective on July 30, 2003. Comments must be received on or before September 29, 2003.

ADDRESSES:

Send comments on this rule to Ralph Gonzales, 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 Government Officer, Western Regional Office, Bureau of Indian Affairs, 400 N. Fifth Street, Phoenix, Arizona, 85004, [phone]; or Ralph Gonzales, Branch of Judicial Services, Office of Tribal Services, Bureau of Indian Affairs, 1951 Constitution Avenue, NW., MS 320-SIB, Washington, DC 20240, [phone].

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 (BIA) 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. On September 24, 2002, the BIA published a final rule (67 FR 59781) establishing the Court of Indian Offenses for an indefinite period. 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 reassumed the tribal court function and notified the BIA by Tribal Resolution No. 03-F-054 that it is operating the court in accordance with its Constitution, Article VI, Section 1(h), and requested the removal of their listing from 25 CFR 11.100(a).

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. For this reason, 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 5 U.S.C. 553(d) requirement of publication 30 days in advance of the effective date. This is because of the critical need to ensure that uninterrupted court services are provided 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 operational cost of the tribal court is estimated to be less than $200,000 annually. The cost associated with the operation of this court will be with the Bureau of Indian Affairs and the tribe.

(b) This rule will not create inconsistencies with other agencies' actions. The Department of the Interior, through the Bureau of Indian Affairs, has responsibility and authority to ensure that there are judicial systems in place on Indian reservations to protect persons, land, lives and property of people residing there.

(c) This rule will not materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients. This tribal court 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 people within the tribe's reservation and colony.

(d) This rule will not raise novel legal or policy issues. Tribal governments have inherent sovereign authority to establish their own form of government, including tribal justice systems (25 U.S.C. 3601).

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) removes the Paiute-Shoshone Indian Tribe of the Fallon Reservation and Colony (Western Region, Nevada) from the listing of Courts of Indian Offenses. 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. This court's operating cost is estimated to be less than $200,000 annually. The cost associated with the operation of this court will be with the BIA and the 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 justice for people located within the exterior 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 justice for people located within the exterior 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 tribal court will not have jurisdiction to affect any rights of small governments. Its primary function will be to administer justice for people within the Fallon Indian Reservation and Colony.

(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 provide for a tribal justice system with jurisdiction over people within a limited geographical area at Fallon, Nevada. Accordingly, there will be no jurisdictional basis for the tribal court to affect adversely any property interest outside of its jurisdiction.

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 the recognition by the Federal Government of a tribe's inherent authority to establish their own justice systems 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). The Paiute-Shoshone Indian Tribe of the Fallon Reservation and Colony (Western Region, Nevada) is acting under the purview of this provision in reassuming the judicial function on their reservation.

Civil Justice Reform (Executive Order 12988)

In accordance with Executive Order 12988, it has been 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. Congress, through statutes, treaties, and the exercise of administrative authorities, has recognized the self-determination, self-reliance, and inherent sovereignty of Indian tribes to establish their own form of government, including tribal justice systems (25 U.S.C. 3601).

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 jurisdiction over people 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. This tribal court exercises jurisdiction over people 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 is exercising its inherent sovereignty by providing a judicial system for people within the exterior boundaries of the Paiute-Shoshone Indian Tribe of the Fallon Reservation and Colony. The Department of the Interior is fulfilling its trust responsibility and complying with the unique government-to-government relationship that exists between the Federal Government and Indian tribes by assisting the Paiute-Shoshone Indian Tribe of the Fallon Reservation and Colony to support this justice system.

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 follows:

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.

§ 11.100

[Amended]

2. In § 11.100, remove paragraph (a)(15).

Dated: July 18, 2003.

Aurene M. Martin,

Acting Assistant Secretary—Indian Affairs.