[Federal Register Volume 61, Number 130 (Friday, July 5, 1996)]
[Proposed Rules]
[Pages 35158-35163]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16039]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 11
RIN 1076-AD76
Law and Order on Indian Reservations
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Proposed rule.
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SUMMARY: The Bureau of Indian Affairs is proposing to amend its
regulations governing Courts of Indian Offenses to clarify the
authority of the Assistant Secretary for Indian Affairs to establish
the courts, the jurisdiction of the courts, their relationship to
tribal governments and the Department of the Interior, and to provide
those courts with an updated code of laws.
DATES: Comments must be received on or before October 3, 1996.
ADDRESSES: Comments are to be mailed to Bettie Rushing, Office of
Tribal Services, Bureau of Indian Affairs, 1849 C Street, NW, MS 2611-
MIB, Washington, DC 20240; or, hand delivered to Room 4603 at the same
address.
FOR FURTHER INFORMATION CONTACT: Bettie Rushing, Bureau of Indian
Affairs (202) 208-3463.
SUPPLEMENTARY INFORMATION:
Background
The comments received in response to a prior proposed rule
published on October 24, 1985, and published as a final rule on October
21, 1993, included suggestions for the inclusion of new provisions in
the Law and Order Code (Code). Because the inclusion of the suggested
provisions in the final rule would have constituted new matter adopted
without opportunity for general public comment, a separate rule is now
proposed for those provisions to be added to the Code.
This proposed rule (1) provides for the establishment of courts
when tribal justice systems are not functioning, (2) changes the method
of listing Indian reservations to which the Code applies, (3) clarifies
the provision on jurisdictional limitations which excludes from
jurisdiction under this part Federal employees acting within the scope
of their employment, (4) adds provisions for drug abuse, abuse of
psychotoxic substances, child abuse, prostitution, and family violence,
and (5) increases the maximum penalties for various offenses in the
Code.
The increased penalties are proposed in response to the law
enforcement provisions of the Anti-Drug Abuse Act of 1986, amending the
sentencing limitations of the Indian Civil Rights Act, 25 U.S.C. 1302.
Indian may courts to impose maximum fines up to $5,000 and sentences of
imprisonment up to one year.
Inclusion in Sec. 11.100, Listing of Courts of Indian Offenses,
does not defeat the inherent sovereignty of a tribe to establish tribal
courts and exercise jurisdiction under tribal law. Tillett v. Lujan,
931 F.2d 636, 640 (10th Cir. 1991) (C.F.R. courts ``retain some
characteristics of an agency of the federal government'' but they
``also function as tribal courts''); Combrink v. Allen, 20 Indian L.
Rep. 6029, 6030 (Ct. Ind. App., Tonkawa, Mar. 5, 1993) (C.F.R. court is
a ``federally administered tribal court''); Ponca Tribal Election Board
v. Snake, 17 Indian L. Rep. 6085, 6088 (Ct. Ind. App., Ponca, Nov. 10,
1988) (``The Courts of Indian Offenses act as tribal courts since they
are exercising the sovereign authority of the tribe for which the court
sits.''). Such exercise of inherent sovereignty and the establishment
of tribal courts shall comply with the requirements set forth in 25 CFR
Sec. 11.100(c).
A clarifying sentence has been added to the jurisdictional
limitations section to express unambiguously that Federal and state
employees acting within the scope of their employment are not subject
to the jurisdiction of Courts of Indian Offenses.
The new offenses are abuse of psychotoxic chemical solvents and
dangerous drug offense. They are also proposed in response to the Anti-
Drug Abuse Act, and are intended to enhance the ability of law
enforcement agencies on Indian reservations to prevent and penalize the
traffic of illegal narcotics and the misuse of dangerous substances.
The two sections were suggested by the Anadarko Area Law Enforcement
Office of the Bureau of Indian Affairs. No specific exception for
peyote is included because peyote for religious use by the Native
American Church is excluded from prosecution under the referenced
federal statute.
Prostitution was inadvertently omitted from the revision of the Law
and Order Code and is, therefore, included here. The crime is a
continuation of the provision contained in 25 CFR Part 11 which has
been in force for many years, with the addition of the crime of
pandering which is intended to facilitate the prosecution of persons
procuring for prostitutes.
Child abuse and neglect has been added as a separate criminal
offense. Its inclusion was inspired by the Draft
[[Page 35159]]
Child/Family Protection Code developed by the National Indian Justice
Center for the Bureau of Indian Affairs. Although there is some
overlapping of these offenses and the sexual assault provisions of the
revised Law and Order Code, the abuse provision is much broader and
will give prosecutors more flexibility in protecting children from
abuse. The mandatory reporting provision was added to conform with the
Bureau's administrative reporting requirements.
The family violence subpart establishes a new procedure for acts of
family violence. This approach to family violence reflects the decision
set forth in Thurman v. City of Torrington, 595 F. Supp. 1521 (D. Conn.
1984). Thurman filed an action against the city alleging a violation of
equal protection for the city's failure to provide the same type of
protection to persons in a family relationship as it provides to other
abused persons. The court, finding that Thurman had a cause of action
under the equal protection clause, held that the city had an
affirmative duty to treat family partners as it would other abused
persons. The knowledge that arrests deter subsequent family violence
has resulted in all states passing some type of special legislation for
acts of family violence. Forty-eight states have warrantless arrest
provisions and many have special protective orders. This subpart is
drawn from those statutes. Although much of this subpart is procedural,
we have not included it in the procedures sections. Because the
procedure is complicated, comprehensive and applicable to only one
general situation, we concluded that it deserved its own subpart under
Part 11.
The proposed rule will not require additional staffing for these
courts. It is not anticipated that this revision will have a
significant effect on the annual caseload of these courts because it
does not enlarge their jurisdiction. Prosecutors must routinely use
their discretion in balancing their workloads with the time and
prosecutorial resources available. Likewise, in sentencing convicted
defendants, judges are acutely aware of the constraints imposed by
limited jail space.
Courts of Indian Offenses are funded in their entirety by the
Federal Government and do not receive additional funding from tribal
governments. Because we do not foresee any economic effect on Courts of
Indian Offenses as a result of these amendments, there will be no
requirement of additional outlays by the Federal Government or the
tribes affected by the proposed amendments.
Certification and Evaluation
The authority to issue this amendment 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 authorize appropriations for ``Indian judges.''
Publication of the proposed rule by the Department of the Interior
(Department) provides the public an opportunity to participate in the
rulemaking process. Interested persons may submit written comments
regarding the proposed rule to the location identified in the
``addresses'' section of this document.
Executive Order 12988
The Department has determined that this proposed rule meets the
applicable standards provided in sections 3(a) and 3(b)(2) of Executive
Order 12988.
Executive Order 12866
This proposed rule is not a significant regulatory action under
Executive Order 12866.
Regulatory Flexibility Act
This proposed rule will not have a significant economic impact on a
substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.).
Executive Order 12630
The Department has determined that this proposed rule does not have
``significant'' takings implications. The proposed rule does not
pertain to ``taking'' of private property interests, nor does it impact
private property.
Executive Order 12612
The Department has determined that this proposed rule does not have
significant federalism effects because it pertains solely to Federal-
tribal relations and will not interfere with the roles, rights and
responsibilities of states.
NEPA Statement
The Department has determined that this proposed rule does not
constitute a major Federal action significantly affecting the quality
of the human environment and that no detailed statement is required
pursuant to the National Environmental Policy Act of 1969.
Unfunded Mandates Act of 1995
This proposed rule imposes no unfunded mandates on any governmental
or private entity and is in compliance with the provisions of the
Unfunded Mandates Act of 1995.
Paperwork Reduction Act of 1995
This rule has been examined under the Paperwork Reduction Act of
1995 and has been found to contain no information collection
requirements.
Drafting Information
The primary authors of this document are Neil R. McDonald, Office
of the Solicitor, Division of Indian Affairs, and Bettie Rushing,
Office of Tribal Services, Bureau of Indian Affairs, Department of the
Interior.
List of Subjects in 25 CFR Part 11
Courts, Indians--law, Law enforcement, Penalties.
For the reasons set out in the preamble, Part 11 of Chapter 1 of
Title 25 of the Code of Federal Regulations is proposed to be amended
as set forth below.
PART 11--COURTS OF INDIAN OFFENSES AND LAW AND ORDER CODE
1. The authority citation for 25 CFR 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.
Subpart A--Application; Jurisdiction
2. Section 11.100 is amended by revising paragraphs (a), (b) and
(c) to read as follows:
Sec. 11.100 Where are Courts of Indian Offenses established?
(a) Unless indicated otherwise in this title, the regulations in
this part apply to the Indian country (as defined in 18 U.S.C. 1151)
occupied by the following tribes:
(1) Red Lake Band of Chippewa Indians (Minnesota).
(2) Confederated Tribes of the Goshute Reservation (Nevada).
(3) Lovelock Paiute Tribe (Nevada).
(4) Te-Moak Band of Western Shoshone Indians (Nevada).
(5) Yomba Shoshone Tribe (Nevada).
(6) Kootenai Tribe (Idaho).
(7) Shoalwater Bay Tribe (Washington).
(8) Eastern Band of Cherokee Indians (North Carolina).
(9) For the following tribes located in the former Oklahoma
Territory (Oklahoma):
(i) Absentee Shawnee Tribe of Indians of Oklahoma
(ii) Apache Tribe of Oklahoma
(iii) Caddo Tribe of Oklahoma
(iv) Cheyenne-Arapaho Tribe of Oklahoma
(v) Citizen Band of Potawatomi Indians of Oklahoma
[[Page 35160]]
(vi) Comanche Tribe of Oklahoma (Except Comanche Children's Court)
(vii) Delaware Tribe of Western Oklahoma
(viii) Fort Sill Apache Tribe of Oklahoma
(ix) Iowa Tribe of Oklahoma
(x) Kaw Tribe of Oklahoma
(xi) Kickapoo Tribe of Oklahoma
(xii) Kiowa Tribe of Oklahoma
(xiii) Otoe-Missouria Tribe of Oklahoma
(xiv) Pawnee Tribe of Oklahoma
(xv) Ponca Tribe of Oklahoma
(xvi) Tonkawa Tribe of Oklahoma
(xvii) Wichita and Affiliated Tribes of Oklahoma.
(10) Hoopa Valley Tribe, Yurok Tribe, and Coast Indian Community of
California (California Jurisdiction limited to special fishing
regulations).
(11) Louisiana Area (includes Coushatta and other tribes in the
State of Louisiana which occupy Indian country and which accept the
application of this part);
Provided that this part shall not apply to any Louisiana tribe
other than the Coushatta Tribe until notice of such application has
been published in the Federal Register.
(12) For the following tribes located in the former Indian
Territory (Oklahoma):
(i) Chickasaw Nation
(ii) Choctaw Nation
(iii) Thlopthlocco Tribal Town
(iv) Seminole Nation
(v) Eastern Shawnee Tribe
(vi) Miami Tribe
(vii) Modoc Tribe
(viii) Ottawa Tribe
(ix) Peoria Tribe
(x) Quapaw Tribe
(xi) Wyandotte Tribe
(xii) Seneca-Cayuga Tribe
(xiii) Osage Tribe.
(13) Ute Mountain Ute Tribe (Colorado).
(b) The purpose of the regulations in this part is to provide
adequate machinery for the administration of justice for Indian tribes
in those areas of Indian country where tribes retain jurisdiction over
Indians that is exclusive of state jurisdiction but where tribal courts
have not been established to exercise that jurisdiction or where tribal
justice systems are not functioning.
(c) The regulations in this part continue to apply to tribes listed
in Sec. 11.100(a) until a law and order code which includes the
establishment of a court system has been adopted by the tribe in
accordance with its constitution and by-laws or other governing
documents has become effective, and the Assistant Secretary--Indian
Affairs or his or her designee has received a valid tribal enactment
identifying the future effective date of the code's implementation. The
effective date of the code's implementation must allow 60 days for
publication of the amendment to Sec. 11.100(a) which provides public
notice of the change. The tribally established future effective date
will also be published as the effective date of the change.
* * * * *
3. The headings of the following sections are revised to read as
follows:
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Section Old heading New heading
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11.101.......................... Prospective When are these
application of regulations
regulations. effective?
11.102.......................... Criminal What is the
jurisdiction; criminal
limitation of jurisdiction of
actions. the Court of
Indian Offenses?
11.103.......................... Civil What is the civil
jurisdiction; jurisdiction of
limitation of the Court of
actions. Indian Offenses?
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4. Section 11.104 is amended by revising paragraphs (a) through (d)
to read as follows:
Sec. 11.104 What are the jurisdictional limitations of the Court of
Indian Offenses?
(a) No Court of Indian Offenses may exercise any jurisdiction over
a Federal or state official that it could not exercise if it were a
tribal court. The jurisdiction of Courts of Indian Offenses shall not
extend to Federal or state employees acting within the scope of their
employment.
(b) Unless otherwise provided by a resolution or ordinance of the
tribal governing body of the tribe occupying the Indian country over
which a Court of Indian Offenses has jurisdiction, no Court of Indian
Offenses may adjudicate an election dispute or take jurisdiction over a
suit against the tribe or adjudicate any internal tribal government
dispute.
(c) A decision of the Court of Indian Offenses, acting as a tribal
forum by resolution or ordinance of a tribal governing body under
paragraph (b) of this section, must be given great weight by the Bureau
of Indian Affairs in deciding who is a tribal official.
(d) A tribe may not be sued in a Court of Indian Offenses unless
its tribal governing body explicitly waives its tribal immunity by
tribal resolution or ordinance.
* * * * *
Subpart B--Courts of Indian Offenses; Personnel; Administration
5. Section 11.200 is amended by revising the heading and paragraph
(c) to read as follows:
Sec. 11.200 What is the composition of the Court of Indian Offenses?
* * * * *
(c) Appeals shall be heard by a magistrate who was not involved in
the trial of the case.
* * * * *
6. Section 11.201 is amended by revising the heading and paragraph
(a) to read as follows:
Sec. 11.201 How are magistrates for the Court of Indian Offenses
appointed?
(a) Each magistrate shall be appointed by the Assistant Secretary--
Indian Affairs or his or her designee subject to confirmation by a
majority vote of the tribal governing body of the tribe occupying the
Indian country over which the court has jurisdiction. In the case of
multi-tribal courts, the appointment of the magistrate is subject to
confirmation by a majority of the tribal governing bodies of the tribes
under the jurisdiction of a Court of Indian Offenses. Only the
Assistant Secretary--Indian Affairs may grant a waiver of this
paragraph when discord precludes confirmation, and appoint a magistrate
for a term not to exceed one year.
* * * * *
7. The headings of the following sections are revised to read as
follows:
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Section Old heading New heading
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11.202.......................... Removal of How is a
magistrates. magistrate of the
Court of Indian
Offenses removed?
11.203.......................... Court clerks...... How are the clerks
of the Court of
Indian Offenses
appointed and
what are their
duties?
11.205.......................... Standard governing Are there
appearance of standards for the
attorneys and lay appearance of
counselors. attorneys and lay
counselors?
11.206.......................... Court records..... Is the Court of
Indian Offenses a
court of record?
11.207.......................... Cooperation of What are the
Bureau of Indian responsibilities
Affairs employees. of Bureau of
Indian Affairs
employees?
[[Page 35161]]
11.208.......................... Payment of May Individual
judgments from Indian Money
individual Indian accounts be used
money accounts. for payment of
judgments?
11.209.......................... Disposition of How does the Court
fines. of Indian
Offenses dispose
of fines?
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Subpart C--Criminal Procedure
8. Section 11.315 is amended by revising paragraph (a) to read as
follows:
Sec. 11.315 Sentencing.
(a) Any person who has been convicted in a Court of Indian Offenses
of a criminal offense under the regulations of this part may be
sentenced to one or a combination of the following penalties:
(1) Imprisonment for a period not to exceed the maximum permitted
by the section defining the offense, which in no case shall be greater
than one year.
(2) A money fine in an amount not to exceed the maximum permitted
by the section defining the offense, which in no case shall be greater
than five thousand dollars ($5,000).
* * * * *
Subpart D--Criminal Offenses
9. Section 11.450 is amended by revising paragraph (a) to read as
follows:
Sec. 11.450 Maximum fines and sentences of imprisonment.
(a) A person convicted of an offense under the regulations in this
part may be sentenced as follows:
(1) If the offense is a misdemeanor, to a term of imprisonment not
to exceed one year or to a fine not to exceed five thousand dollars
($5,000), or both;
(2) If the offense is a petty misdemeanor, to a term of
imprisonment not to exceed six months, and to a fine not to exceed five
hundred dollars ($500), or both;
(3) If the offense is a violation, to a term of imprisonment not to
exceed three months or to a fine not to exceed two hundred fifty
dollars ($250), or both.
* * * * *
10. Sections 11.451 through 11.455 are added to read as follows:
Sec. 11.451 Abuse of psychotoxic chemical solvents.
(a) It shall be unlawful purposely to smell or inhale the fumes of
any psychotoxic chemical solvent, or to possess, purchase, or attempt
to possess or purchase any psychotoxic chemical solvent, with the
intention of causing a condition of intoxication, inebriation,
excitement, stupefaction, or the dulling of the brain or nervous
system; or to sell, give away, dispense, or distribute, or offer to
sell, give away, dispense, or distribute any psychotoxic chemical
solvent knowing or believing that the purchaser or another intends to
use the solvent in violation of this section.
(b) This section shall not apply to the inhalation of anesthesia
for medical or dental purposes.
(c) As used in this section, ``psychotoxic chemical solvent''
includes any glue, gasoline, paint, hair spray, lysol, or other
substance containing one or more of the following chemical compounds:
acetone and acetate, benzene, butyl-alcohol, methyl ethyl, peptone,
pentachlorophenol, petroleum ether, or other chemical substances
capable of causing a condition of intoxication, inebriation,
excitement, stupefaction, or the dulling of the brain or nervous system
as a result of the inhalation of the fumes or vapors of such chemical
substance. The statement of listing of the contents of a substance
packaged in a container by the manufacturer or producer thereof shall
be proof of the contents of such substances without further expert
testimony if it reasonably appears that the substance in such container
is the same substance placed therein by the manufacturer or producer.
(d) Abuse of psychotoxic chemical solvents, as defined in this
section, shall be punishable as a petty misdemeanor, and the court may
order any person using psychotoxic chemical solvents for inhalation to
be committed to a facility for treatment for a term not to exceed six
months.
(e) Such psychotoxic chemical solvents kept or used in violation of
this section are hereby declared to be contraband and upon proof of a
violation, following public notice and an opportunity for any person
claiming an interest therein to be heard, shall be forfeited to the
government by order of the court.
Sec. 11.452 Dangerous drug offense.
(a) It shall be unlawful, except as authorized and controlled by
Federal law, to manufacture, distribute, possess with intent to
distribute, dispense, create, possess, or cultivate a controlled or a
counterfeit substance; or to obtain or acquire possession of a
controlled substance by misrepresentation, fraud, forgery, deception,
or subterfuge; or to knowingly or intentionally use any communication
facility in committing any of the above prohibited acts.
(b) Controlled or counterfeit substances shall consist of the
substances listed in 21 U.S.C. 812, and any other chemical substance,
natural or artificial, defined as a controlled or dangerous substance,
the possession, sale, distribution, or use of which is prohibited by
Federal law.
(c) Each of the unlawful acts listed in paragraph (a) of this
section shall be punishable as a misdemeanor. Upon conviction under
this section for sales distribution, possession with the intent to
distribute, manufacture with intent to sell, or cultivation with intent
to distribute, banishment may also be imposed for a term not to exceed
ten years.
(d) Any substance handled in violation of this section is deemed
and declared to be contraband and upon proof of such a violation, after
public notice and an opportunity for any person claiming an interest in
the substance to be heard, shall be forfeited to the government by
order of the court.
(e) Any personal property used to transport, conceal, manufacture,
cultivate, or distribute the controlled dangerous substance in
violation of this section shall be subject to forfeiture to the
government by order of the court upon proof of such use, following
public notice and opportunity for any person claiming an interest in
the property to be heard.
Sec. 11.453 Prostitution.
A person who commits prostitution or pandering or who knowingly
keeps, maintains, rents or leases, any house, room, tent, or other
place for the purpose of prostitution is guilty of a misdemeanor.
Sec. 11.454 Child abuse and neglect.
(a) A person commits a misdemeanor if he or she inflicts abuse or
neglect on a child. Child abuse or neglect includes:
(1) Any case in which a child exhibits evidence of skin bruising,
bleeding, malnutrition, burns, fracture of any bone, subdural hematoma,
soft tissue swelling, or is dead and such condition or death is not
justifiably explained, or where the history given concerning such
condition or death or circumstances indicate that such condition or
death may not be the product of an accidental occurrence;
(2) Any case in which a child is subjected to sexual assault or
molestation, sexual exploitation, or prostitution;
(3) Any case in which circumstances indicate that a child's health
or welfare is harmed or threatened by negligent treatment or
maltreatment by a person; and/or,
[[Page 35162]]
(4) Any case in which a child is in need of services because of the
failure of the child's parent(s), legal guardian(s), or custodian(s) to
provide adequate food, clothing, shelter, medical care, or supervision
that a prudent parent would take.
(b) For purposes of this section, ``child'' means any individual
who is not married and has not attained 18 years of age.
Sec. 11.455 Persons required to report child abuse and neglect.
(a) Any person having reasonable cause to know or suspect that a
child was abused or neglected in Indian country shall report the
incident. Any person shall also report any actions which would
reasonably result in abuse or neglect.
(b) Any person who fails to report an instance of child abuse or
neglect in Indian country of which he or she has knowledge or of which
he or she should reasonably have knowledge is guilty of a misdemeanor.
Any person who inhibits the making of a report is guilty of a
misdemeanor.
(c) Any person making a report in good faith shall be immune from
criminal and civil liability.
11. A new Subpart L is added to read as follows:
Subpart L--Child Protection and Family Violence Procedures
Sec.
11.1200 Child protection procedures.
11.1201 Family violence procedures.
Subpart L--Child Protection and Family Violence Procedures
Sec. 11.1200 Child protection procedures.
As required by the Indian Child Protection and Family Violence
Prevention Act, 25 U.S.C. 3203, the following child protection
procedures are established.
(a) Reporting child abuse and neglect. Oral reports of child abuse
and neglect in Indian country must be made immediately to the local
child protective services or local law enforcement.
(b) Federal Bureau of Investigation. If the report involves an
Indian child or the person alleged to have abused or neglected the
child is an Indian and the preliminary inquiry indicates a criminal
violation has occurred, the local law enforcement agency (if other than
the Federal Bureau of Investigation) must immediately report the
incident to the Federal Bureau of Investigation.
(c) Child protection report. Within 36 hours, a written report must
be prepared by the receiving agency. The report must include:
(1) The name, address, age, and sex of the child that is the
subject of the report;
(2) The grade and the school in which the child is currently
enrolled;
(3) The name and address of the child's parents or other persons
responsible for the child's care;
(4) The name and address of the alleged offender;
(5) The name and address of the person who made the report to the
agency;
(6) A brief narrative as to the nature and extent of the child's
injuries, including any previously known or suspected abuse of the
child or the child's siblings and the suspected date of the abuse; and,
(7) Any other information the agency or the person who made the
report to the agency believes to be important to the investigation and
disposition of the alleged abuse.
(d) Investigation. Any local law enforcement agency or local child
protective services agency that receives a report alleging abuse or
neglect described in Sec. 11.454 must immediately initiate an
investigation of such allegation and take appropriate steps to secure
the safety and well-being of the child or children involved.
(e) Investigative report. Upon completion of the investigation of
any report of alleged abuse that is made to a local law enforcement
agency or local child protective services agency, such agency must
prepare a final written report on such allegation.
(f) Confidentiality. The identity of any person making a report
under this section must not be disclosed, without the consent of the
individual, to any person other than a court of competent jurisdiction
or an employee of the Indian tribe, state or Federal Government who
needs to know the information in the performance of the employee's
duties.
(g) Complaint. A complaint must be filed by a law enforcement
officer.
Sec. 11.1201 Family violence procedures.
(a) Warrantless arrest. A law enforcement officer shall arrest a
person and take that person into custody without a warrant when the
officer has probable cause to believe that the person has committed a
family violence act such as intentional or negligent infliction of
bodily injury; unreasonable confinement; intimidation; cruel punishment
resulting in physical harm, pain or mental anguish; any sexual contact
intended to sexually gratify the person making the contact and which is
without consent or obtained by intimidation or fraud; intentional
infliction of threats, humiliation or intimidation; unauthorized or
improper use of funds, property or other resources; or criminal
trespass upon a spouse, former spouse, family member, present or former
household member, or co-parent.
(b) Definition of co-parent. For purposes of this subpart ``co-
parent'' means persons who have a child in common regardless of whether
they have been married or have lived together at any time. For purposes
of this subpart ``family member'' includes grandparents, aunts, uncles
and cousins who are present or former household members.
(c) Liability. No law enforcement officer shall be held criminally
or civilly liable for making an arrest pursuant to this subpart,
provided he or she acts reasonably and in good faith.
(d) Petition for order of protection. A victim of a family violence
act may petition the court under this subpart for an order of
protection.
(1) The petition shall be made under oath or shall be accompanied
by a sworn affidavit setting out specific facts describing the act of
family violence.
(2) No petitioner is required to file for annulment, separation, or
divorce as a prerequisite to obtaining an order of protection. However,
the petition shall state whether any other family action is pending
between the petitioner and the respondent.
(3) Standard simplified petition forms with instructions for
completion shall be available to petitioners not represented by
counsel. Law enforcement agencies shall keep such forms and make them
available upon request to victims of family violence.
(e) Emergency order of protection. Upon the filing of a petition
for order of protection:
(1) The court may immediately grant an ex parte emergency order of
protection if there is clear and convincing evidence from the specific
facts shown by the affidavit or by the petition that a family violence
act has occurred;
(2) The court shall cause the emergency order of protection
together with notice of hearing to be served immediately on the person
alleged to have committed a family violence act; and,
(3) The court shall hold a hearing on the question of continuing
the order within ten days of granting the emergency order of
protection; or
(4) If an ex parte order is not granted, the court shall serve
notice to appear upon both parties and hold a hearing on the petition
for order of protection within seventy-two hours after the filing of
the petition; if notice of hearing
[[Page 35163]]
cannot be served within seventy-two hours, a temporary order of
protection may be issued;
(5) If notice of hearing cannot be served within 10 days, the
temporary order of protection shall be automatically extended for ten
days; and,
(6) If after the 10-day extension notice to appear cannot be
served, the temporary order of protection shall expire.
(f) Order of protection. Following a hearing and finding that a
family violence act occurred, the court may enter an order of
protection that specifically describes in clear language,
understandable to the person who committed the family violence act, the
behavior the court has ordered he or she do or refrain from doing. In
any order of protection, the court:
(1) May order the person who committed the family violence act to
refrain from acts or threats of violence against the petitioner or any
other household member.
(2) May order that the person who committed the family violence act
be removed from the home of the petitioner;
(3) May grant sole possession of the residence or household to the
petitioner during the period the order of protection is effective, or
order the person who has committed a family violence act to provide
temporary suitable alternative housing for the petitioner and other
household members to whom the respondent owes a legal obligation of
support;
(4) May award temporary custody of any children involved when
appropriate and provide for visitation rights, child support, and
temporary support for the petitioner on a basis which gives primary
consideration to the safety of the petitioner and other household
members;
(5) May order that the person who committed a family violence act
not initiate contact with the petitioner;
(6) May restrain the parties from transferring, concealing,
encumbering, or otherwise disposing of one another's property or the
joint property of the parties except in the usual course of business or
for the necessities of life; and to account to the court for all such
transferring, encumbrances, and expenditures made after the order is
served or communicated;
(7) May order other injunctive relief as the court deems necessary
for the protection of the petitioner including orders to law
enforcement agencies as provided by this subpart;
(8) Shall give notice that violation of any provision of the order
of protection constitutes contempt of court and may result in a fine or
imprisonment, or both;
(9) Shall indicate whether the order of protection supersedes or
alters prior orders pertaining to family matters between the parties;
(10) Shall not affect the title to any property or allow the
petitioner to transfer, conceal, encumber, or otherwise dispose of
respondent's property or the joint property of the parties.
(g) Review hearing. Either party may request a review hearing to
amend or vacate the order of protection.
(h) Service of the protection order. An order of protection granted
under this subpart shall be filed with the clerk of the court and a
copy shall be sent by the clerk of the court to the law enforcement
agency with the jurisdiction over the areas of Indian Country in which
the court is located. The order shall be personally served upon the
respondent, unless the respondent or his or her attorney was present at
the time the order was issued. If the court finds the petitioner unable
to pay court costs, the order shall be served without cost to the
petitioner.
(i) Duration of order of protection. An order of protection granted
by the court shall be effective for a fixed period of time not to
exceed three months. The order may be extended for good cause upon
motion of the petitioner for an additional period of time not to exceed
three months.
(j) Contempt of court. Any willful disobedience or interference
with any court order constitutes contempt of court which may result in
a fine or imprisonment, or both in accordance with this part.
(k) Remedies. The remedies provided in this subpart are in addition
to the other civil or criminal remedies available to the petitioner.
(l) Emergency assistance. The court shall require the local law
enforcement agency to give notice of the availability of emergency
assistance. Notice shall include telling all victims of family violence
where a shelter or other services are available in the community and
giving all victims immediate notice of their legal rights and remedies.
The notice must also include furnishing all victims of family violence
a copy of the following statement:
IF YOU ARE A VICTIM OF FAMILY VIOLENCE, you can ask the
prosecutor to file a criminal complaint. You also have the right to
go to court and file a petition requesting an order of protection
from family violence. The order may include the following:
(1) an order restraining the person who has committed a family
violence act from further acts of family violence;
(2) an order directing the person who has committed a family
violence act to leave your household;
(3) an order preventing the person who has committed a family
violence act from entering your residence, school, business, or
place of employment;
(4) an order awarding you custody of or the other parent
visitation with a minor child or children;
(5) an order directing the person who has committed a family
violence act to pay support to you and the minor children if the
person who has committed an act of family violence has a legal
obligation to do so;
(6) an order directing the person who has committed a family
violence act to account for your funds or property or to pay
restitution for damages resulting from the wrongdoing;
(7) an order directing the appropriate human services agency to
deliver protective services and provide the least restrictive
alternatives for services, care, treatment, or placement.
Dated: June 6, 1996.
Ada E. Deer,
Assistant Secretary--Indian Affairs.
[FR Doc. 96-16039 Filed 7-3-96; 8:45 am]
BILLING CODE 4310-02-P
