05-6113. Law and Order on Indian Reservations

AGENCY:

Bureau of Indian Affairs, Interior.

ACTION:

Final rule and request for comments.

SUMMARY:

This document adds the Winnemucca Indian Tribe (Western Region, Nevada) to the listing of Courts of Indian Offenses. This amendment will establish a Court of Indian Offenses for a period not to exceed 2 years. It is necessary to establish a Court of Indian Offenses with jurisdiction over the Winnemucca Indian Tribe of the Winnemucca Reservation and Colony in order to protect lives and property.

DATES:

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

ADDRESSES:

You may submit comments, identified by the number 1076-AE52, by any of the following methods:

• Federal rulemaking portal: http://www.regulations.gov Follow the instructions for submitting comments.
• Fax: [phone].
• Mail: Ralph Gonzales, Office of Tribal Services, Bureau of Indian Affairs, 1951 Constitution Avenue, NW., MS 320-SIB, Washington, DC 20240.
• Hand delivery: Office of Tribal Services, Bureau of Indian Affairs, 1951 Constitution Avenue, NW., MS 320-SIB, Washington, DC 20240.

FOR FURTHER INFORMATION CONTACT:

Sharlot Johnson, Tribal Operations Officer, Western Regional Office, Bureau of Indian Affairs, 400 N. Fifth Street, Phoenix, Arizona 85004, [phone]; or Ralph Gonzales, 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 the exercise of the rulemaking authority delegated by the Secretary of the Interior to the Assistant Secretary—Indian Affairs in the Departmental Manual at 209 DM 8.1.

The territorial jurisdiction is extended to the land described in this document. The tract of land located in Nevada, within which the Winnemucca Indian Tribe is located, and more particularly described as:

(1) That 160 acres set aside by Executive Order of June 18, 1917, described as the NE1/4 of Section 32, Township 36 N., Range 38 E., M.D.M.;

(2) That 160 acres withdrawn by Executive Order of February 8, 1918, described as the SE1/4 of Section 32, Township 36 N., Range 38 E., M.D.M.; and

(3) That 20 acres acquired by the Acts of May 21, 1928 (45 Stat. 618) and May 29, 1928 (45 Stat 899) and described as N1/2, NE1/4, Section 29, Township 36 N., Range 38 E., M.D.M.

In addition, the territorial jurisdiction is extended to any lands hereafter acquired by or for the Colony. A provisional Court of Indian Offenses must be established for the Winnemucca Indian Tribe to protect the lives, persons, and property of people residing at and attending or visiting the Winnemucca Reservation and Colony, until they establish a tribal court in accordance with 25 CFR 11.100(c). This court shall function for a period not to exceed 2 years.

Judges of the Court of Indian Offenses shall be authorized to exercise all authority provided under 25 CFR part 11, including: Subpart D—Criminal Offenses; Subpart H—Appellate Proceedings; Subpart J—Juvenile Offender Procedure; issuance of arrest and search warrants pursuant to 25 CFR 11.302 and 11.305 and the Indian Law Enforcement Reform Act, 25 U.S.C. 2803(2) (1998). Officials of the Bureau of Indian Affairs have already set up a provisional Court of Indian Offenses pursuant to 25 CFR 11.100(a) for the Western Region to address this law enforcement need. This rule merely affirms the legitimacy of the establishment of this court.

This final rule will not authorize judges to exercise the following authority under 25 CFR part 11: Subpart E—Civil Actions; Subpart F—Domestic Relations; Subpart G—Probate Proceedings; Subpart I—Children's Court; and Subpart K—Minor-in-Need-of-Care Procedure.

Determination To Publish a Direct Final Rule Effective Immediately

The Bureau of Indian Affairs has determined that the public notice and comment provisions of the Administrative Procedure Act, 5 U.S.C. 553(b), do not apply because of the good cause exception under 5 U.S.C. 553(b)(3)(B), which allows the agency to suspend the notice and public procedure when the agency finds for good cause that those requirements are impractical, unnecessary and contrary to the public interest. This amendment will establish a provisional Court of Indian Offenses for the Winnemucca Indian Tribe of Winnemucca, Nevada, on land that was placed in trust for the benefit of the Winnemucca Indian Tribe. If this provisional court is not established, there is a high potential risk to public safety and a further risk of significant financial liability to the Federal Government from a lawsuit for failure to execute diligently its trust responsibility and provide adequate law enforcement on trust land. Delaying this rule to solicit public comment through the proposed rulemaking process would thus be contrary to the public interest. The Bureau of Indian Affairs Law Enforcement Services provides Law Enforcement Services to the Winnemucca Indian Tribe and an increase in visitors to the Winnemucca Reservation and Colony is imminent. For these reasons, an immediate effective date is in the public interest and in the interest of the Winnemucca Tribe. Accordingly, this amendment is issued as a final rule effective immediately.

We invite comments on any aspect of this rule and we will revise the rule if comments warrant. Send comments on this rule to the address in the ADDRESSES section.

Regulatory Planning and Review (Executive Order 12866)

In accordance with the criteria in Executive Order 12866, this rule is not a significant regulatory action. OMB makes the final determination under Executive Order 12866.

(a) This rule will not have an annual economic effect of $100 million or adversely affect an economic sector, productivity, jobs, the environment, or other units of government. A cost-benefit and economic analysis is not required. The establishment of this Court of Indian Offenses is estimated to cost less than $200,000 annually to operate. The cost associated with the operation of this court will be with the Bureau of Indian Affairs and the Winnemucca Tribe.

(b) This rule will not create inconsistencies with other agencies' actions. The Department of the Interior through the Bureau of Indian Affairs has the sole responsibility and authority to establish Courts of Indian Offenses on Indian reservations.

(c) This rule will not materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients. The establishment of this Court of Indian Offenses will not affect any program rights of the Winnemucca Indian Tribe. Its primary function will be to administer justice for misdemeanor offenses within the Winnemucca Reservation and Colony grounds. The court's jurisdiction will be limited to criminal offense provided in 25 CFR part 11 and the Law and Order Code of the Winnemucca Tribe.

(d) This rule will not raise novel legal or policy issues. The Solicitor analyzed and upheld the Department of the Interior's authority to establish Courts of Indian Offenses in a memorandum dated February 28, 1935. The Solicitor found that authority to rest principally in the statutes placing supervision of the Indians in the Secretary of the Interior, 25 U.S.C. 2 and 9, and 25 U.S.C. 13, which authorizes appropriations for “Indian judges.” The United States Supreme Court recognized the authority of the Secretary to promulgate regulations with respect to Courts of Indian Offenses in United States v. Clapox, 35 F. 575 (D. Ore. 1888).

Regulatory Flexibility Act

The Bureau of Indian Affairs certifies that this rule will not have a significant economic effect on a substantial number of small entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). An initial Regulatory Flexibility Analysis is not required.

Accordingly, a Small Entity Compliance Guide is not required. The amendment to 25 CFR part 11.100(a) will establish a Court of Indian Offenses with limited criminal jurisdiction over Indians within a limited geographical area at Winnemucca, Nevada.

Accordingly, there will be no impact on any small entities.

Small Business Regulatory Enforcement Fairness Act

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:

(a) Does not have an annual effect on the economy of $100 million or more. The establishment of this Court of Indian Offenses is estimated to cost less than $200,000 annually to operate. The cost associated with the operation of this court will be with the Bureau of Indian Affairs and the Winnemucca Tribe.

(b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. This is a court established specifically for the administration of misdemeanor justice for Indians located within the boundaries of the Winnemucca Indian Reservation and Colony and will not have any cost or price impact on any other entities in the geographical region.

(c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S. based enterprises to compete with foreign-based enterprises. This is a court established specifically for the administration of misdemeanor justice for Indians located within the boundaries of the Winnemucca Indian Reservation and Colony, Winnemucca, Nevada, and will not have an adverse impact on competition, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

Unfunded Mandates Reform Act

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.):

(a) This rule will not “significantly or uniquely” affect small governments. A Small Government Agency Plan is not required. The establishment of this Court of Indian Offenses will not have jurisdiction to affect any rights of the small governments. Its primary function will be to administer justice for misdemeanor offenses within the Winnemucca Indian Reservation and Colony grounds. Its jurisdiction will be limited to criminal offense provided in 25 CFR part 11 and the Law and Order Code of the Winnemucca Tribe.

(b) This rule will not produce a Federal mandate of $100 million or greater in any year; i.e., it is not a “significant regulatory action” under the Unfunded Mandates Reform Act.

Takings Implication Assessment (Executive Order 12630)

In accordance with Executive Order 12630, the rule does not have significant takings implications. A takings implication assessment is not required. The amendment to 25 CFR 11.100(a) will establish a Court of Indian Offenses with limited criminal jurisdiction over Indians within a limited geographical area at Winnemucca, Nevada. Accordingly, there will be no jurisdictional basis to adversely affect any property interest because the court's jurisdiction is solely personal jurisdiction over Indians.

Federalism (Executive Order 13132)

In accordance with Executive Order 13132, the rule does not have significant federalism effects. A federalism assessment is not required. The Solicitor found that authority to rest principally in the statutes placing supervision of the Indians in the Secretary of the Interior, 25 U.S.C. 2 and 9; and 25 U.S.C. 13, which authorizes appropriations for “Indian judges.” The United States Supreme Court recognized the authority of the Secretary to promulgate regulations with respect to Courts of Indian Offenses in United States v. Clapox, 35 F. 575 (D. Ore. 1888).

Civil Justice Reform (Executive Order 12988)

In accordance with Executive Order 12988, the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order. The Solicitor analyzed and upheld the Department of the Interior's authority to establish Courts of Indian Offenses in a memorandum dated February 28, 1935. The Solicitor found that authority to rest principally in the statutes placing supervision of the Indians in the Secretary of the Interior, 25 U.S.C. 2 and 9; and 25 U.S.C. 13, which authorizes appropriations for “Indian judges.” The United States Supreme Court recognized the authority of the Secretary to promulgate regulations with respect to Courts of Indian Offenses in United States v. Clapox, 35 F. 575 (D. Ore. 1888). Part 11 also requires the establishment of an appeals court; hence, the judicial system defined in Executive Order 12988 will not normally be involved in this judicial process.

Paperwork Reduction Act

This regulation does not require an information collection under the Paperwork Reduction Act. The information collection is not covered by an existing OMB approval. An OMB form 83-I have not been prepared and have not been approved by the Office of Policy Analysis. No information is being collected as a result of this court exercising its limited criminal misdemeanor jurisdiction over Indians within the exterior boundaries of the Winnemucca Indian Reservation and Colony.

National Environmental Policy Act

We have analyzed this rule in accordance with the criteria of the National Environmental Policy Act and 516 DM. This rule does not constitute a major Federal action significantly affecting the quality of the human environment. An environmental impact statement/assessment is not required. The establishment of this Court of Indian Offenses conveys personal jurisdiction over the criminal misdemeanor actions of Indians within the exterior boundaries of the Winnemucca Indian Reservation and Colony and does not have any impact of the environment.

Consultation and Coordination With Indian Tribal Governments (Executive Order 13175)

In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), Executive Order 13175, and 512 DM 2, we have evaluated potential effects on federally recognized Indian tribes and have determined that there are no potential effects. The amendment to 25 CFR part 11.100(a) does not apply to any of the 564 federally recognized tribes, except the Winnemucca Indian Tribe. The provisional Court of Indian Offenses will exist until the tribe establishes a tribal court to provide for a law and order and a judicial system to deal with law and order on the trust land at the Winnemucca Indian Reservation and Colony, but is expected not to exceed 2 years. The Department of the Interior, in establishing this provisional court, is fulfilling its trust responsibility and complying with the unique government-to-government relationship that exists between the Federal Government and Indian tribes.

List of Subjects in 25 CFR Part 11

• Courts
• Indians—law
• Law enforcement
• Penalties

For the reasons set out in the preamble, part 11 of title 25 of the Code of the Federal Regulations is amended as set forth below.

PART 11—LAW AND ORDER ON INDIAN RESERVATIONS

1. The authority citation for part 11 continues to read as follows:

Authority: R.S. 463; 25 U.S.C. 2, 38 Stat. 586; 25 U.S.C. 200, unless otherwise noted.

2. Section 11.100 is amended by adding new paragraph (a)(15) to read as follows:

§ 11.100

Listing of Courts of Indian Offenses.

(a) * * *

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

* * * * *

Dated: November 23, 2004.

David W. Anderson,

Assistant Secretary—Indian Affairs.