[Federal Register: December 19, 2007 (Volume 72, Number 243)]
[Proposed Rules]
[Page 71835-71841]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19de07-36]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 11
RIN 1076-AE67
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 proposes to amend its regulations
governing the Courts of Indian Offenses (otherwise known as CFR
Courts). This amendment will clarify the authority of the Assistant
Secretary--Indian Affairs to establish the courts, the jurisdiction of
the courts, its 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 January 18, 2008.
ADDRESSES: You may submit comments, identified by the number 1076-AE67,
by any of the following methods:
Federal rulemaking portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: Joseph Little, Office of Justice Services, Bureau of
Indian Affairs, 1001 Indian School Road, NW.; Albuquerque, NM 87104.
FOR FURTHER INFORMATION CONTACT: Joseph Little (505) 563-3833.
SUPPLEMENTARY INFORMATION: The authority to issue this amendment is
[[Page 71836]]
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.'' 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.
Background
This proposed amendment:
(1) Provides for the establishment of courts when tribal justice
systems do not exist;
(2) Updates the listing of Indian reservations to which the Code
applies;
(3) Clarifies the provision on jurisdictional limitations, which
excludes from jurisdiction under this part Federal or state 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.
Tribal courts may impose maximum fines up to $5,000 and sentences of
imprisonment up to one year.
Section 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) (CFR 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) (CFR 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.'') A clarifying sentence has been added to the jurisdictional
limitations section to express unambiguously that Federal or 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 a
dangerous drug offense. They are also proposed to enhance the ability
of law enforcement agencies on Indian reservations to prevent and
penalize the possession, use and/or distribution of illegal controlled
substances.
Prostitution was inadvertently omitted from a prior 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
solicitation which is intended to facilitate the prosecution of persons
soliciting for prostitutes.
Child abuse and neglect has been added as a separate criminal
offense. 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 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 warrant-less arrest provisions and many have special
protective orders. This subpart is drawn from those statutes.
The proposed amendment 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. 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.
These amendments affect a very small segment of the population and
a well-defined group within the Indian community. Because consultation
has taken place with this identified group and by being substantively
involved in the development of these amendments, the Bureau of Indian
Affairs is publishing this rule with a 30-day comment period. Further,
a 30-day comment period is necessary because these amendments must be
published and become effective as soon as possible to address the
chronic abuse of controlled substances in Indian country, in particular
methamphetamine.
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 an average 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.
(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 Court of Indian Offenses will not affect any
program rights of any Indian tribe. Its primary function will be to
administer justice for misdemeanor offenses within Indian country. The
court's criminal jurisdiction will be limited to criminal offenses
provided in 25 CFR part 11 and the Law and Order Code of Indian tribes
as applicable.
(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
(e) 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
[[Page 71837]]
States v. Clapox, 35 F. 575 (D. Ore. 1888).
Regulatory Flexibility Act
The Department of the Interior, 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 11.100(a)
updates the list of Court of Indian Offenses with limited criminal
jurisdiction over Indians within a limited geographical area of Indian
country. 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 an average Court of Indian Offenses is
estimated to cost less than $200,000 per court to operate annually. The
cost associated with the operation of these courts will be with the
Bureau of Indian Affairs.
(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 primarily
for the administration of misdemeanor justice for Indians located
within the boundaries of Indian country 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. These
are courts established primarily for the administration of misdemeanor
justice for Indians located within the boundaries of Indian country,
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 a 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
boundaries of Indian country. Its jurisdiction will be limited to
criminal offenses provided in 25 CFR part 11.
(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 implication. A takings implication assessment is
not required. The amendments to 25 CFR part 11 will establish Courts of
Indian Offenses with limited criminal jurisdiction over Indians within
a limited geographical area of Indian country.
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.
Consultation With Indian Tribes (Executive Order 13175)
Under the criteria in Executive Order 13175, we have evaluated this
rule and determined that it has no potential effects on federally
recognized Indian tribes. The amendment to 25 CFR part 11 does not
automatically apply to all of the 561 federally recognized tribes,
except when it is determined that the administration of justice has
failed on an Indian reservation and that the establishment of the
provisional Court of Indian Offenses is necessary until that tribe
establishes a tribal court to provide for a law and order code and
judicial system to deal with law and order within the exterior
boundaries of its Indian reservation. The Department of the Interior
establishes a provisional court, to fulfill its trust responsibility
towards tribal governments and complies with the unique government-to-
government relationship that exists between the Federal Government and
Indian tribes.
Paperwork Reduction Act
This amendment to the regulation does not require information
collection under the Paperwork Reduction Act.
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 a Court of Indian Offenses
conveys personal jurisdiction over the criminal misdemeanor actions of
Indians with the exterior boundaries of Indian country.
Data Quality Act
In developing this rule, we did not conduct or use a study,
experiment, or survey requiring peer review under the Data Quality Act
(Pub. L. 106-544).
Effects on the Energy Supply (Executive Order 13211)
This rule does not have a significant effect on the nation's energy
supply, distribution, or use as defined by Executive Order 13211.
Clarity of This Regulation
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
[[Page 71838]]
language. This means that each rule we publish must:
Be logically organized;
Use the active voice to address readers directly;
Use clear language rather than jargon;
Be divided into short sections and sentences; and
Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments as instructed in the ADDRESSES section. To better help us
revise the rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the specific sections that
are unclearly written, which sections or sentences are too long, the
sections where you feel lists or tables would be useful, etc.
Public Availability of Comments
Before including your address, phone number, e-mail address, or
other personal identifying information in your comment, you should be
aware that your entire comment--including your personal identifying
information--may be made publicly available at any time. While you can
ask us in your comment to withhold your personal identifying
information from public view, we cannot guarantee that we will be able
to do so.
List of Subjects in 25 CFR Part 11
Courts, Indians--law, Law enforcement, Penalties.
Dated: August 29, 2007.
Carl J. Artman,
Assistant Secretary--Indian Affairs.
Editorial Note: The Office of the Federal Register received this
document on December 7, 2007.
For the reasons set out in the preamble, the Bureau of Indian
Affairs proposes to amend Part 11 of Chapter I of Title 25 of the Code
of Federal Regulations 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.
2. Revise Subpart A to read as follows:
Subpart A--Application; Jurisdiction
Sec.
11.100 Where are Courts of Indian Offenses established?
11.102 What is the purpose of this part?
11.104 When does this part apply?
11.106 Who is an Indian for purposes of this part?
11.108 How are tribal ordinances affected by this part?
11.110 How are tribal customs affected by this part?
11.112 Reserved.
11.114 What is the criminal jurisdiction of the Court of Indian
Offenses?
11.116 What is the civil jurisdiction of a Court of Indian Offenses?
11.118 What are the jurisdictional limitations of the Court of
Indian Offenses?
Sec. 11.100 Where are Courts of Indian Offenses established?
(a) Unless indicated otherwise in this title, these Courts of
Indian Offenses are established and the regulations in this part apply
to the Indian country (as defined in 18 U.S.C. 1151 and by Federal
court precedent) occupied by the following tribes:
(1) Te-Moak Band of Western Shoshone Indians (Nevada);
(2) Ute Mountain Ute Tribe (Colorado);
(3) Tribes located in the former Oklahoma Territory (Oklahoma) that
are listed in paragraph (b) of this section;
(4) Tribes located in the former Indian Territory (Oklahoma) that
are listed in paragraph (c) of this section;
(5) Winnemucca Indian Tribe; and
(6) Santa Fe Indian School Property, including the Santa Fe Indian
Health Hospital, and the Albuquerque Indian School Property (land held
in trust for the 19 Pueblos of New Mexico).
(b) This part applies to the following tribes located in the former
Oklahoma Territory (Oklahoma):
(1) Apache Tribe of Oklahoma;
(2) Caddo Nation of Oklahoma;
(3) Comanche Nation;
(4) Delaware Nation;
(5) Fort Sill Apache Tribe of Oklahoma;
(6) Kiowa Tribe of Oklahoma;
(7) Otoe-Missouria Tribe of Oklahoma; and
(8) Wichita and Affiliated Tribes of Oklahoma.
(c) This part applies to the following tribes located in the former
Indian Territory (Oklahoma):
(1) Choctaw Nation;
(2) Seminole Nation;
(3) Eastern Shawnee Tribe;
(4) Miami Tribe;
(5) Modoc Tribe;
(6) Ottawa Tribe;
(7) Peoria Tribe;
(8) Quapaw Tribe; and
(9) Wyandotte Nation.
Sec. 11.102 What is the purpose of this part?
It is the purpose of the regulations in this part 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.
Sec. 11.104 When does this part apply?
(a) The regulations in this part continue to apply to each tribe
listed in Sec. 11.100(a) until either:
(1) BIA and the tribe enter into a contract or compact for the
tribe to provide judicial services; or
(2) The tribe has put into effect a law and order code meeting the
requirements of paragraph (b) of this section that establishes a court
system.
(b) When a tribe adopts a legal code and establishes a judicial
system, the tribe must notify the Assistant Secretary--Indian Affairs
or his or her designee.
(1) The law and order code must be adopted by the tribe in
accordance with its constitution and by-laws or other governing
documents.
(2) The effective date for the code's implementation is contingent
upon publication in the Federal Register of the amendment to Sec.
11.100(a) that provides public notice of the change and removes the
tribe from the list in paragraph (a) of this section.
Sec. 11.106 Who is an Indian for purposes of this part?
For the purposes of the enforcement of the regulations in this
part, an Indian is defined as a person who is a member of an Indian
tribe which is recognized by the Federal Government as eligible for
services for the BIA, and any other individual who is an ``Indian'' for
the purposes of 18 U.S.C. 1152-1153.
Sec. 11.108 How are tribal ordinances affected by this part?
The governing body of each tribe occupying the Indian country over
which a Court of Indian Offenses has jurisdiction may enact ordinances
which, when approved by the Assistant Secretary--Indian Affairs or his
or her designee, shall be enforceable in the Court of Indian Offenses
having jurisdiction over the Indian country occupied by that tribe, and
shall supersede any conflicting regulation in this part.
Sec. 11.110 How are tribal customs affected by this part?
Each Court of Indian Offenses shall apply the customs of the tribe
occupying the Indian country over which it has jurisdiction to the
extent that they are consistent with the regulations of this part.
[[Page 71839]]
Sec. 11.112 Reserved.
Sec. 11.114 What is the criminal jurisdiction of the Court of Indian
Offenses?
(a) Except as otherwise provided in this title, each Court of
Indian Offenses shall have jurisdiction over any action by an Indian
(hereafter referred to as person) that is made a criminal offense under
this part and that occurred within the Indian country subject to the
court's jurisdiction.
(b) No person shall be prosecuted, tried or punished for any
offense unless the complaint is filed within five years after such
offense shall have been committed.
Sec. 11.116 What is the civil jurisdiction of a Court of Indian
Offenses?
(a) Except as otherwise provided in this title, each Court of
Indian Offenses has jurisdiction over any civil action arising within
the territorial jurisdiction of the court in which:
(1) The claimant is an Indian; or
(2) Claims between Indian claimant or counter-claimants and non-
Indian defendants or counter-defendants are brought before the court by
stipulation of the parties.
(b) Any civil action commenced in a Court of Indian Offenses shall
be barred unless the complaint is filed within three years after the
right of action first accrues.
Sec. 11.118 What are the jurisdictional limitations of the Court of
Indian Offenses?
(a) A Court of Indian Offenses may exercise over a Federal or State
official only the same jurisdiction that it could exercise if it were a
tribal court. The jurisdiction of Courts of Indian Offenses does not
extend to Federal or State employees acting within the scope of their
employment.
(b) A Court of Indian Offenses may not adjudicate an election
dispute, take jurisdiction over a suit against a tribe, or adjudicate
any internal tribal government dispute, unless the relevant tribal
governing body passes a resolution, ordinance, or referendum granting
the court jurisdiction.
(c) In deciding who is a tribal official, BIA will give deference
to 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.
(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
3. In Sec. 11.200, revise the section heading and paragraph (c) to
read as follows:
Sec. 11.200 What is the composition of the Court of Indian Offenses?
* * * * *
(c) Appeals must be heard by a panel of magistrates who were not
involved at the tribal/trial level.
* * * * *
4. In Sec. 11.201, revise the section heading and paragraph (a) to
read as follows:
Sec. 11.201 How are magistrates for the Court of Indian Offenses
appointed?
(a) The Assistant Secretary--Indian Affairs or his or her designee
will appoint each magistrate after consultation with the tribe or
tribes as required.
* * * * *
5. In Sec. 11.202, revise the section heading to read as follows:
Sec. 11.202 How is a magistrate of the Court of Indian Offenses
removed?
* * * * *
6. In Sec. 11.203, revise the section heading to read as follows:
Sec. 11.203 How are the clerks of the Court of Indian Offenses
appointed and what are their duties?
* * * * *
7. In Sec. 11.205, revise the section heading to read as follows:
Sec. 11.205 Are there standards for the appearance of attorneys and
lay counselors?
* * * * *
8. In Sec. 11.206, revise the section heading to read as follows:
Sec. 11.206 Is the Court of Indian Offenses a court of record?
* * * * *
9. In Sec. 11.207, revise the section heading to read as follows:
Sec. 11.207 What are the responsibilities of Bureau of Indian Affairs
employees?
* * * * *
10. In Sec. 11.208, revise the section heading to read as follows:
Sec. 11.208 May Individual Indian Money accounts be used for payment
of judgments?
* * * * *
11. In Sec. 11.209, revise the section heading to read as follows:
Sec. 11.209 How does the Court of Indian Offenses dispose of fines?
* * * * *
Subpart C--Criminal Procedure
12. In Sec. 11.314, redesignate paragraphs (c) through (e) as
paragraphs (d) through (f), revise paragraphs (a) and (b), and add a
new paragraph (c), to read as follows:
Sec. 11.314 Jury trials.
(a) A defendant has a right, upon demand, to a jury trial in any
criminal case:
(1) That is punishable by a maximum sentence of one year
incarceration; or
(2) In which the prosecutor informs the court before the case comes
to trial that a jail sentence will be sought.
(b) If the prosecutor informs the court that no sentence of
incarceration will be sought, the court may not impose a sentence of
incarceration for the offense.
(c) A jury must consist of 12 residents of the vicinity in which
trial is held, selected from a list of eligible jurors prepared each
year by the court.
(1) An eligible juror must:
(i) Be at least 18 years of age;
(ii) Not have been convicted of a felony; and
(iii) Be otherwise qualified according to standards established by
the Court of Indian Offenses under its general rulemaking authority.
(2) Any party may challenge without cause a maximum of three
members of the jury panel chosen under this section.
* * * * *
13. In Sec. 11.315, revise 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 up to the maximum permitted by the
section defining the offense, but in no case for longer than one year;
and
(2) A fine in an amount up to the maximum permitted by the section
defining the offense, but in no case greater than $5,000.
* * * * *
Subpart D--Criminal Offenses
14. Revise Sec. 11.450 to read as follows:
Sec. 11.450 Maximum fines and sentences of imprisonment.
A person convicted of an offense under the regulations in this part
may be sentenced as follows:
[[Page 71840]]
------------------------------------------------------------------------
Type of offense Maximum allowable sentence
------------------------------------------------------------------------
(a) Misdemeanor.......................... Up to1 year in prison, or a
fine of up to $5,000, or
both.
(b) Petty misdemeanor.................... Up to 6 months in prison, or
a fine of up to $2,500, or
both.
(c) Violation............................ Up to 3 months in prison, or
a fine of up to $1,000, or
both.
------------------------------------------------------------------------
15. Add new Sec. Sec. 11.451 through 11.454 to read as follows:
Sec. 11.451 Abuse of psychotoxic chemical solvents.
(a) It is unlawful to:
(1) Intentionally smell or inhale the fumes of any psychotoxic
chemical solvent or possess, purchase, or attempt to possess or
purchase any psychotoxic chemical solvent, for the purpose of causing
intoxication, inebriation, excitement, stupefaction, or the dulling of
the brain or nervous system; or
(2) 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 person intends to
use the solvent in violation of this section.
(b) This section does not apply to inhalation of anesthesia for
medical or dental purposes.
(c) As used in this section, ``psychotoxic chemical solvent'' means
any glue, gasoline, paint, hair spray, Lysol, or other substance
containing one or more of the following chemical compounds:
(1) Acetone and acetate;
(2) Benzene;
(3) Butyl-alcohol;
(4) Methyl ethyl;
(6) Peptone;
(7) Pentachlorophenol;
(8) Petroleum ether; or
(9) Any other chemical substance the inhalation of whose fumes or
vapors can cause intoxication, inebriation, excitement, stupefaction,
or the dulling of the brain or nervous system.
(d) The statement listing the contents of a substance packaged in a
container by the manufacturer or producer thereof is rebuttable proof
of the contents of the substance without further expert testimony if it
reasonably appears that the substance in the container is the same
substance placed therein by the manufacturer or producer.
(e) Abuse of psychotoxic chemical solvents, as defined in this
section, is punishable as a petty misdemeanor, and the court may order
any person using psychotoxic chemical solvents as described in
paragraph (a) of this section to be committed to a facility for
treatment for up to 6 months.
(f) Psychotoxic chemical solvents kept or used in violation of this
section are declared contraband and upon proof of a violation must be
forfeited to the Federal government by order of the court, following
public notice and an opportunity for any person claiming an interest
therein to be heard.
Sec. 11.452 Possession of a Controlled Substance.
(a) It is unlawful for a person to knowingly or intentionally
possess any controlled substance listed in 21 CFR Part 1308, as
amended, unless:
(1) The Controlled Substances Act or Drug Enforcement Agency
regulations specifically authorizes possession of the substance;
(2) The substance or preparation is excluded or exempted by 21 CFR
1308.21 through 1308.35, as amended; or
(3) The provisions of 42 U.S.C. 1996a (regarding traditional Indian
religious use of peyote) apply.
(b) Violations of paragraph (a) of this section are punishable as a
misdemeanor.
(c) Any controlled substance involved in violation of this section
is declared to be contraband. Upon proof of a violation of this
section, the controlled substance must be forfeited to the Federal
Government by order of the court, after public notice and an
opportunity for any person claiming an interest in the substance to be
heard.
(d) Any personal property used to transport, conceal, manufacture,
cultivate, or distribute the controlled substance in violation of this
section is subject to forfeiture to the Federal 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 or Solicitation.
A person who commits prostitution or solicitation 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 Domestic violence.
(a) A person who commits domestic violence by inflicting physical
harm, bodily injury, or sexual assault, or inflicting the fear of
imminent physical harm, bodily injury, or sexual assault on a family
member is guilty of a misdemeanor.
(b) For purposes of this section, a family member is any of the
following:
(1) A spouse;
(2) A former spouse;
(3) A person related by blood;
(4) A person related by existing or prior marriage;
(5) A person who resides or resided with the defendant; or
(6) A person with whom the defendant has a child in common.
16. Revise Sec. 11.500 to read as follows.
Sec. 11.500 Law applicable to civil actions.
(a) In all civil cases, the Magistrate of a Court of Indian
Offenses shall have discretion to apply:
(1) Any laws of the United States that may be applicable;
(2) Any authorized regulations contained in the Code of Federal
Regulations; and
(3) Any laws or customs of the tribe occupying the area of Indian
country over which the court has jurisdiction that are not prohibited
by Federal laws.
This delineation does not establish a hierarchy relative to the
applicability of specific law in specific cases.
(b) Where any doubt arises as to the customs of the tribe, the
court may request the advice of counselors familiar with those customs.
(c) Any matters that are not covered by the laws or customs of the
tribe, or by applicable Federal laws and regulations, may be decided by
the Court of Indian Offenses according to the laws of the State in
which the matter in dispute lies.
17. Add a new Subpart L to read as follows:
Subpart L--Child Protection and Domestic Violence Procedures
Sec.
11.1200 Definitions.
11.1202 How to petition for an order of protection.
11.1204 Obtaining an emergency order of protection.
11.1206 Obtaining a regular (non-emergency) order of protection.
11.1208 Service of the protection order.
11.1210 Duration and renewal of a regular protection order.
11.1212 Consequences of disobedience or interference.
11.1214 Relationship of this part to other remedies.
Sec. 11.1200 Definitions.
Domestic violence means to inflict physical harm, bodily injury, or
sexual assault, or the fear of imminent physical harm, bodily injury,
or sexual assault on a family member.
Family member means any of the following:
(1) A spouse;
(2) A former spouse;
(3) A person related by blood;
[[Page 71841]]
(4) A person related by existing or prior marriage;
(5) A person who resides or resided with the defendant; or
(6) A person with whom the defendant has a child in common.
Parent means persons who have a child in common, regardless of
whether they have been married or have lived together at any time.
Sec. 11.1202 How to petition for an order of protection.
A victim of a domestic violence, or the parent, guardian of a
victim, or a concerned adult may petition the court under this subpart
for an order of protection.
(a) The petition must be made under oath or accompanied by a sworn
affidavit setting out specific facts describing the act of domestic
violence.
(b) The petitioner is not required to file for annulment,
separation, or divorce in order to obtain an order of protection.
However, the petition should state whether any legal action is pending
between the petitioner and the respondent.
(c) The Court may develop simplified petition forms with
instructions for completion and make them available to petitioners not
represented by counsel. Law enforcement agencies may keep the forms on
hand and make them available upon request to victims of domestic
violence.
Sec. 11.1204 Obtaining an emergency order of protection.
(a) When a victim files a petition for an order of protection under
Sec. 11.202(a), the court may immediately grant an ex parte emergency
order of protection if the petition clearly shows that an act of
domestic violence has occurred. The order must meet the content
requirements of Sec. 11.206 (a) and (b).
(b) If the court does not immediately grant an emergency order of
protection under paragraph (a) of this section, the court must either:
(1) Within 72 hours after the victim files a petition, serve notice
to appear upon both parties and hold a hearing on the petition for
order of protection; or
(2) If a notice of hearing cannot be served within 72 hours, issue
an emergency order of protection.
(c) If the court issues an ex parte emergency order of protection
under paragraph (a) of this section, it must within 10 days hold a
hearing on the question of continuing the order. If notice of hearing
cannot be served within 10 days:
(1) The emergency order of protection is automatically extended for
10 days; and
(2) If after the 10-day extension, notice to appear cannot be
served, the emergency order of protection expires.
(d) If the court issues an ex parte emergency order of protection
under paragraph (b)(2) of this section, it must cause the order to be
served on the person alleged to have committed a family violence act
and seek to hold a hearing as soon as possible. If a hearing cannot be
held within 10 days, the petitioner may ask the court to renew the
emergency protection order.
Sec. 11.1206 Obtaining a regular (non-emergency) order of protection.
Following a hearing and finding that an act of domestic violence
occurred, the court may issue an order of protection. The order must
meet the requirements of paragraph (a) of this section and may meet the
requirements of paragraph (b) of this section. Either party may request
a review hearing to amend or vacate the order of protection.
(a) The order of protection must do all of the following:
(1) Specifically describe in clear language the behavior the court
has ordered he or she do or refrain from doing;
(2) 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; and
(3) Indicate whether the order of protection supersedes or alters
prior orders pertaining to matters between the parties.
(b) The order of protection may do any of the following:
(1) Order the person who committed the act of domestic violence to
refrain from acts or threats of violence against the petitioner or any
other family member;
(2) Order that the person who committed the act of domestic
violence be removed from the home of the petitioner;
(3) 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 an act of domestic violence to
provide temporary suitable alternative housing for the petitioner and
other family members to whom the respondent owes a legal obligation of
support;
(4) 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) Order that the person who is found to have committed an act of
domestic violence to not initiate contact with the petitioner;
(6) 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; and
(7) 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.
Sec. 11.1208 Service of the protection order.
When an order of protection is granted under this subpart:
(a) The petitioner must file it with the clerk of the court and a
copy will be sent by the clerk of the court to a law enforcement agency
with jurisdiction over the area in which the court is located.
(b) The order must be personally served upon the respondent, unless
the respondent or his or her attorney was present at the time the order
was issued.
(c) If the court finds the petitioner unable to pay court costs,
the order will be served without cost to the petitioner.
Sec. 11.1210 Duration and renewal of a regular protection order.
An order of protection granted by the court:
(a) Is effective for a fixed period of time, which is up to a
maximum of 6 months; and
(b) May be extended for good cause upon motion of the petitioner
for an additional period of up to 6 months each time a petition is
presented. A petitioner may request as many extensions as necessary
provided that the court determines that good cause exists.
Sec. 11.1212 Consequences of disobedience or interference.
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.
Sec. 11.1214 Relationship of this subpart to other remedies.
The remedies provided in this subpart are in addition to the other
civil or criminal remedies available to the petitioner.
[FR Doc. E7-24043 Filed 12-18-07; 8:45 am]
BILLING CODE 4310-4J-P
