35158 Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Proposed Rules

these bone particle size limitations

represent good manufacturing practices

and reflect processes that are in control

and protect finished product quality.

Because bone particles are extremely

small in MSM and MSP, they would not

be considered to be a safety hazard.

Products containing bone fragments

larger than 0.8 inches (20 mm) are of

regulatory concern to FSIS, and the

Agency will consider regulatory action,

as appropriate, to protect consumers.

There are currently no regulations that

specifically address the limiting of bone

particle size for boneless meat and

poultry products deboned by hand, or

for meat produced by an advanced

mechanical method that does not

involve crushing or grinding the bones

(59 FR 62551, December 6, 1994). Safety

determinations about boneless product

produced by these methods are made on

an ad hoc basis, based on the criteria

recommended by the Board. Companies

producing boneless meat and poultry

products deboned by hand or produced

by advanced mechanical separation

generally employ manufacturing

practices that keep the size of bone

particles well below the 0.8-inch (20-

mm) level considered to be a potential

safety hazard by the Board.

FSIS’s proposed rule, ‘‘Pathogen

Reduction; Hazard Analysis and Critical

Control Point (HACCP) Systems,’’ (60

FR 6774, February 3, 1995) proposes

requiring meat and poultry processors to

establish HACCP systems of preventive

controls to ensure the safety of foods

they produce. This would include the

addressing of potential physical hazards

in meat and poultry products, such as

bone particles, in HACCP plans. The

proposed HACCP system would place

an affirmative duty on companies to

establish procedures to prevent bone

particles of foreign material from

presenting a safety hazard in boneless

meat and poultry products.

FSIS invites comments on whether

additional regulatory action is needed,

beyond that provided by FSIS in its

regulations, regarding bone particle size

and foreign material, such as glass,

metal, or plastic, in boneless meat and

poultry products deboned by hand,

produced by advanced mechanical

separation, or by other procedural

means not identified in current meat

and poultry regulations.

Done at Washington, DC, on: June 27, 1996.

Michael R. Taylor,

Acting Under Secretary for Food Safety.

[FR Doc. 96–17001 Filed 7–03–96; 8:45 am]

BILLING CODE 3410–DM–P

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.

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 § 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

§ 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
Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Proposed Rules 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:

§ 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
35160 Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Proposed Rules

(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

§ 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 § 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:

Section Old heading New heading

11.101 ............. Prospective

application

of regulations.

When are

these regulations

effective?

11.102 ............. Criminal jurisdiction;

limitation

of actions.

What is the

criminal

jurisdiction

of the

Court of

Indian Offenses?

11.103 ............. Civil jurisdiction; limitation of

actions.

What is the

civil jurisdiction of

the Court

of Indian

Offenses?

4. Section 11.104 is amended by

revising paragraphs (a) through (d) to

read as follows:

§ 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:

§ 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:

§ 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:

Section Old heading New heading

11.202 Removal of magistrates.How is a 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 appearance of attorneys and lay

counselors.

Are there standards for the

appearance of

attorneys and

lay counselors?

11.206 Court records .... Is the Court of

Indian Offenses a court

of record?

11.207 Cooperation of

Bureau of Indian Affairs

employees.

What are the responsibilities

of Bureau of

Indian Affairs

employees?
Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Proposed Rules 35161

Section Old heading New heading

11.208 Payment of judgments from individual Indian

money accounts.

May Individual

Indian Money

accounts be

used for payment of judgments?

11.209 Disposition of

fines.

How does the

Court of Indian

Offenses dispose of fines?

Subpart C—Criminal Procedure

8. Section 11.315 is amended by

revising paragraph (a) to read as follows:

§ 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:

§ 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:

§ 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.

§ 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.

§ 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.

§ 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,
35162 Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Proposed Rules

(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.

§ 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

§ 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 § 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.

§ 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
Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Proposed Rules 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

25 CFR Part 12

RIN 1076–AD56

Indian Country Law Enforcement

AGENCY: Bureau of Indian Affairs,

Interior.

ACTION: Proposed Rule.

SUMMARY: The Bureau of Indian Affairs

is proposing to establish standards for

Bureau of Indian Affairs (BIA) and tribal

law enforcement programs receiving

Federal funding or performing duties

using a cross commission. These

regulations will insure that law

enforcement, crime prevention and

recidivism reduction programs are

implemented and maintained in a

constitutionally sound manner and

comply with the Indian Law

Enforcement Reform Act of 1990, Pub.

L. 101–379 (25 U.S.C. 2801 et seq.).

DATES: Comments must be received on

or before September 3, 1996.

Comments will be available for

inspection at the address below from

9:00 a.m. to 4:00 p.m., Monday through

Friday beginning approximately July 19,

1996.

ADDRESSES: Mail comments to Theodore

R. Quasula, Director of Law

Enforcement Services, Bureau of Indian

Affairs, 1849 C Street, NW, Mail Stop

4443, Washington, D.C., 20240; OR,

hand deliver them to Room 4443 at the

above address.

FOR FURTHER INFORMATION CONTACT:

Theodore R. Quasula, Director of Law