Law and Order on Indian Reservations

DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 11

RIN 1076-AD76

Law and Order on Indian Reservations

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Proposed rule.

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SUMMARY: The Bureau of Indian Affairs is proposing to amend its

regulations governing Courts of Indian Offenses to clarify the

authority of the Assistant Secretary for Indian Affairs to establish

the courts, the jurisdiction of the courts, their relationship to

tribal governments and the Department of the Interior, and to provide

those courts with an updated code of laws.

DATES: Comments must be received on or before October 3, 1996.

ADDRESSES: Comments are to be mailed to Bettie Rushing, Office of

Tribal Services, Bureau of Indian Affairs, 1849 C Street, NW, MS 2611-

MIB, Washington, DC 20240; or, hand delivered to Room 4603 at the same

address.

FOR FURTHER INFORMATION CONTACT: Bettie Rushing, Bureau of Indian

Affairs (202) 208-3463.

SUPPLEMENTARY INFORMATION:

Background

The comments received in response to a prior proposed rule

published on October 24, 1985, and published as a final rule on October

21, 1993, included suggestions for the inclusion of new provisions in

the Law and Order Code (Code). Because the inclusion of the suggested

provisions in the final rule would have constituted new matter adopted

without opportunity for general public comment, a separate rule is now

proposed for those provisions to be added to the Code.

This proposed rule (1) provides for the establishment of courts

when tribal justice systems are not functioning, (2) changes the method

of listing Indian reservations to which the Code applies, (3) clarifies

the provision on jurisdictional limitations which excludes from

jurisdiction under this part Federal employees acting within the scope

of their employment, (4) adds provisions for drug abuse, abuse of

psychotoxic substances, child abuse, prostitution, and family violence,

and (5) increases the maximum penalties for various offenses in the

Code.

The increased penalties are proposed in response to the law

enforcement provisions of the Anti-Drug Abuse Act of 1986, amending the

sentencing limitations of the Indian Civil Rights Act, 25 U.S.C. 1302.

Indian may courts to impose maximum fines up to $5,000 and sentences of

imprisonment up to one year.

Inclusion in Sec. 11.100, Listing of Courts of Indian Offenses,

does not defeat the inherent sovereignty of a tribe to establish tribal

courts and exercise jurisdiction under tribal law. Tillett v. Lujan,

931 F.2d 636, 640 (10th Cir. 1991) (C.F.R. courts ``retain some

characteristics of an agency of the federal government'' but they

``also function as tribal courts''); Combrink v. Allen, 20 Indian L.

Rep. 6029, 6030 (Ct. Ind. App., Tonkawa, Mar. 5, 1993) (C.F.R. court is

a ``federally administered tribal court''); Ponca Tribal Election Board

v. Snake, 17 Indian L. Rep. 6085, 6088 (Ct. Ind. App., Ponca, Nov. 10,

1988) (``The Courts of Indian Offenses act as tribal courts since they

are exercising the sovereign authority of the tribe for which the court

sits.''). Such exercise of inherent sovereignty and the establishment

of tribal courts shall comply with the requirements set forth in 25 CFR

Sec. 11.100(c).

A clarifying sentence has been added to the jurisdictional

limitations section to express unambiguously that Federal and state

employees acting within the scope of their employment are not subject

to the jurisdiction of Courts of Indian Offenses.

The new offenses are abuse of psychotoxic chemical solvents and

dangerous drug offense. They are also proposed in response to the Anti-

Drug Abuse Act, and are intended to enhance the ability of law

enforcement agencies on Indian reservations to prevent and penalize the

traffic of illegal narcotics and the misuse of dangerous substances.

The two sections were suggested by the Anadarko Area Law Enforcement

Office of the Bureau of Indian Affairs. No specific exception for

peyote is included because peyote for religious use by the Native

American Church is excluded from prosecution under the referenced

federal statute.

Prostitution was inadvertently omitted from the revision of the Law

and Order Code and is, therefore, included here. The crime is a

continuation of the provision contained in 25 CFR Part 11 which has

been in force for many years, with the addition of the crime of

pandering which is intended to facilitate the prosecution of persons

procuring for prostitutes.

Child abuse and neglect has been added as a separate criminal

offense. Its inclusion was inspired by the Draft

[[Page 35159]]

Child/Family Protection Code developed by the National Indian Justice

Center for the Bureau of Indian Affairs. Although there is some

overlapping of these offenses and the sexual assault provisions of the

revised Law and Order Code, the abuse provision is much broader and

will give prosecutors more flexibility in protecting children from

abuse. The mandatory reporting provision was added to conform with the

Bureau's administrative reporting requirements.

The family violence subpart establishes a new procedure for acts of

family violence. This approach to family violence reflects the decision

set forth in Thurman v. City of Torrington, 595 F. Supp. 1521 (D. Conn.

1984). Thurman filed an action against the city alleging a violation of

equal protection for the city's failure to provide the same type of

protection to persons in a family relationship as it provides to other

abused persons. The court, finding that Thurman had a cause of action

under the equal protection clause, held that the city had an

affirmative duty to treat family partners as it would other abused

persons. The knowledge that arrests deter subsequent family violence

has resulted in all states passing some type of special legislation for

acts of family violence. Forty-eight states have warrantless arrest

provisions and many have special protective orders. This subpart is

drawn from those statutes. Although much of this subpart is procedural,

we have not included it in the procedures sections. Because the

procedure is complicated, comprehensive and applicable to only one

general situation, we concluded that it deserved its own subpart under

Part 11.

The proposed rule will not require additional staffing for these

courts. It is not anticipated that this revision will have a

significant effect on the annual caseload of these courts because it

does not enlarge their jurisdiction. Prosecutors must routinely use

their discretion in balancing their workloads with the time and

prosecutorial resources available. Likewise, in sentencing convicted

defendants, judges are acutely aware of the constraints imposed by

limited jail space.

Courts of Indian Offenses are funded in their entirety by the

Federal Government and do not receive additional funding from tribal

governments. Because we do not foresee any economic effect on Courts of

Indian Offenses as a result of these amendments, there will be no

requirement of additional outlays by the Federal Government or the

tribes affected by the proposed amendments.

Certification and Evaluation

The authority to issue this amendment is vested in the Secretary of

the Interior by 5 U.S.C. 301 and 25 U.S.C. 2 and 9, and 25 U.S.C. 13

which authorize appropriations for ``Indian judges.''

Publication of the proposed rule by the Department of the Interior

(Department) provides the public an opportunity to participate in the

rulemaking process. Interested persons may submit written comments

regarding the proposed rule to the location identified in the

``addresses'' section of this document.

Executive Order 12988

The Department has determined that this proposed rule meets the

applicable standards provided in sections 3(a) and 3(b)(2) of Executive

Order 12988.

Executive Order 12866

This proposed rule is not a significant regulatory action under

Executive Order 12866.

Regulatory Flexibility Act

This proposed rule will not have a significant economic impact on a

substantial number of small entities under the Regulatory Flexibility

Act (5 U.S.C. 601 et seq.).

Executive Order 12630

The Department has determined that this proposed rule does not have

``significant'' takings implications. The proposed rule does not

pertain to ``taking'' of private property interests, nor does it impact

private property.

Executive Order 12612

The Department has determined that this proposed rule does not have

significant federalism effects because it pertains solely to Federal-

tribal relations and will not interfere with the roles, rights and

responsibilities of states.

NEPA Statement

The Department has determined that this proposed rule does not

constitute a major Federal action significantly affecting the quality

of the human environment and that no detailed statement is required

pursuant to the National Environmental Policy Act of 1969.

Unfunded Mandates Act of 1995

This proposed rule imposes no unfunded mandates on any governmental

or private entity and is in compliance with the provisions of the

Unfunded Mandates Act of 1995.

Paperwork Reduction Act of 1995

This rule has been examined under the Paperwork Reduction Act of

1995 and has been found to contain no information collection

requirements.

Drafting Information

The primary authors of this document are Neil R. McDonald, Office

of the Solicitor, Division of Indian Affairs, and Bettie Rushing,

Office of Tribal Services, Bureau of Indian Affairs, Department of the

Interior.

List of Subjects in 25 CFR Part 11

Courts, Indians--law, Law enforcement, Penalties.

For the reasons set out in the preamble, Part 11 of Chapter 1 of

Title 25 of the Code of Federal Regulations is proposed to be amended

as set forth below.

PART 11--COURTS OF INDIAN OFFENSES AND LAW AND ORDER CODE

1. The authority citation for 25 CFR Part 11 continues to read as

follows:

Authority: 5 U.S.C. 301; R.S. 463; 25 U.S.C. 2; R.S. 465; 25

U.S.C. 9; 42 Stat. 208; 25 U.S.C. 13; 38 Stat. 586; 25 U.S.C. 200.

Subpart A--Application; Jurisdiction

2. Section 11.100 is amended by revising paragraphs (a), (b) and

(c) to read as follows:

Sec. 11.100 Where are Courts of Indian Offenses established?

(a) Unless indicated otherwise in this title, the regulations in

this part apply to the Indian country (as defined in 18 U.S.C. 1151)

occupied by the following tribes:

(1) Red Lake Band of Chippewa Indians (Minnesota).

(2) Confederated Tribes of the Goshute Reservation (Nevada).

(3) Lovelock Paiute Tribe (Nevada).

(4) Te-Moak Band of Western Shoshone Indians (Nevada).

(5) Yomba Shoshone Tribe (Nevada).

(6) Kootenai Tribe (Idaho).

(7) Shoalwater Bay Tribe (Washington).

(8) Eastern Band of Cherokee Indians (North Carolina).

(9) For the following tribes located in the former Oklahoma

Territory (Oklahoma):

(i) Absentee Shawnee Tribe of Indians of Oklahoma

(ii) Apache Tribe of Oklahoma

(iii) Caddo Tribe of Oklahoma

(iv) Cheyenne-Arapaho Tribe of Oklahoma

(v) Citizen Band of Potawatomi Indians of Oklahoma

[[Page 35160]]

(vi) Comanche Tribe of Oklahoma (Except Comanche Children's Court)

(vii) Delaware Tribe of Western Oklahoma

(viii) Fort Sill Apache Tribe of Oklahoma

(ix) Iowa Tribe of Oklahoma

(x) Kaw Tribe of Oklahoma

(xi) Kickapoo Tribe of Oklahoma

(xii) Kiowa Tribe of Oklahoma

(xiii) Otoe-Missouria Tribe of Oklahoma

(xiv) Pawnee Tribe of Oklahoma

(xv) Ponca Tribe of Oklahoma

(xvi) Tonkawa Tribe of Oklahoma

(xvii) Wichita and Affiliated Tribes of Oklahoma.

(10) Hoopa Valley Tribe, Yurok Tribe, and Coast Indian Community of

California (California Jurisdiction limited to special fishing

regulations).

(11) Louisiana Area (includes Coushatta and other tribes in the

State of Louisiana which occupy Indian country and which accept the

application of this part);

Provided that this part shall not apply to any Louisiana tribe

other than the Coushatta Tribe until notice of such application has

been published in the Federal Register.

(12) For the following tribes located in the former Indian

Territory (Oklahoma):

(i) Chickasaw Nation

(ii) Choctaw Nation

(iii) Thlopthlocco Tribal Town

(iv) Seminole Nation

(v) Eastern Shawnee Tribe

(vi) Miami Tribe

(vii) Modoc Tribe

(viii) Ottawa Tribe

(ix) Peoria Tribe

(x) Quapaw Tribe

(xi) Wyandotte Tribe

(xii) Seneca-Cayuga Tribe

(xiii) Osage Tribe.

(13) Ute Mountain Ute Tribe (Colorado).

(b) The purpose of the regulations in this part is to provide

adequate machinery for the administration of justice for Indian tribes

in those areas of Indian country where tribes retain jurisdiction over

Indians that is exclusive of state jurisdiction but where tribal courts

have not been established to exercise that jurisdiction or where tribal

justice systems are not functioning.

(c) The regulations in this part continue to apply to tribes listed

in Sec. 11.100(a) until a law and order code which includes the

establishment of a court system has been adopted by the tribe in

accordance with its constitution and by-laws or other governing

documents has become effective, and the Assistant Secretary--Indian

Affairs or his or her designee has received a valid tribal enactment

identifying the future effective date of the code's implementation. The

effective date of the code's implementation must allow 60 days for

publication of the amendment to Sec. 11.100(a) which provides public

notice of the change. The tribally established future effective date

will also be published as the effective date of the change.

* * * * *

3. The headings of the following sections are revised to read as

follows:

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Section Old heading New heading

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11.101.......................... Prospective When are these

application of regulations

regulations. effective?

11.102.......................... Criminal What is the

jurisdiction; criminal

limitation of jurisdiction of

actions. the Court of

Indian Offenses?

11.103.......................... Civil What is the civil

jurisdiction; jurisdiction of

limitation of the Court of

actions. Indian Offenses?

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4. Section 11.104 is amended by revising paragraphs (a) through (d)

to read as follows:

Sec. 11.104 What are the jurisdictional limitations of the Court of

Indian Offenses?

(a) No Court of Indian Offenses may exercise any jurisdiction over

a Federal or state official that it could not exercise if it were a

tribal court. The jurisdiction of Courts of Indian Offenses shall not

extend to Federal or state employees acting within the scope of their

employment.

(b) Unless otherwise provided by a resolution or ordinance of the

tribal governing body of the tribe occupying the Indian country over

which a Court of Indian Offenses has jurisdiction, no Court of Indian

Offenses may adjudicate an election dispute or take jurisdiction over a

suit against the tribe or adjudicate any internal tribal government

dispute.

(c) A decision of the Court of Indian Offenses, acting as a tribal

forum by resolution or ordinance of a tribal governing body under

paragraph (b) of this section, must be given great weight by the Bureau

of Indian Affairs in deciding who is a tribal official.

(d) A tribe may not be sued in a Court of Indian Offenses unless

its tribal governing body explicitly waives its tribal immunity by

tribal resolution or ordinance.

* * * * *

Subpart B--Courts of Indian Offenses; Personnel; Administration

5. Section 11.200 is amended by revising the heading and paragraph

(c) to read as follows:

Sec. 11.200 What is the composition of the Court of Indian Offenses?

* * * * *

(c) Appeals shall be heard by a magistrate who was not involved in

the trial of the case.

* * * * *

6. Section 11.201 is amended by revising the heading and paragraph

(a) to read as follows:

Sec. 11.201 How are magistrates for the Court of Indian Offenses

appointed?

(a) Each magistrate shall be appointed by the Assistant Secretary--

Indian Affairs or his or her designee subject to confirmation by a

majority vote of the tribal governing body of the tribe occupying the

Indian country over which the court has jurisdiction. In the case of

multi-tribal courts, the appointment of the magistrate is subject to

confirmation by a majority of the tribal governing bodies of the tribes

under the jurisdiction of a Court of Indian Offenses. Only the

Assistant Secretary--Indian Affairs may grant a waiver of this

paragraph when discord precludes confirmation, and appoint a magistrate

for a term not to exceed one year.

* * * * *

7. The headings of the following sections are revised to read as

follows:

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Section Old heading New heading

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11.202.......................... Removal of How is a

magistrates. magistrate of the

Court of Indian

Offenses removed?

11.203.......................... Court clerks...... How are the clerks

of the Court of

Indian Offenses

appointed and

what are their

duties?

11.205.......................... Standard governing Are there

appearance of standards for the

attorneys and lay appearance of

counselors. attorneys and lay

counselors?

11.206.......................... Court records..... Is the Court of

Indian Offenses a

court of record?

11.207.......................... Cooperation of What are the

Bureau of Indian responsibilities

Affairs employees. of Bureau of

Indian Affairs

employees?

[[Page 35161]]

11.208.......................... Payment of May Individual

judgments from Indian Money

individual Indian accounts be used

money accounts. for payment of

judgments?

11.209.......................... Disposition of How does the Court

fines. of Indian

Offenses dispose

of fines?

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Subpart C--Criminal Procedure

8. Section 11.315 is amended by revising paragraph (a) to read as

follows:

Sec. 11.315 Sentencing.

(a) Any person who has been convicted in a Court of Indian Offenses

of a criminal offense under the regulations of this part may be

sentenced to one or a combination of the following penalties:

(1) Imprisonment for a period not to exceed the maximum permitted

by the section defining the offense, which in no case shall be greater

than one year.

(2) A money fine in an amount not to exceed the maximum permitted

by the section defining the offense, which in no case shall be greater

than five thousand dollars ($5,000).

* * * * *

Subpart D--Criminal Offenses

9. Section 11.450 is amended by revising paragraph (a) to read as

follows:

Sec. 11.450 Maximum fines and sentences of imprisonment.

(a) A person convicted of an offense under the regulations in this

part may be sentenced as follows:

(1) If the offense is a misdemeanor, to a term of imprisonment not

to exceed one year or to a fine not to exceed five thousand dollars

($5,000), or both;

(2) If the offense is a petty misdemeanor, to a term of

imprisonment not to exceed six months, and to a fine not to exceed five

hundred dollars ($500), or both;

(3) If the offense is a violation, to a term of imprisonment not to

exceed three months or to a fine not to exceed two hundred fifty

dollars ($250), or both.

* * * * *

10. Sections 11.451 through 11.455 are added to read as follows:

Sec. 11.451 Abuse of psychotoxic chemical solvents.

(a) It shall be unlawful purposely to smell or inhale the fumes of

any psychotoxic chemical solvent, or to possess, purchase, or attempt

to possess or purchase any psychotoxic chemical solvent, with the

intention of causing a condition of intoxication, inebriation,

excitement, stupefaction, or the dulling of the brain or nervous

system; or to sell, give away, dispense, or distribute, or offer to

sell, give away, dispense, or distribute any psychotoxic chemical

solvent knowing or believing that the purchaser or another intends to

use the solvent in violation of this section.

(b) This section shall not apply to the inhalation of anesthesia

for medical or dental purposes.

(c) As used in this section, ``psychotoxic chemical solvent''

includes any glue, gasoline, paint, hair spray, lysol, or other

substance containing one or more of the following chemical compounds:

acetone and acetate, benzene, butyl-alcohol, methyl ethyl, peptone,

pentachlorophenol, petroleum ether, or other chemical substances

capable of causing a condition of intoxication, inebriation,

excitement, stupefaction, or the dulling of the brain or nervous system

as a result of the inhalation of the fumes or vapors of such chemical

substance. The statement of listing of the contents of a substance

packaged in a container by the manufacturer or producer thereof shall

be proof of the contents of such substances without further expert

testimony if it reasonably appears that the substance in such container

is the same substance placed therein by the manufacturer or producer.

(d) Abuse of psychotoxic chemical solvents, as defined in this

section, shall be punishable as a petty misdemeanor, and the court may

order any person using psychotoxic chemical solvents for inhalation to

be committed to a facility for treatment for a term not to exceed six

months.

(e) Such psychotoxic chemical solvents kept or used in violation of

this section are hereby declared to be contraband and upon proof of a

violation, following public notice and an opportunity for any person

claiming an interest therein to be heard, shall be forfeited to the

government by order of the court.

Sec. 11.452 Dangerous drug offense.

(a) It shall be unlawful, except as authorized and controlled by

Federal law, to manufacture, distribute, possess with intent to

distribute, dispense, create, possess, or cultivate a controlled or a

counterfeit substance; or to obtain or acquire possession of a

controlled substance by misrepresentation, fraud, forgery, deception,

or subterfuge; or to knowingly or intentionally use any communication

facility in committing any of the above prohibited acts.

(b) Controlled or counterfeit substances shall consist of the

substances listed in 21 U.S.C. 812, and any other chemical substance,

natural or artificial, defined as a controlled or dangerous substance,

the possession, sale, distribution, or use of which is prohibited by

Federal law.

(c) Each of the unlawful acts listed in paragraph (a) of this

section shall be punishable as a misdemeanor. Upon conviction under

this section for sales distribution, possession with the intent to

distribute, manufacture with intent to sell, or cultivation with intent

to distribute, banishment may also be imposed for a term not to exceed

ten years.

(d) Any substance handled in violation of this section is deemed

and declared to be contraband and upon proof of such a violation, after

public notice and an opportunity for any person claiming an interest in

the substance to be heard, shall be forfeited to the government by

order of the court.

(e) Any personal property used to transport, conceal, manufacture,

cultivate, or distribute the controlled dangerous substance in

violation of this section shall be subject to forfeiture to the

government by order of the court upon proof of such use, following

public notice and opportunity for any person claiming an interest in

the property to be heard.

Sec. 11.453 Prostitution.

A person who commits prostitution or pandering or who knowingly

keeps, maintains, rents or leases, any house, room, tent, or other

place for the purpose of prostitution is guilty of a misdemeanor.

Sec. 11.454 Child abuse and neglect.

(a) A person commits a misdemeanor if he or she inflicts abuse or

neglect on a child. Child abuse or neglect includes:

(1) Any case in which a child exhibits evidence of skin bruising,

bleeding, malnutrition, burns, fracture of any bone, subdural hematoma,

soft tissue swelling, or is dead and such condition or death is not

justifiably explained, or where the history given concerning such

condition or death or circumstances indicate that such condition or

death may not be the product of an accidental occurrence;

(2) Any case in which a child is subjected to sexual assault or

molestation, sexual exploitation, or prostitution;

(3) Any case in which circumstances indicate that a child's health

or welfare is harmed or threatened by negligent treatment or

maltreatment by a person; and/or,

[[Page 35162]]

(4) Any case in which a child is in need of services because of the

failure of the child's parent(s), legal guardian(s), or custodian(s) to

provide adequate food, clothing, shelter, medical care, or supervision

that a prudent parent would take.

(b) For purposes of this section, ``child'' means any individual

who is not married and has not attained 18 years of age.

Sec. 11.455 Persons required to report child abuse and neglect.

(a) Any person having reasonable cause to know or suspect that a

child was abused or neglected in Indian country shall report the

incident. Any person shall also report any actions which would

reasonably result in abuse or neglect.

(b) Any person who fails to report an instance of child abuse or

neglect in Indian country of which he or she has knowledge or of which

he or she should reasonably have knowledge is guilty of a misdemeanor.

Any person who inhibits the making of a report is guilty of a

misdemeanor.

(c) Any person making a report in good faith shall be immune from

criminal and civil liability.

11. A new Subpart L is added to read as follows:

Subpart L--Child Protection and Family Violence Procedures

Sec.

11.1200 Child protection procedures.

11.1201 Family violence procedures.

Subpart L--Child Protection and Family Violence Procedures

Sec. 11.1200 Child protection procedures.

As required by the Indian Child Protection and Family Violence

Prevention Act, 25 U.S.C. 3203, the following child protection

procedures are established.

(a) Reporting child abuse and neglect. Oral reports of child abuse

and neglect in Indian country must be made immediately to the local

child protective services or local law enforcement.

(b) Federal Bureau of Investigation. If the report involves an

Indian child or the person alleged to have abused or neglected the

child is an Indian and the preliminary inquiry indicates a criminal

violation has occurred, the local law enforcement agency (if other than

the Federal Bureau of Investigation) must immediately report the

incident to the Federal Bureau of Investigation.

(c) Child protection report. Within 36 hours, a written report must

be prepared by the receiving agency. The report must include:

(1) The name, address, age, and sex of the child that is the

subject of the report;

(2) The grade and the school in which the child is currently

enrolled;

(3) The name and address of the child's parents or other persons

responsible for the child's care;

(4) The name and address of the alleged offender;

(5) The name and address of the person who made the report to the

agency;

(6) A brief narrative as to the nature and extent of the child's

injuries, including any previously known or suspected abuse of the

child or the child's siblings and the suspected date of the abuse; and,

(7) Any other information the agency or the person who made the

report to the agency believes to be important to the investigation and

disposition of the alleged abuse.

(d) Investigation. Any local law enforcement agency or local child

protective services agency that receives a report alleging abuse or

neglect described in Sec. 11.454 must immediately initiate an

investigation of such allegation and take appropriate steps to secure

the safety and well-being of the child or children involved.

(e) Investigative report. Upon completion of the investigation of

any report of alleged abuse that is made to a local law enforcement

agency or local child protective services agency, such agency must

prepare a final written report on such allegation.

(f) Confidentiality. The identity of any person making a report

under this section must not be disclosed, without the consent of the

individual, to any person other than a court of competent jurisdiction

or an employee of the Indian tribe, state or Federal Government who

needs to know the information in the performance of the employee's

duties.

(g) Complaint. A complaint must be filed by a law enforcement

officer.

Sec. 11.1201 Family violence procedures.

(a) Warrantless arrest. A law enforcement officer shall arrest a

person and take that person into custody without a warrant when the

officer has probable cause to believe that the person has committed a

family violence act such as intentional or negligent infliction of

bodily injury; unreasonable confinement; intimidation; cruel punishment

resulting in physical harm, pain or mental anguish; any sexual contact

intended to sexually gratify the person making the contact and which is

without consent or obtained by intimidation or fraud; intentional

infliction of threats, humiliation or intimidation; unauthorized or

improper use of funds, property or other resources; or criminal

trespass upon a spouse, former spouse, family member, present or former

household member, or co-parent.

(b) Definition of co-parent. For purposes of this subpart ``co-

parent'' means persons who have a child in common regardless of whether

they have been married or have lived together at any time. For purposes

of this subpart ``family member'' includes grandparents, aunts, uncles

and cousins who are present or former household members.

(c) Liability. No law enforcement officer shall be held criminally

or civilly liable for making an arrest pursuant to this subpart,

provided he or she acts reasonably and in good faith.

(d) Petition for order of protection. A victim of a family violence

act may petition the court under this subpart for an order of

protection.

(1) The petition shall be made under oath or shall be accompanied

by a sworn affidavit setting out specific facts describing the act of

family violence.

(2) No petitioner is required to file for annulment, separation, or

divorce as a prerequisite to obtaining an order of protection. However,

the petition shall state whether any other family action is pending

between the petitioner and the respondent.

(3) Standard simplified petition forms with instructions for

completion shall be available to petitioners not represented by

counsel. Law enforcement agencies shall keep such forms and make them

available upon request to victims of family violence.

(e) Emergency order of protection. Upon the filing of a petition

for order of protection:

(1) The court may immediately grant an ex parte emergency order of

protection if there is clear and convincing evidence from the specific

facts shown by the affidavit or by the petition that a family violence

act has occurred;

(2) The court shall cause the emergency order of protection

together with notice of hearing to be served immediately on the person

alleged to have committed a family violence act; and,

(3) The court shall hold a hearing on the question of continuing

the order within ten days of granting the emergency order of

protection; or

(4) If an ex parte order is not granted, the court shall serve

notice to appear upon both parties and hold a hearing on the petition

for order of protection within seventy-two hours after the filing of

the petition; if notice of hearing

[[Page 35163]]

cannot be served within seventy-two hours, a temporary order of

protection may be issued;

(5) If notice of hearing cannot be served within 10 days, the

temporary order of protection shall be automatically extended for ten

days; and,

(6) If after the 10-day extension notice to appear cannot be

served, the temporary order of protection shall expire.

(f) Order of protection. Following a hearing and finding that a

family violence act occurred, the court may enter an order of

protection that specifically describes in clear language,

understandable to the person who committed the family violence act, the

behavior the court has ordered he or she do or refrain from doing. In

any order of protection, the court:

(1) May order the person who committed the family violence act to

refrain from acts or threats of violence against the petitioner or any

other household member.

(2) May order that the person who committed the family violence act

be removed from the home of the petitioner;

(3) May grant sole possession of the residence or household to the

petitioner during the period the order of protection is effective, or

order the person who has committed a family violence act to provide

temporary suitable alternative housing for the petitioner and other

household members to whom the respondent owes a legal obligation of

support;

(4) May award temporary custody of any children involved when

appropriate and provide for visitation rights, child support, and

temporary support for the petitioner on a basis which gives primary

consideration to the safety of the petitioner and other household

members;

(5) May order that the person who committed a family violence act

not initiate contact with the petitioner;

(6) May restrain the parties from transferring, concealing,

encumbering, or otherwise disposing of one another's property or the

joint property of the parties except in the usual course of business or

for the necessities of life; and to account to the court for all such

transferring, encumbrances, and expenditures made after the order is

served or communicated;

(7) May order other injunctive relief as the court deems necessary

for the protection of the petitioner including orders to law

enforcement agencies as provided by this subpart;

(8) Shall give notice that violation of any provision of the order

of protection constitutes contempt of court and may result in a fine or

imprisonment, or both;

(9) Shall indicate whether the order of protection supersedes or

alters prior orders pertaining to family matters between the parties;

(10) Shall not affect the title to any property or allow the

petitioner to transfer, conceal, encumber, or otherwise dispose of

respondent's property or the joint property of the parties.

(g) Review hearing. Either party may request a review hearing to

amend or vacate the order of protection.

(h) Service of the protection order. An order of protection granted

under this subpart shall be filed with the clerk of the court and a

copy shall be sent by the clerk of the court to the law enforcement

agency with the jurisdiction over the areas of Indian Country in which

the court is located. The order shall be personally served upon the

respondent, unless the respondent or his or her attorney was present at

the time the order was issued. If the court finds the petitioner unable

to pay court costs, the order shall be served without cost to the

petitioner.

(i) Duration of order of protection. An order of protection granted

by the court shall be effective for a fixed period of time not to

exceed three months. The order may be extended for good cause upon

motion of the petitioner for an additional period of time not to exceed

three months.

(j) Contempt of court. Any willful disobedience or interference

with any court order constitutes contempt of court which may result in

a fine or imprisonment, or both in accordance with this part.

(k) Remedies. The remedies provided in this subpart are in addition

to the other civil or criminal remedies available to the petitioner.

(l) Emergency assistance. The court shall require the local law

enforcement agency to give notice of the availability of emergency

assistance. Notice shall include telling all victims of family violence

where a shelter or other services are available in the community and

giving all victims immediate notice of their legal rights and remedies.

The notice must also include furnishing all victims of family violence

a copy of the following statement:

IF YOU ARE A VICTIM OF FAMILY VIOLENCE, you can ask the

prosecutor to file a criminal complaint. You also have the right to

go to court and file a petition requesting an order of protection

from family violence. The order may include the following:

(1) an order restraining the person who has committed a family

violence act from further acts of family violence;

(2) an order directing the person who has committed a family

violence act to leave your household;

(3) an order preventing the person who has committed a family

violence act from entering your residence, school, business, or

place of employment;

(4) an order awarding you custody of or the other parent

visitation with a minor child or children;

(5) an order directing the person who has committed a family

violence act to pay support to you and the minor children if the

person who has committed an act of family violence has a legal

obligation to do so;

(6) an order directing the person who has committed a family

violence act to account for your funds or property or to pay

restitution for damages resulting from the wrongdoing;

(7) an order directing the appropriate human services agency to

deliver protective services and provide the least restrictive

alternatives for services, care, treatment, or placement.

Dated: June 6, 1996.

Ada E. Deer,

Assistant Secretary--Indian Affairs.

[FR Doc. 96-16039 Filed 7-3-96; 8:45 am]

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