Indian Country Law Enforcement

DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 12

RIN 1076-AD56

Indian Country Law Enforcement

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Final rule.

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SUMMARY: The Bureau of Indian Affairs is establishing standards for

Bureau of Indian Affairs (BIA) and tribal law enforcement programs

receiving Federal funding or performing duties using a Federal law

enforcement commission. These regulations will ensure 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, Public Law

101-379 (25 U.S.C. 2801 et seq.).

EFFECTIVE DATE: These regulations take effect on May 2, 1997.

FOR FURTHER INFORMATION CONTACT: The Director, Office of Law

Enforcement Services at (505) 248-7937.

SUPPLEMENTARY INFORMATION: The authority to issue rules and

regulations is vested in the Secretary of the Interior by 5 U.S.C.

301 and sections 463 and 465 of the Revised Statutes, 25 U.S.C. 2

and 9.

Indian Police and Detention Standards regulations were published in

1975 and 1976, respectively, and have not been updated. See 25 CFR Part

12. In 1990, the Indian Law Enforcement Reform Act (Pub. L. 101-379, 25

U.S.C. 2801 et seq.) specified changes for the Bureau of Indian Affairs

and tribal law enforcement and detention programs to be implemented as

rules by the Secretary of the Interior who was given the overall

responsibility for providing or assisting in the provision of law

enforcement services in Indian country as defined in 18 U.S.C. 1151.

Law enforcement appears in Part 12, and Detention and Rehabilitation

appears in Part 10, Chapter I of Title 25 Code of Federal Regulations.

The Office of Law Enforcement Services, Bureau of Indian Affairs,

is updating and revising the Bureau of Indian Affairs Manual (BIAM),

and accompanying operational handbooks that provide policy, procedures,

guidelines and standards for all law enforcement programs. The manual

and accompanying handbooks will be available to program managers and

supervisors, the public, other agencies, and law enforcement officers

or investigators. Self-governance tribes with compacts or other tribal

entities with enforcement jurisdiction other than the Bureau of Indian

Affairs or contracts are encouraged to use the manuals and handbooks

for guidance in developing or maintaining their own programs. The

Indian Country Detention Facilities and Programs manuals and handbooks

may be found in Chapter 69 Bureau of Indian Affairs Manual (BIAM)

including an inmate handbook for all individuals who are incarcerated

in a BIA or tribal detention facility.

Review of Public Comments

The Nez Perce Tribe expressed several concerns with the proposed

rule, many relating to their anticipated contracting of their law

enforcement program under self-determination. This rule will not change

BIA's relationship with a tribe or any tribe's ability to self-govern.

This rule implements the Indian Law Enforcement Reform Act (Pub. L.

101-379) and suggests minimal professional standards for law

enforcement officers.

Each of the Nez Perce Tribe's comments are addressed here:

The tribe believes the local superintendent or chief law

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enforcement officer should supervise the criminal investigator. Title

25 U.S.C. 2802 stipulates that all BIA criminal investigators must be

supervised only by other law enforcement officers of the Division of

Law Enforcement. The U.S. Department of Justice has expressed its

support for this concept. This does not affect any tribal or contracted

criminal investigator, as they are supervised locally.

The tribe feels the minimum guidelines do not ensure the best or

most adequate police protection. We agree. They are only the minimum

standards required for an officer commissioned by or operating under a

contract with the BIA. Tribes are encouraged to create their own

standards that exceed BIA standards if they desire. Tribes who have

contracted their program under self-determination procedures may still

determine their own needs and adopt policies reflecting these needs,

and adhering to these minimum professional standards should not

interfere with that process in any way. This rule only establishes the

minimum standards for training and qualifications which should be

expected of any professional law enforcement program. This is analogous

to any of the 50 United States, which have all adopted minimum

standards for their Police Officer Standards and Training (POST)

organizations. While each municipality within a State has total control

over its own police department, any law enforcement officer employed in

that department must meet at least the minimum standards established by

that State's POST commission. This rule serves a similar purpose.

The tribe expressed concern that performance, not compliance,

should be the basis for denying or rejecting funding for law

enforcement programs. We believe the two concepts are directly related.

It would not be reasonable to expect an untrained or otherwise

unqualified law enforcement officer to perform his/her duties at an

adequate level. Local community residents should certainly expect

officers working in their community to be professional and to meet at

least these minimum standards.

The tribe asks for specifics on how the BIA will interpret tribal

law. This rule requires tribal permission for BIA officers to enforce

tribal law, and encourages local arrangements and agreements. We firmly

believe these decisions should be made at the local level whenever

possible.

The tribe expressed its belief that tribes should manage their own

budgets. We agree, and nothing in this rule would prevent that.

The tribe commented on the requirement for a successful background

investigation on law enforcement officers by indicating tribes should

be able to make law enforcement program decisions based on their own

unique needs. We agree, but do not believe that should include

employing a law enforcement officer with a criminal history or who is

otherwise unsuitable as a law enforcement officer. We believe the

successful completion of a background investigation is an entirely

reasonable requirement for any law enforcement officer in any

jurisdiction. Again, this reflects similar standards adopted by all 50

United States, and mirrors requirements in the Reform Act. The

Department of Justice has expressed its support for this concept, and

included this requirement in the agreement between the Attorney General

and Secretary of the Interior regarding the investigation and

prosecution of crime in Indian country.

The tribe expressed a belief that any reasonable code of conduct

can work, but it must be enforced consistently. We agree.

The tribe stated its belief that BIA should monitor officer

misconduct; that if the tribe is the supervisor, it must have the

ability to impose sanctions for misconduct; and that BIA should provide

investigative assistance and support. We agree with the tribe on these

issues and this rule supports the tribe fully in this regard.

Many of the tribe's comments are directed at some of the basic

concepts of the Indian Law Enforcement Reform Act, specifically

establishment of standards for law enforcement officers and procedures

for the professional supervision of BIA criminal investigators. BIA is

extremely sensitive to these concerns and will continue to work closely

with all tribes on a government-to-government basis on law enforcement

and other issues.

Evaluation and Certification

Executive Order 12988

The Department has determined that this rule meets the applicable

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

12988.

Executive Order 12866

This rule is not a significant regulatory action under Executive

Order 12866.

Regulatory Flexibility Act

This 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 rule does not have

significant takings implications. The rule does not pertain to

``taking'' of private property interests, nor does it affect private

property.

Executive Order 12612

The Department has determined that this 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 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 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 author of this document is Mark

Mullins, Bureau of Indian Affairs, Office of Law Enforcement Services.

List of Subjects in 25 CFR Part 12

Indians--residential and holding facilities, Law enforcement.

For the reasons given in the preamble Part 12, Chapter I of Title

25 of the Code of Federal Regulations is revised to read as follows:

PART 12--INDIAN COUNTRY LAW ENFORCEMENT

Subpart A--Responsibilities

Sec.

12.1 Who is responsible for the Bureau of Indian Affairs law

enforcement function?

12.2 What is the role of the Bureau of Indian Affairs Director of

Law Enforcement Services?

12.3 Who supervises Bureau of Indian Affairs criminal

investigators?

12.4 Who Supervises the Bureau of Indian Affairs uniformed police,

detention, and conservation enforcement functions?

Subpart B--Policies and Standards

12.11 Do I have to follow these regulations?

12.12 What about self-determination?

12.13 What happens if I do not follow the rules in this part?

[[Page 15612]]

12.14 Where can I find specific policies and standards for law

enforcement functions in Indian country?

Subpart C--Authority and Jurisdiction

12.21 What authority is given to Indian country law enforcement

officers to perform their duties?

12.22 Can Bureau of Indian Affairs law enforcement officers enforce

tribal laws?

12.23 What are the jurisdictional limits in Indian country?

Subpart D--Qualifications and Training Requirements

12.31 Are there any minimum employment standards for Indian country

law enforcement personnel?

12.32 Do minimum employment standards include a background

investigation?

12.33 Are Indian country law enforcement officers paid less than

other law enforcement officers?

12.34 Do minimum salaries and position classifications apply to a

tribe that has contracted or compacted law enforcement under self-

determination?

12.35 Do Indian country law enforcement officers complete any

special training?

12.36 Does other law enforcement training count?

Subpart E--Records and Information

12.41 Who keeps statistics for Indian country law enforcement

activities?

12.42 Do Indian country law enforcement programs share information

with their own communities or other agencies?

Subpart F--Conduct

12.51 Must Indian country law enforcement officers follow a code of

conduct?

12.52 How do I report misconduct?

12.53 Who investigates officer misconduct?

12.54 What can I do if I believe my civil rights have been

violated?

12.55 Are there any limits on how much force an officer can use

when performing law enforcement duties?

Subpart G--Support Functions

12.61 Can I be paid for information that helps solve a crime?

12.62 Who decides what uniform an Indian country law enforcement

officer can wear and who pays for it?

12.63 Do Indian country law enforcement officers perform other

duties as well?

Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 13, 2417, 2453, and

2802.

Subpart A--Responsibilities

Sec. 12.1 Who is responsible for the Bureau of Indian Affairs law

enforcement function?

The Commissioner of Indian Affairs, or in the absence of a

Commissioner, the Deputy Commissioner, is responsible for Bureau of

Indian Affairs-operated and contracted law enforcement programs, and

for overall policy development and implementation of the Indian Law

Enforcement Reform Act, Public Law 101-379 (25 U.S.C. 2801 et seq.).

Sec. 12.2 What is the role of the Bureau of Indian Affairs Director of

Law Enforcement Services?

The Director of the Office of Law Enforcement Services for the

Bureau of Indian Affairs (Director) has been delegated the

responsibility for the development of law enforcement and detention

policies, standards, and management of all Bureau of Indian Affairs

(BIA) criminal investigations, drug enforcement, training, internal

affairs, inspection and evaluation, emergency response forces, and

other national level Indian country law enforcement initiatives. The

Director publishes these policies and standards in law enforcement

manuals and handbooks. The Director is also directly responsible for

developing crime prevention and outreach programs within Indian country

law enforcement.

Sec. 12.3 Who supervises Bureau of Indian Affairs criminal

investigators?

All BIA criminal investigators are supervised by other criminal

investigators within the Office of Law Enforcement Services.

Sec. 12.4 Who supervises the Bureau of Indian Affairs uniformed

police, detention, and conservation enforcement functions?

The agency superintendent is directly responsible for the operation

and management of BIA uniformed police operations, detention

facilities, and conservation enforcement operations at any agency

having these programs. The agency superintendent must also ensure

technical support is provided to any agency contracting the law

enforcement and/or detention program.

Subpart B--Policies and Standards

Sec. 12.11 Do I have to follow these regulations?

You must follow the minimum standards outlined in the regulations

in this part if you are part of a BIA or tribal law enforcement program

receiving Federal funding or operating under a BIA law enforcement

commission.

Sec. 12.12 What about self-determination?

The regulations in this part are not intended to discourage

contracting of Indian country law enforcement programs under the Indian

Self-determination and Education Assistance Act (Pub. L. 93-638, as

amended, 25 U.S.C. 450). The Deputy Commissioner of Indian Affairs will

ensure minimum standards are maintained in high risk activities where

the Federal government retains liability and the responsibility for

settling tort claims arising from contracted law enforcement programs.

It is not fair to law abiding citizens of Indian country to have

anything less than a professional law enforcement program in their

community. Indian country law enforcement programs that receive Federal

funding and/or commissioning will be subject to a periodic inspection

or evaluation to provide technical assistance, to ensure compliance

with minimum Federal standards, and to identify necessary changes or

improvements to BIA policies.

Sec. 12.13 What happens if I do not follow the rules in this part?

Your BIA law enforcement commission may be revoked, your law

enforcement contract may be canceled, and you may no longer be eligible

for tribal shares allocated from the law enforcement budget.

Sec. 12.14 Where can I find specific policies and standards for law

enforcement functions in Indian country?

BIA will ensure that all Indian country law enforcement programs

are provided a copy of the most current policy manuals and handbooks.

Every Indian country law enforcement program covered by the regulations

in this part must maintain an effective and efficient law enforcement

program meeting minimal qualitative standards and procedures specified

in Chapter 68 Bureau of Indian Affairs Manual (BIAM) and the Law

Enforcement Handbook.

Subpart C--Authority and Jurisdiction

Sec. 12.21 What authority is given to Indian country law enforcement

officers to perform their duties?

BIA law enforcement officers are commissioned under the authority

established in 25 U.S.C. 2803. BIA may issue law enforcement

commissions to other Federal, State, local and tribal full-time

certified law enforcement officers to obtain active assistance in

enforcing applicable Federal criminal statutes, including Federal

hunting and fishing regulations, in Indian country.

(a) BIA will issue commissions to other Federal, State, local and

tribal full-time certified law enforcement officers only after the head

of the local government or Federal agency completes an agreement with

the Commissioner of Indian Affairs asking that BIA issue delegated

commissions. The agreement must include language that allows the BIA to

evaluate the effectiveness of these special law enforcement commissions

and to investigate any allegations of misuse of authority.

(b) Tribal law enforcement officers operating under a BIA contract

or compact are not automatically

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commissioned as Federal officers; however, they may be commissioned on

a case-by-case basis.

Sec. 12.22 Can Bureau of Indian Affairs law enforcement officers

enforce tribal laws?

BIA officers will enforce tribal laws only with the permission of

the tribe. Local programs are encouraged to make arrangements and

agreements with local jurisdictions to facilitate law enforcement

objectives.

Sec. 12.23 What are the jurisdictional limits in Indian country?

The Department of the Interior and the Department of Justice must

maintain and periodically review and update a memorandum of

understanding describing the relationship between the Federal Bureau of

Investigation and the Bureau of Indian Affairs in the investigation and

prosecution of major crimes in Indian country. Any law enforcement

programs performing duties under the authority of 25 U.S.C. 2803 must

follow the guidelines in the memorandum of understanding and any local

United States Attorney's guidelines for the investigation and

prosecution of Federal crimes.

Subpart D--Qualifications and Training Requirements

Sec. 12.31 Are there any minimum employment standards for Indian

country law enforcement personnel?

The Director must develop, maintain, and periodically review the

qualification standards, including medical qualification standards, for

all BIA law enforcement, detention, and conservation enforcement

occupational series. The standards will be no less stringent than the

minimum standards established by the U.S. Office of Personnel

Management (OPM) for these occupational series, and may exceed the OPM

standards. BIA standards are available for review at any BIA personnel

office. All tribal programs are encouraged to develop standards at

least as stringent as those established for BIA officers.

Sec. 12.32 Do minimum employment standards include a background

investigation?

Law enforcement authority is only entrusted to personnel possessing

adequate education and/or experience, training, aptitude, and high

moral character. All Indian country law enforcement programs receiving

Federal funding and/or authority must ensure that all law enforcement

officers successfully complete a thorough background investigation no

less stringent than required of a Federal officer performing the same

duties. The background investigations of applicants and employees must

be adjudicated by trained and qualified security professionals. All

background investigations must be documented and available for

inspection by the Bureau of Indian Affairs.

Sec. 12.33 Are Indian country law enforcement officers paid less than

other law enforcement officers?

An officer's pay is determined by his/her grade and classification.

The Commissioner of Indian Affairs must ensure that all BIA law

enforcement officer positions are established at no lower grade level

on the Federal scale than similar Federal law enforcement officer

positions in other agencies. No BIA position performing commissioned

law enforcement duties will be classified in other than the GS 0083,

police officer series, for uniformed officers and the GS 1811, criminal

investigating series, for criminal investigators.

Sec. 12.34 Do minimum salaries and position classifications apply to a

tribe that has contracted or compacted law enforcement under self-

determination?

Any contract or compact with the BIA to provide law enforcement

services for an Indian tribe must require a law enforcement officer to

be paid at least the same salary as a BIA officer performing the same

duties.

Sec. 12.35 Do Indian country law enforcement officers complete any

special training?

Law enforcement personnel of any program funded by the Bureau of

Indian Affairs must not perform law enforcement duties until they have

successfully completed a basic law enforcement training course

prescribed by the Director. The Director will also prescribe mandatory

supplemental and in-service training courses.

Sec. 12.36 Does other law enforcement training count?

All requests for evaluation of equivalent training must be

submitted to the Indian Police Academy for review, with final

determination made by the Director. Requests for a waiver of training

requirements to use personnel before completing the required courses of

instruction must be submitted to the Director and approved or

disapproved by the Commissioner of Indian Affairs. In no case will such

a waiver allow personnel to be used in any position for more than one

year without achieving training standards. Failure to complete basic

training requirements will result in removal from a law enforcement

position.

Subpart E--Records and Information

Sec. 12.41 Who keeps statistics for Indian country law enforcement

activities?

The Director maintains a criminal justice information system for

Indian country. The Director will prescribe the types of data to be

collected and the reporting format to be used to collect information

and assemble reports on crime reported in Indian country. These reports

may be provided to the Department of Justice. Any law enforcement

program receiving funding from the BIA must use the same reporting

format and submit the same statistical reports to the Office of Law

Enforcement Services as prescribed by the Director and as are required

of all BIA law enforcement programs.

Sec. 12.42 Do Indian country law enforcement programs share

information with their own communities or other agencies?

At intervals established by the Director, each BIA criminal

investigations program, and any investigations program receiving BIA

funds will consult with local tribal leaders and managers of local

patrol and detention programs. They will discuss the quality of the

local investigations program and offer feedback and technical

assistance. There will be no requirement to disclose confidential

investigative information or to compromise ongoing investigations

during this process.

Subpart F--Conduct

Sec. 12.51 Must Indian country law enforcement officers follow a code

of conduct?

All law enforcement programs receiving Bureau of Indian Affairs

funding or commissioning must establish a law enforcement code of

conduct which establishes specific guidelines for conduct on and off

duty, impartiality, and professional conduct in the performance of

duty, and acceptance of gifts or favors. Each officer must acknowledge

in writing receiving and understanding of this code of conduct. The

acknowledgment will remain on file with the law enforcement program

manager as long as the officer is employed there. Training will be

conducted on this code of conduct and other ethics issues at least once

each year.

Sec. 12.52 How do I report misconduct?

The Director will develop and maintain a reporting system that

allows any resident of or visitor to Indian country to report officer

misconduct. Each law enforcement program in Indian country will

maintain

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instructions on how to register a complaint. An overview of these steps

must be posted for public viewing at each law enforcement facility in

Indian country.

Sec. 12.53 Who investigates officer misconduct?

The Director, Office of Law Enforcement Services maintains an

internal affairs program that investigates all allegations of

misconduct by BIA officers, and any officer receiving funding and/or

authority from the BIA. All allegations of misconduct must be

thoroughly investigated and appropriate action taken when warranted.

Any person having knowledge of officer misconduct must report that

information to the officer's supervisor. The supervisor must

immediately report allegations to the internal affairs unit. Depending

upon the severity of the allegation, the matter may be dealt with

locally or it will be investigated by the internal affairs unit.

Failure of any BIA employee to report known allegations may be

considered misconduct in itself. Citizens may report officer misconduct

directly to the internal affairs unit if that is more practical.

Sec. 12.54 What can I do if I believe my civil rights have been

violated?

All allegations of civil rights violations must be reported

immediately to the internal affairs unit. That office will ensure that

allegations are immediately reported to the Civil Rights Division of

the U. S. Department of Justice through established procedures. BIA's

internal affairs unit may also investigate the matter and make

recommendations for additional action as necessary.

Sec. 12.55 Are there any limits on how much force an officer can use

when performing law enforcement duties?

The Director will develop and maintain the use of force policy for

all BIA law enforcement personnel, and for programs receiving BIA

funding or authority. Training in the use of force, to include non-

lethal measures, will be provided annually. All officers will

successfully complete a course of instruction in firearms, to include

judgement pistol shooting, approved by the Indian Police Academy before

carrying a firearm on or off duty.

Subpart G--Support Functions

Sec. 12.61 Can I be paid for information that helps solve a crime?

The Director can spend money to purchase evidence or information,

or to offer a reward, in the investigation of a crime. This is subject

to the availability of funds. This authority may be delegated in

writing to supervisory criminal investigators within the Office of Law

Enforcement Services in the BIA. The Director must develop policies and

procedures for the expenditure, control, and audit of these funds

before their use.

Sec. 12.62 Who decides what uniform an Indian country law enforcement

officer can wear and who pays for it?

Each local law enforcement program must establish its own uniform

requirements for patrol and detention personnel. Uniformed BIA police

officers may be paid an annual uniform allowance not to exceed $400.

Local programs may provide uniforms and related equipment to officers

in lieu of this payment. All law enforcement officers must also have

their official identification on their person at all times when

performing law enforcement duties. Uniforms, when worn, will be plainly

distinguishable from the uniforms of any non-law enforcement personnel

working on the reservation.

Sec. 12.63 Do Indian country law enforcement officers perform other

duties as well?

Law enforcement commissions will only be issued by the Bureau of

Indian Affairs to persons occupying positions as full-time officers.

Bureau of Indian Affairs funded or commissioned criminal investigators

will not be responsible for supervising or managing any patrol,

detention, or other uniformed police programs.

Dated: March 24, 1997.

Ada E. Deer,

Assistant Secretary--Indian Affairs.

[FR Doc. 97-8341 Filed 4-1-97; 8:45 am]

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