Assumption of Concurrent Federal Criminal Jurisdiction in Certain Areas of Indian Country, 29675-29680 [2011-12541]
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Federal Register / Vol. 76, No. 99 / Monday, May 23, 2011 / Proposed Rules
assembly of the air outlet, or exchanging
certain attachment screws of the air outlet
box assembly on each door, as applicable), in
accordance with the Accomplishment
Instructions of Airbus Mandatory Service
Bulletin A330–92–3077, Revision 01, dated
March 29, 2010, or Airbus Mandatory Service
Bulletin A340–92–4078, Revision 01, dated
April 9, 2010, as applicable.
FAA AD Differences
DEPARTMENT OF JUSTICE
28 CFR Part 50
[Docket No. OAG 142; AG Order No. 3279–
2011]
RIN 1105–AB38
Assumption of Concurrent Federal
Criminal Jurisdiction in Certain Areas
of Indian Country
Note 1: This AD differs from the MCAI
and/or service information as follows: No
differences.
AGENCY:
Other FAA AD Provisions
This rule proposes to
establish the procedures for an Indian
tribe whose Indian country is subject to
State criminal jurisdiction under Public
Law 280 (18 U.S.C. 1162(a)) to request
that the United States accept concurrent
criminal jurisdiction within the tribe’s
Indian country, and for the Attorney
General to decide whether to consent to
such a request.
DATES: Written comments must be
postmarked and electronic comments
must be submitted on or before July 7,
2011. Commenters should be aware that
the electronic Federal Docket
Management System will not accept
comments after Midnight Eastern Time
on the last day of the comment period.
ADDRESSES: Comments may be mailed to
Mr. Tracy Toulou, Director, Office of
Tribal Justice, Department of Justice,
950 Pennsylvania Avenue, NW., Room
2310, Washington, DC 20530. To ensure
proper handling, please reference OAG
Docket No. 142 on your correspondence.
You may submit comments
electronically or view an electronic
version of this proposed rule at https://
www.regulations.gov.
FOR FURTHER INFORMATION, CONTACT: Mr.
Tracy Toulou, Director, Office of Tribal
Justice, Department of Justice, at (202)
514–8812 (not a toll-free number).
SUPPLEMENTARY INFORMATION:
Posting of Public Comments. Please
note that all comments received are
considered part of the public record and
made available for public inspection
online at https://www.regulations.gov.
Such information includes personal
identifying information (such as your
name, address, etc.) voluntarily
submitted by the commenter.
You are not required to submit
personal identifying information in
order to comment on this rule. If you
want to submit personal identifying
information (such as your name,
address, etc.) as part of your comment,
but do not want it to be posted online,
you must include the phrase
‘‘PERSONAL IDENTIFYING
INFORMATION’’ in the first paragraph
Office of the Attorney General,
Department of Justice.
ACTION: Proposed rule.
SUMMARY:
(i) The following provisions also apply to
this AD:
(1) Alternative Methods of Compliance
(AMOCs): The Manager, International
Branch, ANM–116, has the authority to
approve AMOCs for this AD, if requested
using the procedures found in 14 CFR 39.19.
In accordance with 14 CFR 39.19, send your
request to your principal inspector or local
Flight Standards District Office, as
appropriate. If sending information directly
to the International Branch, send it to ATTN:
Vladimir Ulyanov, Aerospace Engineer,
International Branch, ANM–116, Transport
Airplane Directorate, FAA, 1601 Lind
Avenue, SW., Renton, Washington 98057–
3356; telephone (425) 227–1138; fax (425)
227–1149. Information may be e-mailed to:
9-ANM-116-AMOC-REQUESTS@faa.gov.
Before using any approved AMOC, notify
your appropriate principal inspector, or
lacking a principal inspector, the manager of
the local flight standards district office/
certificate holding district office. The AMOC
approval letter must specifically reference
this AD.
(2) Airworthy Product: For any requirement
in this AD to obtain corrective actions from
a manufacturer or other source, use these
actions if they are FAA-approved. Corrective
actions are considered FAA-approved if they
are approved by the State of Design Authority
(or their delegated agent). You are required
to assure the product is airworthy before it
is returned to service.
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Related Information
(j) Refer to MCAI European Aviation Safety
Agency Airworthiness Directive 2010–
0103R1, dated April 28, 2011; Airbus
Mandatory Service Bulletin A330–92–3077,
Revision 01, dated March 29, 2010; and
Airbus Mandatory Service Bulletin A340–92–
4078, Revision 01, dated April 9, 2010; for
related information.
Issued in Renton, Washington, on May 13,
2011.
Ali Bahrami,
Manager, Transport Airplane Directorate,
Aircraft Certification Service.
[FR Doc. 2011–12507 Filed 5–20–11; 8:45 am]
BILLING CODE 4910–13–P
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29675
of your comment. You also must locate
all the personal identifying information
you do not want posted online in the
first paragraph of your comment and
identify what information you want
redacted.
If you want to submit confidential
business information as part of your
comment but do not want it to be posted
online, you must include the phrase
‘‘CONFIDENTIAL BUSINESS
INFORMATION’’ in the first paragraph
of your comment. You also must
prominently identify confidential
business information to be redacted
within the comment. If a comment has
so much confidential business
information that it cannot be effectively
redacted, all or part of that comment
may not be posted on https://
www.regulations.gov.
Personal identifying information and
confidential business information
identified and located as set forth above
will be placed in the agency’s public
docket file, but not posted online. If you
wish to inspect the agency’s public
docket file in person by appointment,
please see the FOR FURTHER INFORMATION
CONTACT paragraph.
The reason the Department is
requesting electronic comments before
Midnight Eastern Time on the day the
comment period closes is that the interagency Regulations.gov/Federal Docket
Management System (FDMS), which
receives electronic comments,
terminates the public’s ability to submit
comments at Midnight on the day the
comment period closes. Commenters in
time zones other than Eastern may want
to take this fact into account so that
their electronic comments can be
received. The constraints imposed by
the Regulations.gov/FDMS system do
not apply to U.S. postal comments,
which will be considered as timely filed
if they are postmarked before Midnight
on the day the comment period closes.
Discussion
For more than two centuries, the
Federal Government has recognized
Indian tribes as domestic sovereigns that
have unique government-to-government
relationships with the United States.
Congress has broad authority to legislate
with respect to Indian tribes, however,
and has exercised this authority to
establish a complex jurisdictional
scheme for crimes committed in Indian
country. (The term ‘‘Indian country’’ is
defined in 18 U.S.C. 1151.) Criminal
jurisdiction in Indian country typically
depends on several factors, including
the nature of the crime; whether the
alleged offender, the victim, or both are
Indian; and whether a treaty, Federal
statute, executive order, or judicial
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decision has conferred jurisdiction on a
particular government.
Here, three Federal statutes are
particularly relevant: the General
Crimes Act (also known as the Indian
Country Crimes Act), 18 U.S.C. 1152;
the Major Crimes Act (also known as the
Indian Major Crimes Act), 18 U.S.C.
1153; and Public Law 280, Act of Aug.
15, 1953, Public Law 83–280, 67 Stat.
588, codified in part as amended at 18
U.S.C. 1162. Under the General Crimes
and Major Crimes Acts, which apply to
most of Indian country, jurisdiction to
prosecute most crimes in Indian country
rests with the Federal Government, the
tribal government, or both concurrently.
State criminal jurisdiction in Indian
country is generally limited to crimes
committed by non-Indians against nonIndian victims, as well as victimless
crimes committed by non-Indians.
But there is an important exception to
this general rule: In certain areas of
Indian country, Public Law 280 renders
the General Crimes and Major Crimes
Acts inapplicable and instead gives the
States jurisdiction over crimes
committed by or against Indians.
Specifically, the Public Law 280
criminal-jurisdiction provision codified
at 18 U.S.C. 1162 applies in parts of
Alaska, California, Minnesota, Nebraska,
Oregon, and Wisconsin. (Section
1162(a) expressly exempts some areas of
Indian country in these States, such as
the Red Lake Reservation in Minnesota
and the Warm Springs Reservation in
Oregon; and some of these States have
formally ‘‘retroceded’’ jurisdiction over
other reservations.) In the areas of
Indian country covered by section 1162,
which are known as ‘‘mandatory’’ Public
Law 280 jurisdictions, the Federal
Government can prosecute violations of
general Federal criminal statutes that
apply nationwide, such as Federal
narcotics laws, but typically cannot
prosecute violent crimes such as
murder, assault with a dangerous
weapon, or felony child abuse.
In contrast, the Public Law 280
provision that is codified at 25 U.S.C.
1321 provides a basis for other States to
elect to assume criminal jurisdiction in
Indian country on an optional basis,
subject to the consent of the affected
tribe. In the Indian country of these
tribes, known as ‘‘optional’’ Public Law
280 jurisdictions, the Department
understands the applicable statutes to
provide that the Federal Government
retains concurrent jurisdiction under
the General Crimes and Major Crimes
Acts. See U.S. Department of Justice,
United States Attorneys’ Manual, tit. 9,
Criminal Resource Manual § 688
(Federal Government may exercise
concurrent criminal jurisdiction in ‘‘the
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so-called ‘option states’ * * * which
assumed jurisdiction pursuant to Public
Law 280 after its enactment’’); United
States v. High Elk, 902 F.2d 660, 661
(8th Cir. 1990) (per curiam) (holding
that Federal courts retain Major Crimes
Act jurisdiction in those States that
voluntarily assumed jurisdiction under
Pub. L. 280); cf. Negonsott v. Samuels,
507 U.S. 99, 105–06 (1993) (holding that
a different Federal statute conferred
criminal jurisdiction on a State without
divesting the United States of
concurrent criminal jurisdiction). But cf.
United States v. Burch, 169 F.3d 666,
669–71 (10th Cir. 1999) (holding that a
1984 ‘‘direct congressional grant of
jurisdiction over [crimes committed in
one town in] Indian country’’ vested
Colorado with exclusive jurisdiction
akin to mandatory jurisdiction under
Public Law 280).
The Tribal Law and Order Act of 2010
The Tribal Law and Order Act of 2010
(TLOA) was enacted on July 29, 2010,
as Title II of Public Law 111–211. The
purpose of the TLOA is to help the
Federal Government and tribal
governments better address the unique
public-safety challenges that confront
tribal communities.
Section 221 of the new law permits an
Indian tribe with Indian country subject
to State criminal jurisdiction under
Public Law 280 to request that the
United States accept concurrent
jurisdiction to prosecute violations of
the General Crimes Act and the Major
Crimes Act within that tribe’s Indian
country. This jurisdiction will be
concurrent among the Federal
Government, the State government, and
(where applicable) the tribal
government. Section 221 provides for
the United States to assume concurrent
criminal jurisdiction at the tribe’s
request, and after consultation between
the tribe and the Attorney General and
consent to Federal jurisdiction by the
Attorney General. The State need not
consent. Once the United States has
accepted concurrent criminal
jurisdiction, Federal authorities can
investigate and prosecute offenses that
Public Law 280 currently bars them
from prosecuting.
Section 221 does not expressly
require Indian tribes to request that the
United States accept concurrent
jurisdiction to prosecute ‘‘all’’ violations
of the General Crimes and Major Crimes
Acts within the tribe’s Indian country.
To the contrary, the statute provides
that those two Acts ‘‘shall apply in the
areas of the Indian country of the Indian
tribe’’ only ‘‘at the request of’’ the tribe
and ‘‘after consultation with and consent
by the Attorney General.’’ 18 U.S.C.
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1162(d). Therefore, the Department
understands section 221 to permit the
tribe to request and the Attorney
General, after consultation with the
tribe, to consent to assumption of
concurrent Federal jurisdiction over a
limited set of crimes or over crimes in
a limited geographic portion of the
tribe’s Indian country.
Assumption of Concurrent Federal
Criminal Jurisdiction
This rule establishes the framework
and procedures for a mandatory Public
Law 280 tribe to request the assumption
of concurrent Federal criminal
jurisdiction within the Indian country of
the tribe. It also describes the process to
be used by the Attorney General in
deciding whether to consent to such a
request.
The TLOA provides that the Attorney
General is the deciding official for
requests submitted by Indian tribes
under section 221. Given the potentially
high volume of requests, the large
number of Department of Justice
components and non-Department
partners that should be conferred with,
and the detailed tribe-by-tribe analyses
that will be needed, the Attorney
General is delegating decisional
authority under section 221 to the
Deputy Attorney General. The Office of
the Deputy Attorney General (ODAG)
will receive recommendations from the
Office of Tribal Justice (OTJ), the
Executive Office for United States
Attorneys (EOUSA), and the Federal
Bureau of Investigation (FBI), after
discussions with other Department
components (including the Bureau of
Prisons (BOP) and the Office of
Community Oriented Policing Services
(COPS)) and other Federal, tribal, State,
and local entities. OTJ will handle the
staffing and tracking of assumption
requests.
Pursuant to Executive Order 13175 of
November 6, 2000, the Department has
held tribal consultations regarding these
proposed assumption procedures.
Retrocession of State Criminal
Jurisdiction
The process described in this rule is
separate and distinct from Public Law
280’s ‘‘retrocession’’ process for
transferring criminal jurisdiction from
the State government to the Federal
Government. See 25 U.S.C. 1323(a). The
retrocession process is initiated by the
State, not the tribe. By contrast, the
process for a tribe to seek assumption of
concurrent Federal criminal jurisdiction
under section 221 does not require the
State’s approval. And unlike
retrocession, a section 221 assumption
gives the United States concurrent
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criminal jurisdiction without
eliminating the State’s criminal
jurisdiction.
After a tribe has submitted a request
under section 221, the Department will
publish a notice in the Federal Register
inviting input from affected State and
local law enforcement authorities. But
ultimately, it is the tribe’s request and
the Attorney General’s consent that will
determine whether the United States
accepts concurrent criminal
jurisdiction.
Where Section 221 Does Not Apply
The process described in this rule
applies only to Indian country that is
subject to ‘‘mandatory’’ Public Law 280
State criminal jurisdiction under 18
U.S.C. 1162. As indicated above, the
Department understands that the United
States already has concurrent
jurisdiction over General Crimes Act
and Major Crimes Act violations in
areas where States have assumed
criminal jurisdiction under ‘‘optional’’
Public Law 280. Accordingly, although
the TLOA requires the United States to
assume concurrent criminal jurisdiction
‘‘[a]t the request of an Indian tribe, and
after consultation with and consent by
the Attorney General,’’ 25 U.S.C.
1321(a)(2), the Department does not
believe requests by tribes are necessary
to establish concurrent Federal
jurisdiction in such areas.
Regulatory Certifications
Executive Order 12866—Regulatory
Planning and Review
This regulation has been drafted and
reviewed in accordance with Executive
Order 12866 of September 30, 1993, as
amended, Regulatory Planning and
Review, section 1(b), Principles of
Regulation. The Department of Justice
has determined that this rule is a
‘‘significant regulatory action’’ under
Executive Order 12866, section 3(f),
and, accordingly, this rule has been
reviewed by the Office of Management
and Budget.
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Executive Order 13132—Federalism
This regulation will not have
substantial direct effects on the States,
on the relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government. The process
provided under section 221 allows the
United States to assume concurrent
criminal jurisdiction over offenses in a
particular area of Indian country,
without eliminating or affecting the
State’s existing criminal jurisdiction,
and accordingly it imposes no new
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burdens on the State. This regulation
sets forth the procedural mechanism for
the Department to consider, in
consultation with other Federal, tribal,
State, and local authorities, whether or
not to consent to a request from an
individual tribe for the Federal
Government to assume concurrent
criminal jurisdiction within that tribe’s
Indian country. Therefore, in
accordance with Executive Order 13132
of August 4, 1999, it is determined that
this rule does not have sufficient
federalism implications to warrant the
preparation of a federalism assessment.
Executive Order 12988—Civil Justice
Reform
This regulation meets the applicable
standards set forth in section 3(a) and
(b)(2) of Executive Order 12988 of
February 5, 1996.
Executive Order 13175—Consultation
and Coordination With Indian Tribal
Governments
This rule comports with Executive
Order 13175 of November 6, 2000. The
rule has significant tribal implications,
as it will have substantial direct effects
on one or more Indian tribes and on the
relationship between the Federal
Government and Indian tribes. The
Department therefore has engaged in
meaningful consultation and
collaboration with tribal officials in
developing this rule. More specifically,
the Department of Justice participated in
six consultations with tribal officials on
the Tribal Law and Order Act of 2010.
The dates and locations of those tribal
consultations were as follows:
• October 14, 2010, in Billings,
Montana
• October 20, 2010, in Albuquerque,
New Mexico
• October 28, 2010, in Miami, Florida
• November 16, 2010, in
Albuquerque, New Mexico
• December 8, 2010, in Palm Springs,
California
• March 23, 2011, in Hayward,
Wisconsin
The last two consultation sessions
focused on section 221 of Public Law
111–211, with the March 23, 2011
consultation expressly addressing a
draft version of this proposed rule.
During these consultations, some
tribal officials expressed a desire to see
the Attorney General consent to each
and every tribal request for concurrent
Federal criminal jurisdiction. Other
tribal officials raised more specific
concerns. In direct response to the
latter, the Department of Justice
significantly rewrote portions of the
draft proposed rule. Eight changes are
particularly noteworthy.
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First, rather than giving priority only
to those tribal requests received by
August 31 of any calendar year, the
proposed rule now gives priority to
requests received by August 31 or by
February 28. This change effectively
doubles the number of annual cycles in
which the Department will consider
tribal requests on a prioritized basis.
Second, the proposed rule now allows
tribes to ask the United States to assume
concurrent criminal jurisdiction either
over all violations of the General Crimes
and Major Crimes Acts within the tribe’s
Indian country or over a subset of those
violations that is clearly defined in the
tribal request. Thus, requests can now
focus on a limited set of crimes or on
crimes in a limited geographic portion
of the tribe’s Indian country.
Third, the proposed rule now clarifies
why it is unnecessary, under the
Department’s understanding of the
applicable statutes, for a tribe in an
‘‘optional’’ Public Law 280 jurisdiction
to request an assumption of concurrent
Federal criminal jurisdiction.
Fourth, the proposed rule now
clarifies that Federal agencies are to
supply comments and information
relevant to each tribal request, rather
than merely announcing their overall
support or opposition for each request.
Fifth, the proposed rule reiterates that
the assumption of concurrent Federal
criminal jurisdiction under section 221
does not require the agreement, consent,
or concurrence of any State or local
government.
Sixth, the proposed rule now
expressly provides that the
Department’s Office of Tribal Justice
may give appropriate technical
assistance to any tribe that wishes to
prepare and submit a renewed request,
following the denial of an earlier
request.
Seventh, the proposed rule now states
that the assumption of concurrent
Federal criminal jurisdiction will
commence within six months of the
decision to assume jurisdiction, if
feasible, rather than merely mandating
action within twelve months.
Eighth and finally, the proposed rule
now requires that notice of a decision
consenting to the request for assumption
of concurrent Federal criminal
jurisdiction will be published in the
Federal Register.
The Department of Justice thus
believes that many of the concerns that
tribal officials expressed about section
221 and the draft proposed regulation at
the tribal consultations in 2010 and
2011 have now been met.
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Regulatory Flexibility Act
The Attorney General, in accordance
with the Regulatory Flexibility Act, 5
U.S.C. 605(b), has reviewed this
regulation and by approving it certifies
that this regulation will not have a
significant economic impact on a
substantial number of small entities.
This rule provides only a framework for
processing requests by Indian tribes for
the assumption of concurrent Federal
criminal jurisdiction over certain Indian
country crimes, as provided for by
section 221.
Unfunded Mandates Reform Act of 1995
This rule will not result in the
expenditure by State, local, and tribal
governments, in the aggregate, or by the
private sector of $100 million or more
in any one year, and it will not
significantly or uniquely affect small
governments. Therefore, no actions were
deemed necessary under the provisions
of the Unfunded Mandates Reform Act
of 1995, Public Law 104–4.
Small Business Regulatory Enforcement
Fairness Act of 1996
This rule is not a major rule as
defined by section 251 of the Small
Business Regulatory Enforcement
Fairness Act of 1996, 5 U.S.C. 804. This
rule will not result in an annual effect
on the economy of $100 million or
more; a major increase in costs or prices;
or significant adverse effects on
competition, employment, investment,
productivity, innovation, or the ability
of United States-based companies to
compete with foreign-based companies
in domestic and export markets.
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Paperwork Reduction Act
Section 221 of Public Law 111–211
permits certain Indian tribes to request
that the United States accept concurrent
jurisdiction to prosecute violations of
the General Crimes Act, 18 U.S.C. 1152,
and the Major Crimes Act, 18 U.S.C.
1153, within that tribe’s Indian country.
This jurisdiction will be concurrent
among the Federal Government, the
State government, and (where
applicable) the tribal government.
Section 221 provides for the United
States to assume concurrent criminal
jurisdiction at the tribe’s request, and
after consultation between the tribe and
the Attorney General and consent to
Federal jurisdiction by the Attorney
General. The Department of Justice will
be submitting the information collection
request set forth below to the Office of
Management and Budget for review and
clearance in accordance with the review
procedures of the Paperwork Reduction
Act of 1995. The information collection
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is published to obtain comments from
the public and affected agencies.
All comments, suggestions, and
questions should be directed to Mr.
Tracy Toulou, Director, Office of Tribal
Justice, Department of Justice, 950
Pennsylvania Avenue, NW., Room 2310,
Washington, DC 20530.
Written comments and suggestions
from the public and affected agencies
concerning the collection of information
are encouraged. Comments on the
information collection-related aspects of
this rule should address one or more of
the following four points:
(1) Evaluate whether the collection of
information is necessary for the proper
performance of the functions of the
agency, including whether the
information will have practical utility;
(2) Evaluate the accuracy of the
agency’s estimate of the burden of the
collection of information, including the
validity of the methodology and
assumptions used;
(3) Enhance the quality, utility, and
clarity of the information to be
collected; and
(4) Minimize the burden of the
collection of information on those who
are to respond, including through the
use of appropriate automated,
electronic, mechanical, or other
technological collection techniques or
other forms of information technology,
e.g., permitting electronic submission of
responses.
Overview of This Information
Collection
(1) Type of Information Collection:
New collection.
(2) Title of the Form/Collection:
Request to the Attorney General for
Assumption of Concurrent Federal
Criminal Jurisdiction.
(3) Agency form number, if any, and
the applicable component of the
Department of Justice sponsoring the
collection: No form. Component: Office
of Tribal Justice.
(4) Affected public who will be asked
or required to respond, as well as a brief
abstract: Primary: Tribal governments.
Other: None.
Abstract: The Department of Justice is
publishing a proposed rule to establish
the procedures for an Indian tribe whose
Indian country is subject to State
criminal jurisdiction under Public Law
280 (18 U.S.C. 1162(a)) to request that
the United States accept concurrent
criminal jurisdiction within the tribe’s
Indian country, and for the Attorney
General to decide whether to consent to
such a request. The purpose of the
collection is to provide information
from the requesting tribe sufficient for
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the Attorney General to make a decision
whether to consent to the request.
(5) An estimate of the total number of
respondents and the amount of time
estimated for an average respondent to
collect the required information is:
Fewer than 350 respondents; 80 hours.
(6) An estimate of the total public
burden (in hours) associated with the
collection: 28,000 hours.
Fewer than 350 Indian tribes are
eligible for the assumption of
concurrent criminal jurisdiction by the
United States. The Department of Justice
does not know how many eligible tribes
will, in fact, make such a request. Since
the enactment of the Tribal Law and
Order Act on July 29, 2010, the
Department of Justice has received three
such requests as of April 1, 2011.
The information collection
requirements contemplated by this
proposed rule are new requirements that
will require a new OMB Control
Number. The Department is seeking
comment on these new requirements as
part of this proposed rule. These new
requirements will require Indian tribes
seeking assumption of concurrent
criminal jurisdiction by the United
States to provide certain information
relating to public safety within the
Indian country of the tribe.
If additional information is required,
contact: Lynn Murray, Department
Clearance Officer, Policy and Planning
Staff, Justice Management Division, U.S.
Department of Justice, Two Constitution
Square, 145 N Street, NE., Suite 2E–502,
Washington, DC 20530.
List of Subjects in 28 CFR Part 50
Administrative practice and
procedure, Crime, Indians.
Accordingly, for the reasons set forth
in the preamble, part 50 of chapter I of
title 28 of the Code of Federal
Regulations is proposed to be amended
as follows:
PART 50—STATEMENTS OF POLICY
1. The authority citation for part 50 is
revised to read as follows:
Authority: 5 U.S.C. 301; 18 U.S.C. 1162;
28 U.S.C. 509, 510; 42 U.S.C. 1921 et seq.,
1973c; and Public Law 107–273, 116 Stat.
1758, 1824.
2. Section 50.25 is added to read as
follows:
§ 50.25 Assumption of concurrent Federal
criminal jurisdiction in certain areas of
Indian country.
(a) Assumption of concurrent Federal
criminal jurisdiction. (1) Section 221 of
Public Law 111–211 permits the United
States to accept concurrent Federal
criminal jurisdiction to prosecute
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violations of 18 U.S.C. 1152 (the General
Crimes, or Indian Country Crimes, Act)
and 18 U.S.C. 1153 (the Major Crimes,
or Indian Major Crimes, Act) within
areas of Indian country in the States of
Alaska, California, Minnesota, Nebraska,
Oregon, and Wisconsin that are subject
to State criminal jurisdiction under
Public Law 280, 18 U.S.C. 1162(a), if the
tribe requests such an assumption of
jurisdiction and the Attorney General
consents to that request. Once the
Attorney General has consented to an
Indian tribe’s request for concurrent
Federal criminal jurisdiction, the
General Crimes and Major Crimes Acts
shall apply in the Indian country of the
requesting tribe, and criminal
jurisdiction over those areas shall be
concurrent among the Federal
Government, the State government, and
(where applicable) the tribal
government. Assumption of concurrent
Federal criminal jurisdiction under
section 221 does not require the
agreement, consent, or concurrence of
any State or local government.
(2) Section 221 also permits the
United States to accept such concurrent
Federal criminal jurisdiction in other
areas of Indian country as to which
States have assumed optional Public
Law 280 criminal jurisdiction under 25
U.S.C. 1321(a), if a tribe so requests and
after consultation with and consent by
the Attorney General. The Department
does not believe, however, that such
requests are necessary, because the
Department understands the applicable
statutes to establish such concurrent
Federal criminal jurisdiction without
the need for a request by a tribe or
acceptance by the United States.
(b) Request requirements. (1) A tribal
request for assumption of concurrent
Federal criminal jurisdiction under
section 221 shall be made by the chief
executive official of a federally
recognized Indian tribe that occupies
Indian country listed in 18 U.S.C.
1162(a). For purposes of this section, a
chief executive official shall include a
tribal chairperson, president, governor,
principal chief, or other equivalent
position.
(2) The tribal request shall be
submitted in writing to the Director of
the Office of Tribal Justice at the
Department of Justice. The tribal request
shall explain why the assumption of
concurrent Federal criminal jurisdiction
will improve public safety and criminal
law enforcement and reduce crime in
the Indian country of the requesting
tribe. The tribe may ask the United
States to assume concurrent criminal
jurisdiction either over all violations of
the General Crimes and Major Crimes
Acts within the tribe’s Indian country or
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16:40 May 20, 2011
Jkt 223001
over a subset of those violations that is
clearly defined in the tribal request.
(c) Process for handling tribal
requests. (1) Upon receipt of a tribal
request, the Office of Tribal Justice
shall:
(i) Acknowledge receipt;
(ii) Open a file;
(iii) Promptly publish a notice in the
Federal Register, seeking comments
from the general public;
(iv) Promptly seek comments from the
relevant United States Attorney’s
Offices, the Federal Bureau of
Investigation, and other Department of
Justice components that would be
affected by consenting to the request;
(v) Promptly seek comments from the
Department of the Interior (including
the Bureau of Indian Affairs), the
Department of Homeland Security, other
affected Federal departments and
agencies, and Federal courts;
(vi) Promptly consult with the
requesting tribe, consistent with
applicable Executive Orders and
Presidential Memoranda on tribal
consultation; and
(vii) Promptly seek comments from
other affected agencies, including State
and local law enforcement agencies.
(2) An Indian tribe may submit a
request at any time. However, requests
received by February 28 of each
calendar year will be prioritized for
decision by July 31 of the same calendar
year, if feasible; and requests received
by August 31 of each calendar year will
be prioritized for decision by January 31
of the following calendar year, if
feasible.
(d) Factors. Factors that may be
considered in determining whether or
not to consent to a tribe’s request for
assumption of concurrent Federal
criminal jurisdiction include the
following:
(1) Whether consenting to the request
will increase the availability of law
enforcement resources for the requesting
tribe, its members, and other residents
of the tribe’s Indian country.
(2) Whether consenting to the request
will improve access to judicial resources
for the requesting tribe, its members,
and other residents of the tribe’s Indian
country.
(3) Whether consenting to the request
will improve access to detention and
correctional resources for the requesting
tribe, its members, and other residents
of the tribe’s Indian country.
(4) Other information received from
the relevant United States Attorney’s
Offices, the Federal Bureau of
Investigation, and other Department of
Justice components that would be
affected by consenting to the request.
PO 00000
Frm 00007
Fmt 4702
Sfmt 4702
29679
(5) Other information received from
the Department of the Interior
(including the Bureau of Indian Affairs),
the Department of Homeland Security,
other affected Federal departments and
agencies, and Federal courts.
(6) Other information received from
tribal consultation.
(7) Other information received from
other sources, including State and local
law enforcement agencies.
(e) Federal comments. (1) The
deciding official shall consider any
comments from the relevant United
States Attorney’s Offices, the Federal
Bureau of Investigation, and other
Department of Justice components.
(2) The deciding official shall
consider any comments from the
Department of the Interior (including
the Bureau of Indian Affairs), the
Department of Homeland Security, other
Federal departments and agencies, and
Federal courts.
(f) Tribal comments. The deciding
official shall consider any comments
from tribes and other tribal sources.
(g) Other comments. The deciding
official shall consider any comments
from State, local, and other sources,
although assumption of concurrent
Federal criminal jurisdiction under
section 221 does not require the
agreement, consent, or concurrence of
any State or local government.
(h) Decision. (1) The decision whether
to consent to a tribal request for
assumption of concurrent Federal
criminal jurisdiction shall be made by
the Deputy Attorney General after
receiving written recommendations
from the Office of Tribal Justice (OTJ),
the Executive Office for United States
Attorneys (EOUSA), and the Federal
Bureau of Investigation (FBI).
(2) The deciding official will:
(i) Consent to the request for
assumption of concurrent Federal
criminal jurisdiction, as of some future
date certain within the next twelve
months (and, if feasible, within the next
six months), with or without conditions,
and publish a notice of the consent in
the Federal Register;
(ii) Deny the request for assumption of
concurrent Federal criminal
jurisdiction; or
(iii) Request further information or
comment before making a final decision.
(3) The deciding official shall explain
the basis for the decision in writing.
(4) A denial of a request for
assumption of concurrent Federal
criminal jurisdiction is not appealable.
However, at any time after such a
denial, a tribe may submit a renewed
request for assumption of concurrent
Federal criminal jurisdiction. A
renewed request shall address the basis
E:\FR\FM\23MYP1.SGM
23MYP1
29680
Federal Register / Vol. 76, No. 99 / Monday, May 23, 2011 / Proposed Rules
for the prior denial. The Office of Tribal
Justice may provide appropriate
technical assistance to any tribe that
wishes to prepare and submit a renewed
request.
(i) Retrocession of State criminal
jurisdiction. Retrocession of State
criminal jurisdiction under Public Law
280 is governed by 25 U.S.C. 1323(a)
and Executive Order 11435 of November
21, 1968. The procedures for
retrocession do not govern a request for
assumption of concurrent Federal
criminal jurisdiction under section 221.
Dated: May 16, 2011.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2011–12541 Filed 5–20–11; 8:45 am]
BILLING CODE 4410–07–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R08–OAR–2010–0303; FRL–9310–1]
Approval and Disapproval and
Promulgation of State Implementation
Plan Revisions; Infrastructure
Requirements for the 1997 8-Hour
Ozone National Ambient Air Quality
Standards; Wyoming
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
EPA is proposing to partially
approve and partially disapprove the
State Implementation Plan (SIP)
submission from the State of Wyoming
to demonstrate that the SIP meets the
requirements of Sections 110(a)(1) and
(2) of the Clean Air Act (CAA) for the
National Ambient Air Quality Standards
(NAAQS) promulgated for ozone on July
18, 1997. Section 110(a)(1) of the CAA
requires that each state, after a new or
revised NAAQS is promulgated, review
their SIPs to ensure that they meet the
requirements of the ‘‘infrastructure
elements’’ of section 110(a)(2). The State
of Wyoming submitted two
certifications of their infrastructure SIP
for the 1997 ozone NAAQS, date
December 7, 2007 and December 10,
2009. EPA does not propose to act on
the State’s May 25, 2007 submission to
meet the requirements of section
110(a)(2)(D)(i) of the CAA, relating to
interstate transport of air pollution, for
the 1997 ozone NAAQS. EPA approved
the State’s interstate transport SIP
submission on May 8, 2008 (73 FR
26019). EPA is also proposing to
approve a Wyoming submittal, dated
May 10, 2011, revising the State’s
emcdonald on DSK2BSOYB1PROD with PROPOSALS
SUMMARY:
VerDate Mar<15>2010
16:40 May 20, 2011
Jkt 223001
Prevention of Significant Deterioration
(PSD) program.
DATES: Written comments must be
received on or before June 22, 2011.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R08–
OAR–2010–0303, by one of the
following methods:
• https://www.regulations.gov. Follow
the on-line instructions for submitting
comments.
• E-mail: dolan.kathy@epa.gov.
• Fax: (303) 312–6064 (please alert
the individual listed in the FOR FURTHER
INFORMATION CONTACT if you are faxing
comments).
• Mail: Director, Air Program,
Environmental Protection Agency
(EPA), Region 8, Mail Code 8P–AR,
1595 Wynkoop Street, Denver, Colorado
80202–1129.
• Hand Delivery: Director, Air
Program, Environmental Protection
Agency (EPA), Region 8, Mail Code 8P–
AR, 1595 Wynkoop Street, Denver,
Colorado 80202–1129.
Such deliveries are only accepted
Monday through Friday, 8 a.m. to
4:30 p.m., excluding Federal holidays.
Special arrangements should be made
for deliveries of boxed information.
Instructions: Direct your comments to
Docket ID No. EPA–R08–OAR–2010–
0303. EPA’s policy is that all comments
received will be included in the public
docket without change and may be
made available online at https://
www.regulations.gov, including any
personal information provided, unless
the comment includes information
claimed to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Do not submit information that you
consider to be CBI or otherwise
protected through https://
www.regulations.gov or e-mail. The
https://www.regulations.gov Web site is
an ‘‘anonymous access’’ system, which
means EPA will not know your identity
or contact information unless you
provide it in the body of your comment.
If you send an e-mail comment directly
to EPA, without going through https://
www.regulations.gov your e-mail
address will be automatically captured
and included as part of the comment
that is placed in the public docket and
made available on the Internet. If you
submit an electronic comment, EPA
recommends that you include your
name and other contact information in
the body of your comment and with any
disk or CD–ROM you submit. If EPA
cannot read your comment due to
technical difficulties and cannot contact
you for clarification, EPA may not be
able to consider your comment.
PO 00000
Frm 00008
Fmt 4702
Sfmt 4702
Electronic files should avoid the use of
special characters, any form of
encryption, and be free of any defects or
viruses. For additional information
about EPA’s public docket visit the EPA
Docket Center homepage at https://
www.epa.gov/epahome/dockets.htm.
For additional instructions on
submitting comments, go to section I,
General Information, of the
SUPPLEMENTARY INFORMATION section of
this document.
Docket: All documents in the docket
are listed in the https://
www.regulations.gov index. Although
listed in the index, some information is
not publicly available, e.g., CBI or other
information whose disclosure is
restricted by statute. Certain other
material, such as copyrighted material,
will be publicly available only in hard
copy. Publicly available docket
materials are available either
electronically in https://
www.regulations.gov or in hard copy at
the Air Program, Environmental
Protection Agency (EPA), Region 8,
1595 Wynkoop Street, Denver, Colorado
80202–1129. EPA requests that if at all
possible, you contact the individual
listed in the FOR FURTHER INFORMATION
CONTACT section to view the hard copy
of the docket. You may view the hard
copy of the docket Monday through
Friday, 8 a.m. to 4 p.m., excluding
Federal holidays.
FOR FURTHER INFORMATION CONTACT:
Kathy Dolan, Air Program, U.S.
Environmental Protection Agency
(EPA), Region 8, Mail Code 8P–AR,
1595 Wynkoop Street, Denver, Colorado
80202–1129. 303–312–6142,
dolan.kathy@epa.gov.
SUPPLEMENTARY INFORMATION:
Definitions
For the purpose of this document, we
are giving meaning to certain words or
initials as follows:
(i) The words or initials Act or CAA
mean or refer to the Clean Air Act,
unless the context indicates otherwise.
(ii) The words EPA, we, us or our
mean or refer to the United States
Environmental Protection Agency.
(iii) The initials SIP mean or refer to
State Implementation Plan.
Table of Contents
I. General Information
II. Background
III. What infrastructure elements are required
under sections 110(a)(1) and (2)?
IV. How did the State of Wyoming address
the infrastructure elements of section
110(a)(2)?
V. What action is EPA taking?
VI. Statutory and Executive Order Reviews
E:\FR\FM\23MYP1.SGM
23MYP1
]]>Agencies
[Federal Register Volume 76, Number 99 (Monday, May 23, 2011)]
[Proposed Rules]
[Pages 29675-29680]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-12541]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
28 CFR Part 50
[Docket No. OAG 142; AG Order No. 3279-2011]
RIN 1105-AB38
Assumption of Concurrent Federal Criminal Jurisdiction in Certain
Areas of Indian Country
AGENCY: Office of the Attorney General, Department of Justice.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: This rule proposes to establish the procedures for an Indian
tribe whose Indian country is subject to State criminal jurisdiction
under Public Law 280 (18 U.S.C. 1162(a)) to request that the United
States accept concurrent criminal jurisdiction within the tribe's
Indian country, and for the Attorney General to decide whether to
consent to such a request.
DATES: Written comments must be postmarked and electronic comments must
be submitted on or before July 7, 2011. Commenters should be aware that
the electronic Federal Docket Management System will not accept
comments after Midnight Eastern Time on the last day of the comment
period.
ADDRESSES: Comments may be mailed to Mr. Tracy Toulou, Director, Office
of Tribal Justice, Department of Justice, 950 Pennsylvania Avenue, NW.,
Room 2310, Washington, DC 20530. To ensure proper handling, please
reference OAG Docket No. 142 on your correspondence. You may submit
comments electronically or view an electronic version of this proposed
rule at https://www.regulations.gov.
FOR FURTHER INFORMATION, CONTACT: Mr. Tracy Toulou, Director, Office of
Tribal Justice, Department of Justice, at (202) 514-8812 (not a toll-
free number).
SUPPLEMENTARY INFORMATION:
Posting of Public Comments. Please note that all comments received
are considered part of the public record and made available for public
inspection online at https://www.regulations.gov. Such information
includes personal identifying information (such as your name, address,
etc.) voluntarily submitted by the commenter.
You are not required to submit personal identifying information in
order to comment on this rule. If you want to submit personal
identifying information (such as your name, address, etc.) as part of
your comment, but do not want it to be posted online, you must include
the phrase ``PERSONAL IDENTIFYING INFORMATION'' in the first paragraph
of your comment. You also must locate all the personal identifying
information you do not want posted online in the first paragraph of
your comment and identify what information you want redacted.
If you want to submit confidential business information as part of
your comment but do not want it to be posted online, you must include
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph
of your comment. You also must prominently identify confidential
business information to be redacted within the comment. If a comment
has so much confidential business information that it cannot be
effectively redacted, all or part of that comment may not be posted on
https://www.regulations.gov.
Personal identifying information and confidential business
information identified and located as set forth above will be placed in
the agency's public docket file, but not posted online. If you wish to
inspect the agency's public docket file in person by appointment,
please see the FOR FURTHER INFORMATION CONTACT paragraph.
The reason the Department is requesting electronic comments before
Midnight Eastern Time on the day the comment period closes is that the
inter-agency Regulations.gov/Federal Docket Management System (FDMS),
which receives electronic comments, terminates the public's ability to
submit comments at Midnight on the day the comment period closes.
Commenters in time zones other than Eastern may want to take this fact
into account so that their electronic comments can be received. The
constraints imposed by the Regulations.gov/FDMS system do not apply to
U.S. postal comments, which will be considered as timely filed if they
are postmarked before Midnight on the day the comment period closes.
Discussion
For more than two centuries, the Federal Government has recognized
Indian tribes as domestic sovereigns that have unique government-to-
government relationships with the United States. Congress has broad
authority to legislate with respect to Indian tribes, however, and has
exercised this authority to establish a complex jurisdictional scheme
for crimes committed in Indian country. (The term ``Indian country'' is
defined in 18 U.S.C. 1151.) Criminal jurisdiction in Indian country
typically depends on several factors, including the nature of the
crime; whether the alleged offender, the victim, or both are Indian;
and whether a treaty, Federal statute, executive order, or judicial
[[Page 29676]]
decision has conferred jurisdiction on a particular government.
Here, three Federal statutes are particularly relevant: the General
Crimes Act (also known as the Indian Country Crimes Act), 18 U.S.C.
1152; the Major Crimes Act (also known as the Indian Major Crimes Act),
18 U.S.C. 1153; and Public Law 280, Act of Aug. 15, 1953, Public Law
83-280, 67 Stat. 588, codified in part as amended at 18 U.S.C. 1162.
Under the General Crimes and Major Crimes Acts, which apply to most of
Indian country, jurisdiction to prosecute most crimes in Indian country
rests with the Federal Government, the tribal government, or both
concurrently. State criminal jurisdiction in Indian country is
generally limited to crimes committed by non-Indians against non-Indian
victims, as well as victimless crimes committed by non-Indians.
But there is an important exception to this general rule: In
certain areas of Indian country, Public Law 280 renders the General
Crimes and Major Crimes Acts inapplicable and instead gives the States
jurisdiction over crimes committed by or against Indians. Specifically,
the Public Law 280 criminal-jurisdiction provision codified at 18
U.S.C. 1162 applies in parts of Alaska, California, Minnesota,
Nebraska, Oregon, and Wisconsin. (Section 1162(a) expressly exempts
some areas of Indian country in these States, such as the Red Lake
Reservation in Minnesota and the Warm Springs Reservation in Oregon;
and some of these States have formally ``retroceded'' jurisdiction over
other reservations.) In the areas of Indian country covered by section
1162, which are known as ``mandatory'' Public Law 280 jurisdictions,
the Federal Government can prosecute violations of general Federal
criminal statutes that apply nationwide, such as Federal narcotics
laws, but typically cannot prosecute violent crimes such as murder,
assault with a dangerous weapon, or felony child abuse.
In contrast, the Public Law 280 provision that is codified at 25
U.S.C. 1321 provides a basis for other States to elect to assume
criminal jurisdiction in Indian country on an optional basis, subject
to the consent of the affected tribe. In the Indian country of these
tribes, known as ``optional'' Public Law 280 jurisdictions, the
Department understands the applicable statutes to provide that the
Federal Government retains concurrent jurisdiction under the General
Crimes and Major Crimes Acts. See U.S. Department of Justice, United
States Attorneys' Manual, tit. 9, Criminal Resource Manual Sec. 688
(Federal Government may exercise concurrent criminal jurisdiction in
``the so-called `option states' * * * which assumed jurisdiction
pursuant to Public Law 280 after its enactment''); United States v.
High Elk, 902 F.2d 660, 661 (8th Cir. 1990) (per curiam) (holding that
Federal courts retain Major Crimes Act jurisdiction in those States
that voluntarily assumed jurisdiction under Pub. L. 280); cf. Negonsott
v. Samuels, 507 U.S. 99, 105-06 (1993) (holding that a different
Federal statute conferred criminal jurisdiction on a State without
divesting the United States of concurrent criminal jurisdiction). But
cf. United States v. Burch, 169 F.3d 666, 669-71 (10th Cir. 1999)
(holding that a 1984 ``direct congressional grant of jurisdiction over
[crimes committed in one town in] Indian country'' vested Colorado with
exclusive jurisdiction akin to mandatory jurisdiction under Public Law
280).
The Tribal Law and Order Act of 2010
The Tribal Law and Order Act of 2010 (TLOA) was enacted on July 29,
2010, as Title II of Public Law 111-211. The purpose of the TLOA is to
help the Federal Government and tribal governments better address the
unique public-safety challenges that confront tribal communities.
Section 221 of the new law permits an Indian tribe with Indian
country subject to State criminal jurisdiction under Public Law 280 to
request that the United States accept concurrent jurisdiction to
prosecute violations of the General Crimes Act and the Major Crimes Act
within that tribe's Indian country. This jurisdiction will be
concurrent among the Federal Government, the State government, and
(where applicable) the tribal government. Section 221 provides for the
United States to assume concurrent criminal jurisdiction at the tribe's
request, and after consultation between the tribe and the Attorney
General and consent to Federal jurisdiction by the Attorney General.
The State need not consent. Once the United States has accepted
concurrent criminal jurisdiction, Federal authorities can investigate
and prosecute offenses that Public Law 280 currently bars them from
prosecuting.
Section 221 does not expressly require Indian tribes to request
that the United States accept concurrent jurisdiction to prosecute
``all'' violations of the General Crimes and Major Crimes Acts within
the tribe's Indian country. To the contrary, the statute provides that
those two Acts ``shall apply in the areas of the Indian country of the
Indian tribe'' only ``at the request of'' the tribe and ``after
consultation with and consent by the Attorney General.'' 18 U.S.C.
1162(d). Therefore, the Department understands section 221 to permit
the tribe to request and the Attorney General, after consultation with
the tribe, to consent to assumption of concurrent Federal jurisdiction
over a limited set of crimes or over crimes in a limited geographic
portion of the tribe's Indian country.
Assumption of Concurrent Federal Criminal Jurisdiction
This rule establishes the framework and procedures for a mandatory
Public Law 280 tribe to request the assumption of concurrent Federal
criminal jurisdiction within the Indian country of the tribe. It also
describes the process to be used by the Attorney General in deciding
whether to consent to such a request.
The TLOA provides that the Attorney General is the deciding
official for requests submitted by Indian tribes under section 221.
Given the potentially high volume of requests, the large number of
Department of Justice components and non-Department partners that
should be conferred with, and the detailed tribe-by-tribe analyses that
will be needed, the Attorney General is delegating decisional authority
under section 221 to the Deputy Attorney General. The Office of the
Deputy Attorney General (ODAG) will receive recommendations from the
Office of Tribal Justice (OTJ), the Executive Office for United States
Attorneys (EOUSA), and the Federal Bureau of Investigation (FBI), after
discussions with other Department components (including the Bureau of
Prisons (BOP) and the Office of Community Oriented Policing Services
(COPS)) and other Federal, tribal, State, and local entities. OTJ will
handle the staffing and tracking of assumption requests.
Pursuant to Executive Order 13175 of November 6, 2000, the
Department has held tribal consultations regarding these proposed
assumption procedures.
Retrocession of State Criminal Jurisdiction
The process described in this rule is separate and distinct from
Public Law 280's ``retrocession'' process for transferring criminal
jurisdiction from the State government to the Federal Government. See
25 U.S.C. 1323(a). The retrocession process is initiated by the State,
not the tribe. By contrast, the process for a tribe to seek assumption
of concurrent Federal criminal jurisdiction under section 221 does not
require the State's approval. And unlike retrocession, a section 221
assumption gives the United States concurrent
[[Page 29677]]
criminal jurisdiction without eliminating the State's criminal
jurisdiction.
After a tribe has submitted a request under section 221, the
Department will publish a notice in the Federal Register inviting input
from affected State and local law enforcement authorities. But
ultimately, it is the tribe's request and the Attorney General's
consent that will determine whether the United States accepts
concurrent criminal jurisdiction.
Where Section 221 Does Not Apply
The process described in this rule applies only to Indian country
that is subject to ``mandatory'' Public Law 280 State criminal
jurisdiction under 18 U.S.C. 1162. As indicated above, the Department
understands that the United States already has concurrent jurisdiction
over General Crimes Act and Major Crimes Act violations in areas where
States have assumed criminal jurisdiction under ``optional'' Public Law
280. Accordingly, although the TLOA requires the United States to
assume concurrent criminal jurisdiction ``[a]t the request of an Indian
tribe, and after consultation with and consent by the Attorney
General,'' 25 U.S.C. 1321(a)(2), the Department does not believe
requests by tribes are necessary to establish concurrent Federal
jurisdiction in such areas.
Regulatory Certifications
Executive Order 12866--Regulatory Planning and Review
This regulation has been drafted and reviewed in accordance with
Executive Order 12866 of September 30, 1993, as amended, Regulatory
Planning and Review, section 1(b), Principles of Regulation. The
Department of Justice has determined that this rule is a ``significant
regulatory action'' under Executive Order 12866, section 3(f), and,
accordingly, this rule has been reviewed by the Office of Management
and Budget.
Executive Order 13132--Federalism
This regulation will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government. The process provided under section 221
allows the United States to assume concurrent criminal jurisdiction
over offenses in a particular area of Indian country, without
eliminating or affecting the State's existing criminal jurisdiction,
and accordingly it imposes no new burdens on the State. This regulation
sets forth the procedural mechanism for the Department to consider, in
consultation with other Federal, tribal, State, and local authorities,
whether or not to consent to a request from an individual tribe for the
Federal Government to assume concurrent criminal jurisdiction within
that tribe's Indian country. Therefore, in accordance with Executive
Order 13132 of August 4, 1999, it is determined that this rule does not
have sufficient federalism implications to warrant the preparation of a
federalism assessment.
Executive Order 12988--Civil Justice Reform
This regulation meets the applicable standards set forth in section
3(a) and (b)(2) of Executive Order 12988 of February 5, 1996.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
This rule comports with Executive Order 13175 of November 6, 2000.
The rule has significant tribal implications, as it will have
substantial direct effects on one or more Indian tribes and on the
relationship between the Federal Government and Indian tribes. The
Department therefore has engaged in meaningful consultation and
collaboration with tribal officials in developing this rule. More
specifically, the Department of Justice participated in six
consultations with tribal officials on the Tribal Law and Order Act of
2010. The dates and locations of those tribal consultations were as
follows:
October 14, 2010, in Billings, Montana
October 20, 2010, in Albuquerque, New Mexico
October 28, 2010, in Miami, Florida
November 16, 2010, in Albuquerque, New Mexico
December 8, 2010, in Palm Springs, California
March 23, 2011, in Hayward, Wisconsin
The last two consultation sessions focused on section 221 of Public
Law 111-211, with the March 23, 2011 consultation expressly addressing
a draft version of this proposed rule.
During these consultations, some tribal officials expressed a
desire to see the Attorney General consent to each and every tribal
request for concurrent Federal criminal jurisdiction. Other tribal
officials raised more specific concerns. In direct response to the
latter, the Department of Justice significantly rewrote portions of the
draft proposed rule. Eight changes are particularly noteworthy.
First, rather than giving priority only to those tribal requests
received by August 31 of any calendar year, the proposed rule now gives
priority to requests received by August 31 or by February 28. This
change effectively doubles the number of annual cycles in which the
Department will consider tribal requests on a prioritized basis.
Second, the proposed rule now allows tribes to ask the United
States to assume concurrent criminal jurisdiction either over all
violations of the General Crimes and Major Crimes Acts within the
tribe's Indian country or over a subset of those violations that is
clearly defined in the tribal request. Thus, requests can now focus on
a limited set of crimes or on crimes in a limited geographic portion of
the tribe's Indian country.
Third, the proposed rule now clarifies why it is unnecessary, under
the Department's understanding of the applicable statutes, for a tribe
in an ``optional'' Public Law 280 jurisdiction to request an assumption
of concurrent Federal criminal jurisdiction.
Fourth, the proposed rule now clarifies that Federal agencies are
to supply comments and information relevant to each tribal request,
rather than merely announcing their overall support or opposition for
each request.
Fifth, the proposed rule reiterates that the assumption of
concurrent Federal criminal jurisdiction under section 221 does not
require the agreement, consent, or concurrence of any State or local
government.
Sixth, the proposed rule now expressly provides that the
Department's Office of Tribal Justice may give appropriate technical
assistance to any tribe that wishes to prepare and submit a renewed
request, following the denial of an earlier request.
Seventh, the proposed rule now states that the assumption of
concurrent Federal criminal jurisdiction will commence within six
months of the decision to assume jurisdiction, if feasible, rather than
merely mandating action within twelve months.
Eighth and finally, the proposed rule now requires that notice of a
decision consenting to the request for assumption of concurrent Federal
criminal jurisdiction will be published in the Federal Register.
The Department of Justice thus believes that many of the concerns
that tribal officials expressed about section 221 and the draft
proposed regulation at the tribal consultations in 2010 and 2011 have
now been met.
[[Page 29678]]
Regulatory Flexibility Act
The Attorney General, in accordance with the Regulatory Flexibility
Act, 5 U.S.C. 605(b), has reviewed this regulation and by approving it
certifies that this regulation will not have a significant economic
impact on a substantial number of small entities. This rule provides
only a framework for processing requests by Indian tribes for the
assumption of concurrent Federal criminal jurisdiction over certain
Indian country crimes, as provided for by section 221.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995, Public Law 104-4.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 251 of the
Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C.
804. This rule will not result in an annual effect on the economy of
$100 million or more; a major increase in costs or prices; or
significant adverse effects on competition, employment, investment,
productivity, innovation, or the ability of United States-based
companies to compete with foreign-based companies in domestic and
export markets.
Paperwork Reduction Act
Section 221 of Public Law 111-211 permits certain Indian tribes to
request that the United States accept concurrent jurisdiction to
prosecute violations of the General Crimes Act, 18 U.S.C. 1152, and the
Major Crimes Act, 18 U.S.C. 1153, within that tribe's Indian country.
This jurisdiction will be concurrent among the Federal Government, the
State government, and (where applicable) the tribal government. Section
221 provides for the United States to assume concurrent criminal
jurisdiction at the tribe's request, and after consultation between the
tribe and the Attorney General and consent to Federal jurisdiction by
the Attorney General. The Department of Justice will be submitting the
information collection request set forth below to the Office of
Management and Budget for review and clearance in accordance with the
review procedures of the Paperwork Reduction Act of 1995. The
information collection is published to obtain comments from the public
and affected agencies.
All comments, suggestions, and questions should be directed to Mr.
Tracy Toulou, Director, Office of Tribal Justice, Department of
Justice, 950 Pennsylvania Avenue, NW., Room 2310, Washington, DC 20530.
Written comments and suggestions from the public and affected
agencies concerning the collection of information are encouraged.
Comments on the information collection-related aspects of this rule
should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for
the proper performance of the functions of the agency, including
whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of
the collection of information, including the validity of the
methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the collection of information on those
who are to respond, including through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology, e.g., permitting electronic
submission of responses.
Overview of This Information Collection
(1) Type of Information Collection: New collection.
(2) Title of the Form/Collection: Request to the Attorney General
for Assumption of Concurrent Federal Criminal Jurisdiction.
(3) Agency form number, if any, and the applicable component of the
Department of Justice sponsoring the collection: No form. Component:
Office of Tribal Justice.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Tribal governments.
Other: None.
Abstract: The Department of Justice is publishing a proposed rule
to establish the procedures for an Indian tribe whose Indian country is
subject to State criminal jurisdiction under Public Law 280 (18 U.S.C.
1162(a)) to request that the United States accept concurrent criminal
jurisdiction within the tribe's Indian country, and for the Attorney
General to decide whether to consent to such a request. The purpose of
the collection is to provide information from the requesting tribe
sufficient for the Attorney General to make a decision whether to
consent to the request.
(5) An estimate of the total number of respondents and the amount
of time estimated for an average respondent to collect the required
information is: Fewer than 350 respondents; 80 hours.
(6) An estimate of the total public burden (in hours) associated
with the collection: 28,000 hours.
Fewer than 350 Indian tribes are eligible for the assumption of
concurrent criminal jurisdiction by the United States. The Department
of Justice does not know how many eligible tribes will, in fact, make
such a request. Since the enactment of the Tribal Law and Order Act on
July 29, 2010, the Department of Justice has received three such
requests as of April 1, 2011.
The information collection requirements contemplated by this
proposed rule are new requirements that will require a new OMB Control
Number. The Department is seeking comment on these new requirements as
part of this proposed rule. These new requirements will require Indian
tribes seeking assumption of concurrent criminal jurisdiction by the
United States to provide certain information relating to public safety
within the Indian country of the tribe.
If additional information is required, contact: Lynn Murray,
Department Clearance Officer, Policy and Planning Staff, Justice
Management Division, U.S. Department of Justice, Two Constitution
Square, 145 N Street, NE., Suite 2E-502, Washington, DC 20530.
List of Subjects in 28 CFR Part 50
Administrative practice and procedure, Crime, Indians.
Accordingly, for the reasons set forth in the preamble, part 50 of
chapter I of title 28 of the Code of Federal Regulations is proposed to
be amended as follows:
PART 50--STATEMENTS OF POLICY
1. The authority citation for part 50 is revised to read as
follows:
Authority: 5 U.S.C. 301; 18 U.S.C. 1162; 28 U.S.C. 509, 510;
42 U.S.C. 1921 et seq., 1973c; and Public Law 107-273, 116 Stat.
1758, 1824.
2. Section 50.25 is added to read as follows:
Sec. 50.25 Assumption of concurrent Federal criminal jurisdiction in
certain areas of Indian country.
(a) Assumption of concurrent Federal criminal jurisdiction. (1)
Section 221 of Public Law 111-211 permits the United States to accept
concurrent Federal criminal jurisdiction to prosecute
[[Page 29679]]
violations of 18 U.S.C. 1152 (the General Crimes, or Indian Country
Crimes, Act) and 18 U.S.C. 1153 (the Major Crimes, or Indian Major
Crimes, Act) within areas of Indian country in the States of Alaska,
California, Minnesota, Nebraska, Oregon, and Wisconsin that are subject
to State criminal jurisdiction under Public Law 280, 18 U.S.C. 1162(a),
if the tribe requests such an assumption of jurisdiction and the
Attorney General consents to that request. Once the Attorney General
has consented to an Indian tribe's request for concurrent Federal
criminal jurisdiction, the General Crimes and Major Crimes Acts shall
apply in the Indian country of the requesting tribe, and criminal
jurisdiction over those areas shall be concurrent among the Federal
Government, the State government, and (where applicable) the tribal
government. Assumption of concurrent Federal criminal jurisdiction
under section 221 does not require the agreement, consent, or
concurrence of any State or local government.
(2) Section 221 also permits the United States to accept such
concurrent Federal criminal jurisdiction in other areas of Indian
country as to which States have assumed optional Public Law 280
criminal jurisdiction under 25 U.S.C. 1321(a), if a tribe so requests
and after consultation with and consent by the Attorney General. The
Department does not believe, however, that such requests are necessary,
because the Department understands the applicable statutes to establish
such concurrent Federal criminal jurisdiction without the need for a
request by a tribe or acceptance by the United States.
(b) Request requirements. (1) A tribal request for assumption of
concurrent Federal criminal jurisdiction under section 221 shall be
made by the chief executive official of a federally recognized Indian
tribe that occupies Indian country listed in 18 U.S.C. 1162(a). For
purposes of this section, a chief executive official shall include a
tribal chairperson, president, governor, principal chief, or other
equivalent position.
(2) The tribal request shall be submitted in writing to the
Director of the Office of Tribal Justice at the Department of Justice.
The tribal request shall explain why the assumption of concurrent
Federal criminal jurisdiction will improve public safety and criminal
law enforcement and reduce crime in the Indian country of the
requesting tribe. The tribe may ask the United States to assume
concurrent criminal jurisdiction either over all violations of the
General Crimes and Major Crimes Acts within the tribe's Indian country
or over a subset of those violations that is clearly defined in the
tribal request.
(c) Process for handling tribal requests. (1) Upon receipt of a
tribal request, the Office of Tribal Justice shall:
(i) Acknowledge receipt;
(ii) Open a file;
(iii) Promptly publish a notice in the Federal Register, seeking
comments from the general public;
(iv) Promptly seek comments from the relevant United States
Attorney's Offices, the Federal Bureau of Investigation, and other
Department of Justice components that would be affected by consenting
to the request;
(v) Promptly seek comments from the Department of the Interior
(including the Bureau of Indian Affairs), the Department of Homeland
Security, other affected Federal departments and agencies, and Federal
courts;
(vi) Promptly consult with the requesting tribe, consistent with
applicable Executive Orders and Presidential Memoranda on tribal
consultation; and
(vii) Promptly seek comments from other affected agencies,
including State and local law enforcement agencies.
(2) An Indian tribe may submit a request at any time. However,
requests received by February 28 of each calendar year will be
prioritized for decision by July 31 of the same calendar year, if
feasible; and requests received by August 31 of each calendar year will
be prioritized for decision by January 31 of the following calendar
year, if feasible.
(d) Factors. Factors that may be considered in determining whether
or not to consent to a tribe's request for assumption of concurrent
Federal criminal jurisdiction include the following:
(1) Whether consenting to the request will increase the
availability of law enforcement resources for the requesting tribe, its
members, and other residents of the tribe's Indian country.
(2) Whether consenting to the request will improve access to
judicial resources for the requesting tribe, its members, and other
residents of the tribe's Indian country.
(3) Whether consenting to the request will improve access to
detention and correctional resources for the requesting tribe, its
members, and other residents of the tribe's Indian country.
(4) Other information received from the relevant United States
Attorney's Offices, the Federal Bureau of Investigation, and other
Department of Justice components that would be affected by consenting
to the request.
(5) Other information received from the Department of the Interior
(including the Bureau of Indian Affairs), the Department of Homeland
Security, other affected Federal departments and agencies, and Federal
courts.
(6) Other information received from tribal consultation.
(7) Other information received from other sources, including State
and local law enforcement agencies.
(e) Federal comments. (1) The deciding official shall consider any
comments from the relevant United States Attorney's Offices, the
Federal Bureau of Investigation, and other Department of Justice
components.
(2) The deciding official shall consider any comments from the
Department of the Interior (including the Bureau of Indian Affairs),
the Department of Homeland Security, other Federal departments and
agencies, and Federal courts.
(f) Tribal comments. The deciding official shall consider any
comments from tribes and other tribal sources.
(g) Other comments. The deciding official shall consider any
comments from State, local, and other sources, although assumption of
concurrent Federal criminal jurisdiction under section 221 does not
require the agreement, consent, or concurrence of any State or local
government.
(h) Decision. (1) The decision whether to consent to a tribal
request for assumption of concurrent Federal criminal jurisdiction
shall be made by the Deputy Attorney General after receiving written
recommendations from the Office of Tribal Justice (OTJ), the Executive
Office for United States Attorneys (EOUSA), and the Federal Bureau of
Investigation (FBI).
(2) The deciding official will:
(i) Consent to the request for assumption of concurrent Federal
criminal jurisdiction, as of some future date certain within the next
twelve months (and, if feasible, within the next six months), with or
without conditions, and publish a notice of the consent in the Federal
Register;
(ii) Deny the request for assumption of concurrent Federal criminal
jurisdiction; or
(iii) Request further information or comment before making a final
decision.
(3) The deciding official shall explain the basis for the decision
in writing.
(4) A denial of a request for assumption of concurrent Federal
criminal jurisdiction is not appealable. However, at any time after
such a denial, a tribe may submit a renewed request for assumption of
concurrent Federal criminal jurisdiction. A renewed request shall
address the basis
[[Page 29680]]
for the prior denial. The Office of Tribal Justice may provide
appropriate technical assistance to any tribe that wishes to prepare
and submit a renewed request.
(i) Retrocession of State criminal jurisdiction. Retrocession of
State criminal jurisdiction under Public Law 280 is governed by 25
U.S.C. 1323(a) and Executive Order 11435 of November 21, 1968. The
procedures for retrocession do not govern a request for assumption of
concurrent Federal criminal jurisdiction under section 221.
Dated: May 16, 2011.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2011-12541 Filed 5-20-11; 8:45 am]
BILLING CODE 4410-07-P
